For the Defense - Vol. 4, Issue 4 - 25

fee agreement itself. Rule 1.5(b) requires that "[w]hen
the lawyer has not regularly represented the client,
the basis or rate of the fees shall be communicated to
the client, in writing, before or within a reasonable
time after commencing the representation." This rule
does not require a formal engagement letter or fee
agreement, just some "writing" that memorializes
the agreement between the lawyer and the client on
payment. However, the fee agreement/engagement
letter can be so much more and, as a best practice,
it should be. A fee agreement is your opportunity to
set the stage for the relationship and ensure that the
client understands all the terms of the engagement.
Think about including the following terms in your
standard agreement:
1.	 Scope of the engagement: Be clear about the
matter in which you will enter your appearance
and the stages of the matter that are covered
by the fee; See Rule 1.2(c) ("A lawyer may limit
the scope of the representation if the limitation
is reasonable under the circumstances and the
client gives informed consent.").
2.	 Who will be working on the file: If
applicable, state that associates or contract
attorneys may be used at your discretion to
assist with legal research or appear in court,
if necessary. Clients can be confused when
this happens and failure to inform the client
appropriately of a different lawyer attending
a court appearance can lead to a disciplinary
inquiry.
3.	 How long files will be maintained and
in what form: There is no Rule that requires
that a file be maintained past the end of the
engagement; however, Rule1.15(c), though not
cross-referenced in 1.5, requires that the fee
agreement be kept for five years from the date
that the engagement ends. In my firm, I inform
the client that I will keep a digital copy of the
case file for at least three years and I keep a
copy of the fee agreement for a minimum of
five years.
4.	 Modes of communication: Attorneys are
now including language in their agreements
that confirms that email communication, with
its attendant risk, is an acceptable form of
communication and that the client agrees to
communicating through email. However, more
and more clients are communicating via text

messages. These are hard to maintain in the
file and may include important information
that needs to be preserved. If you do not
wish to communicate important information
over text messages, include that in your fee
agreement. If you do accept text messages,
use an app to pull them off your phone
and preserve them for future use. Here's
one that our firm uses on iPhones: https://
imazing.com/; for Androids use https://
www.mobikin.com/assistant-for-android/.
5.	 Set expectation about communication:
Include in your letter that you will do
your best to respond to any email or text
within 24 hours, and that any important
information will be conveyed promptly.
6.	 Termination: Set out the terms of
termination, including that the client is
always free to terminate your services,
but that you will give appropriate notice
before terminating the relationship. What
is appropriate may vary, depending on the
case. Before you terminate a client: read
Rule 1.16 which sets out guidelines for when
and how termination is appropriate.
Convey these terms in clear, easy to understand
language as any claimed misunderstanding
later will be your responsibility to explain.1 Most
importantly, as a best practice, which can be
critical if there is a future need to defend the
terms of the engagement, have the client countersign the fee agreement.
Rule 1.5 contains no requirement that the
fee agreement stipulate whether the fee is
to be maintained in a trust account or can be
deposited in the operating account. However, in
ODC v. Ostrowski, 135 DB 2008 (2009) the Board
found that language in Attorney Ostrowski's fee
agreement that a fee was a "flat fee" failed to
specify that the funds were nonrefundable and
earned upon receipt and therefore, should not
have been deposited directly into the attorney's
operating account. The Board stated: "The mere
language that the $3,000 was a "flat fee" is
insufficient to transform the retainer automatically
into Respondent's personal property. Respondent
should have deposited the funds into a trust
account. It is crucial that a client understand how
money is handled by the attorney." If you are
negotiating a flat non-refundable fee - include the
Vol. 4, Issue 4

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For The Defense

25


https://www.imazing.com/ https://www.imazing.com/ https://www.mobikin.com/assistant-for-android/ https://www.mobikin.com/assistant-for-android/

For the Defense - Vol. 4, Issue 4

Table of Contents for the Digital Edition of For the Defense - Vol. 4, Issue 4

Contents
For the Defense - Vol. 4, Issue 4 - 1
For the Defense - Vol. 4, Issue 4 - 2
For the Defense - Vol. 4, Issue 4 - Contents
For the Defense - Vol. 4, Issue 4 - 4
For the Defense - Vol. 4, Issue 4 - 5
For the Defense - Vol. 4, Issue 4 - 6
For the Defense - Vol. 4, Issue 4 - 7
For the Defense - Vol. 4, Issue 4 - 8
For the Defense - Vol. 4, Issue 4 - 9
For the Defense - Vol. 4, Issue 4 - 10
For the Defense - Vol. 4, Issue 4 - 11
For the Defense - Vol. 4, Issue 4 - 12
For the Defense - Vol. 4, Issue 4 - 13
For the Defense - Vol. 4, Issue 4 - 14
For the Defense - Vol. 4, Issue 4 - 15
For the Defense - Vol. 4, Issue 4 - 16
For the Defense - Vol. 4, Issue 4 - 17
For the Defense - Vol. 4, Issue 4 - 18
For the Defense - Vol. 4, Issue 4 - 19
For the Defense - Vol. 4, Issue 4 - 20
For the Defense - Vol. 4, Issue 4 - 21
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For the Defense - Vol. 4, Issue 4 - 23
For the Defense - Vol. 4, Issue 4 - 24
For the Defense - Vol. 4, Issue 4 - 25
For the Defense - Vol. 4, Issue 4 - 26
For the Defense - Vol. 4, Issue 4 - 27
For the Defense - Vol. 4, Issue 4 - 28
For the Defense - Vol. 4, Issue 4 - 29
For the Defense - Vol. 4, Issue 4 - 30
For the Defense - Vol. 4, Issue 4 - 31
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For the Defense - Vol. 4, Issue 4 - 33
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For the Defense - Vol. 4, Issue 4 - 43
For the Defense - Vol. 4, Issue 4 - 44
For the Defense - Vol. 4, Issue 4 - 45
For the Defense - Vol. 4, Issue 4 - 46
For the Defense - Vol. 4, Issue 4 - 47
For the Defense - Vol. 4, Issue 4 - 48
For the Defense - Vol. 4, Issue 4 - 49
For the Defense - Vol. 4, Issue 4 - 50
For the Defense - Vol. 4, Issue 4 - 51
For the Defense - Vol. 4, Issue 4 - 52
For the Defense - Vol. 4, Issue 4 - 53
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For the Defense - Vol. 4, Issue 4 - 57
For the Defense - Vol. 4, Issue 4 - 58
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