Fees

Question 1

In what situations is a letter of engagement not required?

Answer 1

A letter of engagement is NOT necessary when any of the following…

• *1. Representation is expected to cost less than $3,000
  2. Representation where the attorney’s services are of the same general kind as previously rendered and paid for by the client
• *3. In a domestic relations matter (different, proceedures necessary)
  4. Representation where no material portion of the services are to be rendered in New York

**NOTE: in 1 & 3, you STILL have to explain the scope of the representation and the basis of the rate

Question 2

What must go in a written letter of engagement?

Answer 2

In NEW YORK, we require written letters of engagement It must include:

1. Scope of representation	
2. Explanation of fees and expenses	
3. Notice of client’s right to arbitration of fee disputes	

NOTE: a SIGNED retainer agreement can take the place of an engagement letter, IF it contains the items above

Question 3

What special rules apply to client engagement with respect to domestic relations matters?

Answer 3

1) Fee agreement must be signed by lawyer and client
* *Cf. Letter of engagement where NO signature is required

2) Lawyer must provide client with statement of rights and responsibilities (and a signed acknowledgment)
3) There are NO non-refundable fees in domestic matters (**OR any other matter) Must return unused portion

4) Cannot use contingency fee to collect unpaid alimony or child support (different frome MPRE rule!**)

5) Periodic billing must be sent out every 60 DAYS, and at the conclusion of the case, the attorney must send back any unused portion of the retainer

Question 4

What is a reasonable contingent fee?

Answer 4

Generally 33% is reasonable.

And it CAN’T be more than 33% in personal injury or wrongful death.

Question 5

What information goes in a contingency fee agreement?

Answer 5

1) The method by which the fee is to be determined including the percentage or percentages in that will accrue to the lawyer in the event of settlement, trial, or appeal.
2) Litigation or other expenses to be deducted from the recover
3) Whether such expenses are to be deducted before or, if not prohibited by statute or court rule, after the contingent fee is calculated. In personal injury or wrongful death matters: the expenses must be deducted before the lawyer’s contingency fee is calculated
4) What expenses the client will be liable for REGARDLESS of the outcome of the case

Question 6

What is a closing statement?

Answer 6

Upon the conclusion of a contingent fee matter, the lawyer must provide the client in writing with a statement of the outcome and if there is a recovery, the amount the client gets and how it’s determined

Question 7

In which matters are contingent fees prohibited?

Answer 7

Contingent FEES are prohibited in:

1. Criminal matters (or quasi-criminal)
   In order to rise to an ineffective assistance of counsel claim, ∆ must show that the Rule violation affected the defense (unlikely)
2. Domestic relations matters
   NOTE: Cannot use contingency fee to collect unpaid alimony or child support (different frome MPRE rule!)

Question 8

Can a lawyer fee-split or share office space with a non-lawyer?

Answer 8

OFFICE SPACE. An attorney can share space as long as it’s separate and appears so to the public

BUT, generally, NO fee-splits.

1) Can’t divide a legal fee with a non-lawyer
2) Can’t be a partner with a non-lawyer if the partnership if involves practice of the law.
3) A lawyer cannot give anything of value to a person or organization to recommend or obtain employment by a client ,or as a reward for having made a recommendation resulting employment by a client. This means that referral fees are not permitted

EXCEPTIONS: Payments for salaries, retirement plans, bonuses, profit sharing . . .
Payments to the spouse of the deceased partner or to the estate of deceased partner
You can split fees with lawyers under certain circumstances

Question 9

Can a lawyer fee-split with an OUTSIDE lawyer?

Answer 9

A lawyer shall not divide a fee for legal services with another lawyer who is not associated in the same law firm UNLESS…

The division is:
1) In proportion to the percentage of work performed; OR

1B) In a writing given to the client that each lawyer assumes joint responsibility for the representation

2) The client consents to employment of another lawyer after a full disclosure that division of fees will be made (including the percentage of fees each lawyer will receive), and the client’s agreement is confirmed in writing; AND
3) The total fees of both lawyers combined is not excessive.

NOTE: Lawyer formerly associated can still be paid as per separation or retirement agreement.

Question 10

What is the rule in NY for fee dispures over CIVIL matters?

Answer 10

You have to allow clients to elect arbitration
Clients must be informed of this right:
1) in the letter of engagement; AND
2) when a fee dispute arises

EXCEPTIONS when arbitration is not mandatory:

1. Representation in criminal matters
2. Amounts in dispute involving LESS than $1,000 or MORE than $50,000
3. Claims involving substantial legal questions including legal malpractice
4. Disputes where the fee to be paid by the client has been determined pursuant to statute or rule and allowed as of right a court
5. Dispute where NO attorney’s services have been rendered for more than 2 YEARS