Celebrating its 20th anniversary, Devil's Advocate, the legal fee management and litigation consulting firm, encourages all clients to “look for a good lawyer with relevant experience, who charges a reasonable fee and treats you with respect. Lawyers presenting you with non-negotiable retention terms are not showing you respect. You’ve got to shop around until you find a lawyer who is reasonable, experienced, and trustworthy.”
Examples of bad terms found in some firms’ standard legal fee agreements include
(1) waivers of a firm’s unidentified conflicts of interest,
(2) restricting the client’s legal remedies if there’s a dispute with the lawyer (such as eliminating the right to a jury trial),
(3) tricking the client into allowing improper billing practices (like charging extra for overhead or inflation of time),
(4) narrowing the scope of the lawyer’s representation or duties,
(5) nullifying any fee estimates or budgets,
(6) limiting the client’s right to object to legal fees,
(7) suggesting that the law firm can increase hourly rates by any amount it wants,
(8) allowing the firm to add anyone to the billing team it wants and in any number, or
(9) avoiding the normal rules restricting the lawyer’s ability to abandon the client.
“One telltale sign of a lopsided lawyer retention agreement is that it’s full of obligations for the client and excuses for the lawyer,” according to lawyer and legal consultant John Toothman, the president of Devil’s Advocate.
Devil’s Advocate consults with law firms and businesses to select experienced counsel, draft reasonable fee agreements and budgets, then monitor the firm’s fees and performance. DA works with in-house counsel or provides independent counsel in the clients’ corner for clients without in-house counsel.
To help all clients, Devil’s Advocate published the original “client-friendly”
John Toothman explains why so many clients sign lawyers’ retention agreements without even reading them: “People hire a lawyer to give them legal advice – including advice about whether a contract is reasonable. But, at the threshold of the lawyer-client relationship, the lawyer’s got a personal conflict of interest when it comes to explaining and negotiating the lawyer’s own contract. Lawyers should understand that and warn the client accordingly, yet most do not and few clients even recognize the problem. A careful lawyer might even recommend that you consult with an independent lawyer before signing his or her agreement.”
He continues that, “even if they may not understand all the implications of every clause in a fee agreement, clients can spot a lopsided agreement because there’s nothing in there promising the client anything – it’s all about what the lawyer can get away with or what the client is promising the lawyer, especially when it comes to paying the lawyer.”
Toothman also notes that “when they first meet a new lawyer, clients are distracted by their legal problem and relieved to find a lawyer who will listen to them, so they assume the lawyer won’t take advantage of them. Some lawyers don’t take advantage, but other lawyers use their leverage to make the new client sign a lopsided agreement giving up many of their rights as clients.” The lawyer-client relationship requires the client to have the utmost trust in the lawyer, but these unfair agreements imposed on clients severely undermine that trust.
The solution: “Clients need to act promptly to find a good lawyer, one with relevant experience and a reasonable fee, who ‘fits’ your case or legal situation. You don’t have to sign up with the first lawyer you talk to. Shop around and network with friends or other lawyers,” recommends Toothman. While you must be able to trust your lawyer, when it comes to the lawyer’s agreement it’s still a matter of “caveat emptor” or “buyer beware.”
Strangely, some lawyers who tell every client to read everything carefully and get all agreements in writing do not have a written fee agreement with their own clients or do not give the client time to read one before signing. “Ideally, the client should get the lawyer’s fee agreement in writing, but in most places the client may be far better off with no written agreement, thanks to favorable case law and ethics rules,” says Mr. Toothman.
Mr. Toothman warns potential clients that “legal fees can quickly climb to many times what you expect or can afford, even if the lawyer quoted something much lower. Whenever possible, clients should ask questions or object as soon as something unexpected comes up. And clients have to be ready to replace their lawyer if problems continue.”
Since 1993, Devil’s Advocate LLC has provided cost-effective legal fee management and litigation consulting services to hundreds of clients, law firms, government agencies, and individuals around the United States and internationally. Our services include legal bill reviews, expert testimony, second opinions on litigation issues, litigation monitoring, case post-mortems, legal ethics analysis and opinions, legal malpractice analysis and opinions, law firm selection, legal fee agreement drafting and evaluation, evaluation and testing of legal fee management software, design and analysis of alternative legal fee arrangements, and more. (Devil’
John Toothman, the founder of Devil’s Advocate®, is an experienced trial lawyer and author of dozens of legal publications. With more than 30 years of experience, John graduated from Harvard Law School, was a trial attorney at the US Department of Justice, and has been a partner in Washington, DC, area law firms. John also founded LitWatch®, the legal information service.
John is the author of Trial Practice Checklists 2d (with Douglas Danner) and Legal Fees: Law & Management (with Professor William Ross). His latest publications include the Civilian’s Guide to Lawyers™ e-book series, available through Barnes & Noble’s Nook and Amazon’s Kindle.
John’s free blog for clients is at http://blog.CiviliansGuidetoLawyers.com
Call us at 703-684-6996 or visit our website: http://www.DevilsAdvocate.com