Fee Agreements: Types, Provisions, Ethical Boundaries, and Other Considerations-part Ii
| Publication year | 2002 |
| Pages | 35 |
| Citation | Vol. 31 No. 2 Pg. 35 |
2002, April, Pg. 35. Fee Agreements: Types, Provisions, Ethical Boundaries, and Other Considerations-Part II
Vol. 31, No. 2, Pg. 35
The Colorado Lawyer
April 2002
Vol. 31, No. 4 [Page 35]
April 2002
Vol. 31, No. 4 [Page 35]
Departments
Law Practice Management
Fee Agreements: Types, Provisions, Ethical Boundaries, and Other Considerations - Part II
by G. Michael Schuyler
Law Practice Management
Fee Agreements: Types, Provisions, Ethical Boundaries, and Other Considerations - Part II
by G. Michael Schuyler
This article was written by G. Michael Schuyler, a principal
of the Denver firm of Law Offices of G. Michael Schuyler, and
a member of the CBA Ethics Committee - (303) 572-9400
Readers interested in submitting an article for this
Department should contact Chris Van Coney at (303) 863-9500
or logsc@earthlink.net
Part I of this article reviewed various types of fee
agreements; discussed some pertinent Colorado case law; and
addressed some recent developments, both legal and ethical
that will affect how fee agreements will be drafted in the
future.1 This Part II discusses various types of provisions
for Colorado attorneys to consider including in their fee
agreements and also addresses some provisions that probably
should not be included.
In connection with every representation, there are matters
that should be considered as essential elements of the fee
agreement, in addition to the actual fee itself. These
elements, which are discussed below, differ to some extent
based on the factual circumstances of the representation and
the type of case involved (for example, personal injury,
transactional services, workers' compensation, or
criminal defense). However, regardless of the surrounding
factual circumstances or the type of representation, a
well-drafted fee agreement that addresses these essential
elements may be the single most important document prepared
during the course of the representation.
The Identity of the Client
Putting the identity of the client into the agreement seems
obvious, but this key element is often missed. An attorney
who is retained by an organization owes allegiance to the
organization itself, not to individual stockholders,
directors, officers, employees, or other persons associated
with the entity.2 Similarly, a party other than the client is
sometimes obligated to pay the legal fees. This situation
most commonly occurs in connection with the representation of
an insured (the client)3 where the insurance company is
paying the bill. The ethical rules prohibit an attorney from
accepting compensation from someone other than the client,
unless the following requirements have been met: the client
has consented after consultation; there is no interference
with the lawyer's independent professional judgment or
with the attorney-client relationship; and the information
relating to the representation is protected by the
attorney-client privilege.4
Issues concerning the identity of the client also may arise
where the client is under a disability. In this situation,
the attorney has an ethical obligation to try to maintain a
normal attorney-client relationship with that individual,
including discussing issues, allowing time for deliberation,
and recognizing that even a client under a disability can
reach conclusions about matters affecting his or her own
well-being.5 In these and other types of situations where
there may be some ambiguity concerning the actual identity of
the client, attorneys should make sure they have a written
fee agreement that clearly identifies the client at the
outset of the representation.
Scope/Limit of Representation
Equally as important as the specific identity of the client
is a description of the services to be performed or not to be
performed. Attorneys should clearly define the type of work
to be done, the specific tasks that are likely to be
involved, and any limitations on the representation. Colorado
Rules of Professional Conduct ("Colo.RPC" or
"Colorado Rules") Rule 1.2(c) allows the attorney
to limit the scope and/or the objectives of the
representation if the client consents after consultation.
Although the scope of representation can be limited, the
attorney cannot contract away the obligations of competence
and diligence, or otherwise limit liability for negligent
legal advice.6
With regard to limitations on the scope of representation,
the Colorado Rules of Civil Procedure ("C.R.C.P.")
now permit an attorney to provide "unbundled" legal
services to a pro se party in a court proceeding.7 However,
be aware that although the Colorado state courts permit this
"unbundling," the U.S. District Court for the
District of Colorado does not permit this limited
representation in litigation matters.8
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