Representation Agreement: Your Attorney and You

No matter how well you know your attorney or how simple you think your case is, you should always have a written representation agreement (sometimes called a fee agreement) with your lawyer. This contract outlines the terms of the attorney-client relationship and the fees and compensation you owe.

Below, you’ll learn why it’s a good idea to have a formal agreement with your lawyer. You can also read more about what these agreements include. When you’re ready to retain a lawyer, use FindLaw’s attorney directory to start comparing your options. 

Reasons To Have a Written Representation Agreement

Under American Bar Association (ABA) rules, only contingency fee cases must be in writing. But, experienced attorneys and smart clients will put all legal fee agreements in writing.

Having a written agreement with your attorney holds everyone accountable. Legal problems between lawyers and clients are usually about money. There are disputes over the lawyer’s fees or what is due to the client. A written contract avoids these disputes by letting the parties review the contract and find the source of the disagreement.

Other reasons for a written fee agreement include communication and control over the case. The client has the final say over how the case proceeds. If a client wants notification of specific events or other details, they can put it into the agreement.

Finally, putting the agreement in writing forces client and attorney to be very clear about what they expect. Oral representation agreements may be subject to multiple interpretations. But, a written representation agreement makes attorney and client aware of the terms and scope of the contract.

Types of Representation Agreements

Different kinds of cases may need different types of representation arrangements. An experienced lawyer may use each type depending on the nature of the claim.

There are also different types of fee arrangements. Generally, attorneys will work on an hourly, fixed, or contingency-fee basis. Putting the terms of payment in place is essential.

Hourly Fee

Hourly fees are the most common pay structure used by attorneys. You should ask how the attorney bills and whether they charge in 6-minute or 15-minute increments. In larger firms, where associates or paralegals will do most of the paperwork, the firm should have different billing rates for these workers. Ask if the attorney bills for things like phone calls or emails.

An hourly fee arrangement should state how often you will get billed and how much detail the bill will include. Your agreement should include a deadline for disputing certain items.

Fixed Fee

In a fixed fee or flat fee structure, an attorney charges a set amount for a specific type of case. Attorneys who specialize in one type of case often use fixed fees. For example, attorneys who handle DUIs or landlord/tenant cases frequently charge flat fees. The representation agreement should include terms that do not allow the attorney to charge more than the agreed-upon amount for this arrangement.

Fixed fee agreements should have clauses stating they may go to hourly agreements if the case goes to litigation or lasts a certain amount of time.

Contingency Fee

Contingency fee agreements are common in personal injury cases. The attorney agrees to take the case in exchange for a percentage of the award or settlement. The attorney’s fees get taken from the final settlement figure. Some areas of law, such as divorce cases, criminal matters, and most family law cases, cannot be taken on a contingency basis.

According to the ABA Rules of Professional Conduct, a contingency fee representation agreement must be in writing. The agreement must include the percentage of the award or settlement the attorney will receive. Contingency fee percentages range from 20% to 40% of the settlement. Some attorneys change their rate depending on whether the case settles or goes to trial.

Retainer Agreements

There are two ways of having a lawyer “on retainer.” In the first type, a business or person pays a regular attorney fee, so the attorney will be available when needed. This is useful for small businesses that need legal work but don’t have the staff or budget for a full-time house attorney.

When a client signs a retainer agreement, they pay a large sum up front, and the attorney deducts the costs of legal services from that amount until it is gone. If the retainer gets depleted before the case gets resolved, the attorney may bill the client for another retainer fee or continue billing at an agreed-upon hourly rate. A retainer agreement is useful when hiring a new lawyer or for legal matters that will take time to resolve, such as real estate or probate.

What To Include in Your Representation Agreement

Your representation agreement should include the attorney’s fees, court fees, and how and when you will pay.

Costs and Fees

Your representation agreement should also include clauses covering certain costs and fees associated with your case.

Typical costs and fees associated with a case may include:

• Filing fees
• Legal document copying and postage
• Expert witness fees
• Travel expenses
• Arbitration and mediation fees (if ordered by the court)
• Court costs (such as court reporters)

Litigation costs are high, and these fees must come from somewhere. Your representation agreement should specify who pays. If you must pay for all filing fees, that should be in the agreement. Attorneys working under a contingency fee basis will often cover all these costs and fees up front and deduct them from the eventual award.

Other Terms

While fee arrangements and terms dealing with money are the primary reason for having a representation agreement, there are other terms your contract should have.

These terms include:

• The extent of the representation: If the representation ends with a verdict or settlement, the agreement should say that. Most attorneys require a new fee agreement to appeal a verdict.
• Ending the attorney-client relationship: The representation agreement should include terminating the contract. Depending on the nature of the legal proceedings, state law may limit this. For instance, criminal defense representation can’t be withdrawn once the trial is underway unless the judge allows it.
• Client files: The contract should specify how and at what cost the client can get a complete copy of their client file held by the attorney.
• Who is working: If paralegals handle legal research, the agreement should state this. If the attorney needs another lawyer as co-counsel during litigation, the agreement should include this as a possibility.
• Powers of attorney: The client always has the final say over anything in their case. The attorney can only provide legal advice to the best of their ability. If the client wishes to give the attorney more authority to act on their behalf, the agreement must state this. Again, there are state laws that may limit this representation.

Violation of the Agreement and Legal Malpractice

Sometimes despite all of your efforts researching and interviewing an attorney, you end up with an attorney who you feel failed you. One action you can take in this situation is to start a legal malpractice lawsuit. The most common types of legal malpractice occur because of negligence, breach of contract, or breach of fiduciary duty.

It’s important to note that it’s often difficult to win a malpractice lawsuit, mainly because a client must establish several factors in order to prevail. One of the hardest factors the client will have to show is that a competent attorney would have prevailed in the underlying case.

Often, it’s better to discuss the problem with your attorney when it arises. If you can’t come to a solution, you can always fire the attorney. The attorney is required to provide you with your file or send your file to your new attorney upon request.

Talk About Terms With Your Attorney

Finding the right lawyer is difficult. Haggling over contract terms is worse. Attorneys know how to write agreements, so you may be at a disadvantage.

The state bar association expects attorneys to deal honestly with prospective clients during these negotiations. Negotiating in bad faith may be grounds for a legal malpractice suit or disciplinary action by the state bar.

You don’t need to discuss the fee agreement at the initial consultation, but you should leave with a good idea whether you can work with this attorney. FindLaw’s lawyer referral service can help you locate an attorney near you who can help with whatever legal help you need.