The question often arises as to how an attorney sets his rates as and for attorney’s fees. Both recent case law and the rules of professional conduct set forth the criteria that an attorney must consider. They include the following:
- The nature of the litigation.
- The difficulty of the action.
- The amount of time expended for the learning, experience, and skill of the attorney.
- The intricacies and importance of the litigation.
- The necessity for skilled legal training and ability in trying the case.
- The responsibility undertaken by the attorney.
- The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
- The nature and length of the professional relationship with the client.
- The time limitations imposed by the client or the circumstances.
Based upon these criteria, we have entered into a written Attorney Fee Agreement which we have both signed and of which you have received a copy.
We should inform you that, under Business and Professions Code Section 6200, you have the right to compel arbitration of a fee dispute if you so desire. The arbitration is voluntary on your part and mandatory on our part. Furthermore, effective January 1, 1987, the Business and Professions Code Section 6148 provides that, in any case in which it is reasonably foreseeable that the total expenses of a case-including attorneys fees-will exceed $1,000.00, a fee contract must be in writing and shall contain the hourly rate, the general nature of the legal services to be provided and the respective responsibilities of the attorney and the client. We have entered into such a written fee agreement. You have received a copy of the agreement and an additional copy has been or will be forwarded to you, together with a letter explaining, once again, the terms and conditions of the written contract. The new statute also provides that the bill for services from the attorney shall state the amount, rate and basis for the fee calculation. The failure to comply with these provisions renders an agreement voidable at the client’s option, at which point the attorney shall not be entitled to collect fees pursuant to the contract but shall be entitled to collect a reasonable fee under all the circumstances.
From time to time, you may question why you are being charged for a specific item or the appropriateness of the amount charged. Please do not hesitate to contact us directly and immediately. Our policy is that, any time a client wants to discuss the fees being charged, we will do so at absolutely no charge whatsoever to the client. You should not let the little things build up and eventually get blown all out of proportion. We have been known to make a mistake from time to time with respect to our billings and we are always ready to stand corrected.
One last note on attorney’s fees. You may have been told by your friends, television, or the public in general, that under California law, the husband almost always is required to pay the wife’s attorney’s fees. Unfortunately or fortunately, depending on your sex, the Equal Rights Movement and the new Dissolution of Marriage Statute in California have required that more and more wives pay their own attorney’s fees. The court can still order the payment of attorney’s fees by the husband; however, this is not done as much as in the past. Therefore, you should be advised that we will expect our fee to be paid by the person who is our client, since that person is the one who receives our services. We cannot agree to accept payment from any person other than our client, unless an acceptable fee is guaranteed by the other attorney and paid prior to the final Decree.
I want you to be advised that I will expect payment of my fee on an “as you go basis.” For the reasons that I have explained to you, I cannot be put in the position where I am your advocate and your banker. I cannot finance the dissolution of your marriage. However, if for any reason, any of my fee remains unpaid by the time the Judgment of Dissolution is entered or the Marital Settlement Agreement is signed, I will expect my fee to be paid in full. Rather than having an unhappy scene with the clients who have not paid, and perhaps have forgotten what is said, I have written this letter and I want you to understand clearly my policy and philosophy in order that we may have a successful relationship.
On top of attorney’s fees, it will be necessary to employ expert witnesses such as, an appraiser to appraise the property, an actuary to appraise the retirement benefits, and an accountant to consider the tax aspects. Whether or not any or all of these must be hired will depend upon many factors to be determined in the future, including whether or not this case goes to trial.
In going through all the possibilities, I am attempting to “scare you to death” with the potential expense of the dissolution of your marriage. It may very well be that the expenses will not be this high. However, I am firmly convinced that clients must always know the outside range of the costs of dissolving their marriage.