Billing Clients: An Ethical and Best Practices Primer for Family Law Practitioners

• Author: Marcy Tench Stovall
• Pages: 36-39

36 FAMILY ADVOCATE www.shopaba.org

require fee agreements to be in writing. Instead, those states

indirectly encourage lawyers to put their fee agreements in

writing by identifying the presence or absence of a written

fee agreement as one of the factors that determines whether a

fee is reasonable under Rule 1.5(a).

And there are other variations in the states’ adoption of

Rule 1.5, some of particular note for family law practitioners.

For example, New York’s Rule 1.5(b) directs that fee agree-

ments “shall be in writing where required by statute or court

rule”; New York’s substantive law requires a written fee

agreement in all domestic relations matters, and the agree-

ment must include much more than what Rule 1.5 requires

the lawyer to communicate to the client at the beginning of

the representation. In addition, New York’s Rule 1.5(d)(1)

provides that a lawyer may not collect “any fee in a domestic

relations matter” if, among other things, there is no written

fee agreement signed by the lawyer and the client. Hawaii’s

Rule 1.5 does not require that hourly fee agreements be in

writing. But if the lawyer wants to charge a at fee, the

agreement must be in writing, signed by the lawyer and the

BILLING

CLIENTS

Fee Agreements Should Be in Writing

e most basic necessity for proper management of fees and

billing is having a written engagement agreement. is is a

matter of best practices and is not always an ethical obliga-

tion. One surprising thing about the Model Rules of

Professional Conduct (adopted in some version in every U.S.

jurisdiction) is that they do not require that hourly fee

agreements be in writing. Rule 1.5 of the Model Rules

provides only that the basis of the fee and the scope of the

representation “be communicated to the client preferably in

writing” at the beginning of the representation (emphasis

added). While the Model Rules require that contingency fee

agreements be in writing and signed by the client, such

agreements are not permitted in most family law matters.

Review of the ABA’s Jurisdictional Rules Comparison

Chart, current as of December 11, 2018, shows that a

substantial majority of states follow the guidance of the

Model Rules and have adopted the “preferably in writing”

approach to fee agreements.

At least two states (Tennessee and Washington) do not

An Ethical and Best Practices Primer

for Family Law Practitioners

By MARCY TENCH STOVALL

Published in Family Advocate, Volume 42, Number 4, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.