- Does the bar even regulate lawyers, and to what standards are lawyers held?
The Bar does in fact have a regulatory process, and lawyers are in fact disciplined for infractions of the Rules. The ethics rules for lawyers in Washington are called the Rules of Professional Conduct (RPCs) and they can be found on the bar’s website. See link in Resources of this website. These rules are adopted by our state Supreme Court and published with all other Washington Court rules. They were recently amended in September 2006, where a major revision was made to many rules. The RPCs are based on a Model set of rules adopted by the American Bar Association. Washington’s current RPCs are substantially similar to the ABA Model Rules but are by no means identical.
Violations of the RPCs can subject tan attorney to discipline which can range from an admonishment to disbarment, depending on the seriousness and number of charges and prior disciplinary record. The Bar does not referee or determine fee disputes between lawyers and clients, although it does have a low-cost, voluntary fee dispute mediation and arbitration program available if both parties submit their dispute. |
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- How do lawyers generally charge for legal services?
There are a number of fee arrangements typically used by lawyers to compensate them, including:
- Hourly – the client is billed at an agreed rate for services on a matter.
- Contingency – the lawyer is paid at the end of the case a percentage of what is actually recovered.
- Flat – the lawyer is engaged for a discrete legal task, such as defending a misdemeanor prosecution and is paid a specific fee.
- Blended – can involve some combination of two or more of the above.
- Other – due to client dissatisfaction with the traditional fee arrangements, lawyers and clients are seeking new methods of lawyer compensation.
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- What must a lawyer’s fee agreement consist of?
| In a contingency fee arrangement, the agreement must be in writing and what must go into the writing is specified in RPC 1.5(d), which states:
All other types of fee arrangements should be in writing and the Bar encourages written agreements here but does not require them. I would not be surprised if written agreements are not required in all legal engagements eventually. At present, however, non-contingency fee agreements may be oral, although the author strongly advises against them, as being contrary to the best interests of both lawyer and client. |
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- How does a client go about identifying and hiring a lawyer?
| Unsophisticated clients look in the yellow pages, go to on-line lawyer directories, or get referrals from medical care providers (such as in personal injury claims). All of these are unwise, as one does not really learn enough to make an informed decision. See CLIENTS' TEN COMMANDMENTS OF RETAINING COUNSEL, elsewhere in this site, for suggested steps for identifying the right lawyer and hiring her or him. |
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- Are lawyer’s fees regulated at all?
| Yes – and no. Neither the Bar nor the Legislature regulates specific hourly rates, the amount of flat fees or the maximum contingency fee percentage that a lawyer can charge. These are a matter of contract between the lawyer and client, subject to the overriding rule that a lawyer may not charge an unreasonable fee. Nonetheless, a client may challenge the reasonableness of fees charged in any case, and in certain cases such as tort claims or medical malpractice claims, the Court in which the case has been brought may be called upon to determine the reasonableness of attorney’s fees. In any fee litigation in which the attorney’s fees are challenged as unreasonable, the Court or arbitrator must determine the reasonableness of such fees. |
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- How does a client go about identifying and hiring a lawyer?
| Unsophisticated clients look in the yellow pages, go to on-line lawyer directories, or get referrals from medical care providers (such as in personal injury claims). All of these are unwise, as one does not really learn enough to make an informed decision. See CLIENTS' TEN COMMANDMENTS OF RETAINING COUNSEL, elsewhere in this site, for suggested steps for identifying the right lawyer and hiring her or him. |
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- What must a lawyer’s fee agreement consist of?
In a contingency fee arrangement, the agreement must be in writing and what must go into the writing is specified in RPC 1.5(d), which states:
All other types of fee arrangements should be in writing and the Bar encourages written agreements here but does not require them. I would not be surprised if written agreements are not required in all legal engagements eventually. At present, however, non-contingency fee agreements may be oral, although the author strongly advises against them, as being contrary to the best interests of both lawyer and client.
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- What if I like the lawyer and believe she would be an excellent choice for my case but I don’t agree with the fee arrangements. What can I do?
| Fee arrangements between a lawyer and client are sort of arms length’s bargaining. Ethical rules limit what a lawyer can do in fee arrangements, but a client can negotiate any arrangement the lawyer will agree to. Some lawyers will negotiate on hourly rates, contingency fee per centages, the size of retainers, the amount of a flat fee and even payment terms. You are free to seek to negotiate one or more of these terms. “There’s no harm in asking!” However, keep in mind if you are trying to drive a hard bargain with your soon-to be lawyer, that in the end, you will probably get what you pay for. If your fee arrangement is unattractive to the lawyer, he might not be as eager to work on your case as he is with others with better fee arrangements. |
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- What is typical of the fee arrangement discussion between lawyer and client in the initial interview?
| There is no such thing as “typical.” Many lawyers hate to discuss fees so some don’t even mention them. Others glide over them quickly and hit the high points only. Some lawyers merely send the fee agreement home to read and others tell you to read it in the reception area and sign it before you leave. Better lawyers (or at least the ones with better office practices) will discuss fee arrangements at length, answer your questions, and explain complicated areas. An even better practice though not terribly common is to go over the written fee agreement paragraph by paragraph, explaining each in detail and soliciting questions. The better practitioners will still send the fee agreement home to be read, signed and returned. Some lawyers will also give you a written statement of billing practices. |
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- What is “independent counsel?”
| Independent counsel is another lawyer of your own choosing who would independently advise you of the meaning and effect of the proposed changes to the fee agreement and advise you on whether to go along with it or not. This lawyer is at your own expense. Getting independent counsel is not required, but if the proposed modification could involve a substantial increase in fees, you cannot afford not to have it reviewed. |
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- What if I just don’t want to change the fee agreement? What can I do?
| Simply refuse. If the original fee agreement is fair to both sides and the lawyer is just seeking a bigger fee, he or she will probably abide by the initial agreement. If the lawyer is insistent and you are not in agreement to the modification, the lawyer can always withdraw as your counsel. If he or she does so in a contingency fee arrangement, the lawyer gives up any entitlement to be paid for legal services. |
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- What if I have a question or an objection to a monthly billing?
| Contact the lawyer immediately, describe the concern or objection, and if your inquiry does not result in an acceptable accommodation, put your question of objection in writing. It is not advisable to pay for services where you have an objection. Good lawyers will not quibble with clients over small amount sin bills. All lawyers have an obligation under the RPCs to respond to questions about billings and matters involving costs. |
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- What if I am not able to pay the lawyer’s bill in full. Does the lawyer have the right to charge interest?
| Yes – lawyers are no different than other professionals. When they extend credit involuntarily, they are entitled to be compensated for the time value of their money. The fee agreement can provide for the payment of interest on past due balances. Even if it does not, Washington has a statute that imputes interest at the rate of 12% per annum simple interest. Lawyers may not charge compound interest or interest in excess of 12% per annum. By Washington law, payments made by clients are applied to accrued interest first, then to the principal balance. |
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- Are there rules as to what a lawyer may not charge for on an hourly case?
Yes – but this can become a very complicated question, and the rules are not neatly laid out in a single RPC rule. However, within the rule that all fees charged must be reasonable, a lawyer may not charge as follows:
• For mere clerical work such as filing, simple typing, answering the phone or photocopying, where the lawyer’s hourly rate is large enough to encompass ordinary office overhead.
• For tasks that served no purpose of the client (this is different than pursuing a particular claim or legal theory and losing)
• For time in excess of what the task should reasonably have taken.
• For billing ore responding to inquiries or complaints about bills.
• For office overhead such as computerized legal research for which the lawyer pays his or her provider a flat monthly rate. (A lawyer may charge a client for the additional cost of (out of plan legal research, i.e. in other states where the research was necessary to the case)
• For costs where the charge exceeds the actual cost to the lawyer (e.g. photocopies – the lawyer cannot charge $.15 per page where the actual cost is only $.05 per page). A lawyer cannot charge for faxes and emails where there is no actual cost to the lawyer.
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- What if my relationship with my contingency lawyer is not working out. May I terminate that lawyer and what are the consequences?
| Again, you can terminate your lawyer at any time for any reason, for no reason, or even a bad reason lawyer. A contingency fee lawyer cannot sue for breach of contract because he or she was terminated. If you terminate this lawyer, you owe that lawyer for his or her costs advanced and if the lawyer has not substantially performed his contingency (usually meaning having obtained a settlement that you have authorized), the terminated lawyer is entitled to receive the reasonable value of the work done up to termination, on what is known as a quantum meruit basis. In Washington, this usually means a reasonable hourly rate multiplied by the reasonable number of productive hours put into the case before termination. The lawyer has the burden of proving this. |
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- In that case, is that the end of it?
| No – because even if a contingency fee is deemed earned because of substantial performance, you as the client can still challenge the fee as unreasonably high. Again, any fee must be reasonable in dollar amount. A challenge in a tort or medical malpractice case can challenge the amount of the fee in court by filing a petition with the judge, and the judge must determine if the earned fee is reasonable. A court can do the kind of weighting that the law provides for an rule that a contingency fee clearly provided for under an agreement is excessive and unreasonable. |
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- If it turns out that I have a fee dispute with my lawyer, where would that dispute ordinarily be resolved.
It depends on a number of factors. The fee agreement may provide for arbitration of any fee dispute, either with the Bar’s low cost program, or elsewhere. The arbitration clause may or may not be enforceable, depending on circumstances too complicated to discuss here. You should seek counsel on whether arbitration is a good idea for your dispute and if not, are there grounds to challenge it. If the case is a tort or legal malpractice case, a petition to the court in which the underlying case is filed may be made for a determination of reasonableness. These are relatively rare but the author has tried several of these. The lawyer can sue you for fees in court, or you as the client can sue the lawyer for a fee reasonableness determination. Lastly, if the lawyer has filed an attorney’s lien in your case to secure her unpaid fees, the lawyer can ask the court to foreclose the lien and as part of that process, the court must determine the reasonableness of fees charged or to be charged.
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- What is an attorney’s lien?
| An attorney’s lien is a means of securing the lawyer’s entitlement to compensation for the work done on the case where the lawyer is claiming fees. This process is governed by a very poorly worded archaic state statute in title 60 of the Revised Code of Washington. The attorney’s lien is too complicated to discuss herein but it is discussed in another article on this website. |
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