1. THE FEE AGREEMENT AND THE AMOUNT Preliminary Questions  Hypo:  C comes to your office with a boundary dispute with his neighbor. You agree orally to represent him. You both then sign a written retainer agreement that says only “C will be billed monthly for fees and expenses”. After the first month you send C a bill for services to date.  Do you have a claim for a fee? 1.5(b)  If so, how will it be measured? 1.5(a)  If you disagree on amount, who decides?

Fee Agreement and Amount c’t’d  Hypo: after lawyer and client orally agree to representation, lawyer begins substantial work on the matter, then presents client with a written agreement on fees, specifying in detail what fees are to be changed and how they are to be calculated. Client signs.  Is this agreement enforceable? N. 5 p. 166  Does it meet the requirements of 1.5(b)? If not, what is the consequence?  general law of fiduciary relationships: rebuttable presumption of undue influence!  Double burden of proof on lawyer!

Problem p. 158  After discharge, lawyer bills executor of estate under their K, calling for two fee categories  “customary legal services” to client as executor: 2.5% of value of estate ($24,00)  “additional legal services” to client as defendant in will contest and constructive trust suit: $100/hr x 1020 hrs ($102,000)  Is this total of $126,000 “reasonable”? Are parts of it “reasonable”?  who bears the burden of proof?  what more do we want to know before answering?

Problem p. 158 c’t’d  3 specified practices in determining fees: which if any is impermissible? What is the standard? F.O , p. 161  rounding time up to nearest 15 minutes  flat charge per phone call  surcharge for each litigation file, to cover (i) costs of doing computer research and (ii) costs of photocopying

Problem p c’t’d  Travel for one client, work for another – FO , p. 161  can you bill the time to both?  if not, why not? doesn’t that present a perverse incentive?  3-hour flight, one hour of work for each, bill 3d hour to client for whom you travel?

Problem pp c’t’d  Federal civil rights suit, federal fee- shifting statute awards winner attorneys’ fees – nn. 10, 11 pp  What is the “American rule”? Does it make sense?  Suppose Delores and Walters agree on a fee of $200/hr for his services in this suit. Will that control the fee to be taxed to the defendant?  If not, how will it be measured?  If the award is less than the agreed fee, can Walters still get the difference from Delores?

Types of Legal Fees  “Retainer fees” – can a lawyer charge a minimum fee just for taking the case? How would its “reasonableness” be measured?  What are the problems with “billable hours”? ABA report, p. 169  Alternative approaches  flat rate – how to fix it?  menu of services  fixed amount per time period, with additions  Discounting – how to do this?  Contingent fees