B-law B-law B-law: Ethics for Business Lawyers Flat Fee Engagements

• Jurisdiction: California,United States
• Author: Neil J Wertlieb
• Citation: Vol. 2021 No. 1
• Publication year: 2021

B-Law B-Law B-Law: Ethics for Business Lawyers Flat Fee Engagements

Neil J Wertlieb

Neil J Wertlieb, the author of this article, is a Founding Member and Co-Chair of the California Lawyers Association Ethics Committee. Mr. Wertlieb is an experienced transactional lawyer, educator, and ethicist, who provides expert witness services in disputes involving business transactions and corporate governance, and in cases involving attorney malpractice and attorney ethics. For additional information, please visit www.WertliebLaw.com. The views expressed herein are his own.

This edition of B-Law B-Law B-Law addresses the ethical constraints on lawyers charging a flat fee for legal services, and provides some practical guidance on entering into such fee agreements. Continue to watch this column for guidance on ethical issues of particular interest to business lawyers in the State of California.

Although business lawyers usually charge clients for their services on an hourly basis, sometimes, based on the nature of the assignment and/or the needs of the client, lawyers will charge a flat (or fixed) fee for specified services. Such a flat fee is a fixed amount, charged by a lawyer and agreed to by the client, that constitutes payment in full for the performance by the lawyer of such specified services—regardless of the amount of work ultimately required to complete the task. Flat fees provide a benefit to the client by managing expectations and cost uncertainty.

Common examples of business-related flat fee arrangements include the following routine matters: formation of a business entity; documentation for an early-round equity financing; preparation and review of periodic filings with the Securities and Exchange Commission; and contracts for specific matters (e.g., an employment agreement for an executive, a non-disclosure agreement, a lease agreement, or a settlement agreement).

Setting the amount of a flat fee generally requires an estimate of the amount of time (and perhaps other resources) anticipated through completion of the specified tasks, an assessment of the risks and likelihood that the actual amount of time required may be materially in excess of such estimate, and the implementation of controls to help minimize such risks. The use of a flat fee also requires compliance with the Rules of Professional Conduct applicable to all attorneys in the State of California.

Although the Rules of Professional Conduct expressly permit¹ a lawyer to "make an agreement for...