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May 01, 2020 Art: Law & Practice

Flattening the Fee

Amanda Corsaro

Utilizing assisted reproductive technology (ART) for family building purposes is a financially burdensome process for intended parents. Whether they are using in vitro fertilization (IVF), gamete donation, or a gestational carrier, the intended parents face many different costs and expenses. These various costs coupled with the uncertainties in the process can add anxiety to the intended parents. One way we can assist with this anxiety is to charge a flat fee for the legal services provided during the surrogacy or ART process. Using fixed fees can also be beneficial to the attorneys as well.

Should you decide to use a flat fee it will be important to have a well-drafted, detailed engagement letter between you and your client. The engagement letter should explicitly state what is included in the flat fee representation and what is an additional charge. As we know in this industry, our clients may need assistance beyond getting the contract drafted or their parentage court order. Many need help securing birth certificates, passports, health care proxies, and passports. A proper engagement letter will detail how these types of additional tasks will be billed. Attorneys can always tailor flat fees to each clients’ wants and needs, especially if a client has higher expectations. Having a specific, detailed engagement letter will minimize the likelihood of misunderstandings later.

It is also important that the flat fee is priced properly. ABA Model Rule 1.5 requires that a “lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount of expenses.” In the ART field, attorneys have experience and are aware of the time involved in particular tasks and are in a good position to set a flat fee that is reasonable and will be upheld by the court. A properly priced fee is beneficial to all the parties involved. For clients, it provides them with the certainty that they have paid all the costs and expenses for the work to be done. For attorneys, it assures them they will be paid in full prior to beginning their work and won’t have to worry about billing for every single minute, e-mail, and phone call they make over the course of the relationship. They also won’t have to worry about chasing down payments throughout their relationship. Clients may have a more positive perception of their attorneys under this model, as they may be less likely to think an attorney is taking longer than necessary to complete a task for billing purposes. Further, attorneys will not be put in a position where they are forced to choose between completing a task to benefit a client versus delaying while awaiting payment.

The flat fee relationship also benefits the parties in that they will have a higher comfort level working with their attorneys. They have already paid for the services in full and thus are more likely to divulge all their questions, concerns, and comments when discussing the contracts or the parentage process. These proceedings involve such intimate, complex, and significant legal impact that it is necessary for all the parties to have the best representation and feel completely comfortable working with their attorneys. The parties should never feel the need to hold back, avoid asking clarifying questions, or speed through the process to keep costs down. All the parties involved are better off using a flat fee for the legal services.

In the ART process, we as attorneys should be striving to give our clients certainty in the outcomes of their cases as well as the associated costs. We also should aim to reduce anxiety and stress when possible. Using flat fee engagements is one easy way to assist in all these goals.

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Amanda Corsaro is an attorney with Circle Surrogacy in Boston. She assists clients in drafting and negotiating surrogate and egg donor agreements, addresses insurance issues and appeals, and assists intended parents with establishing parental rights through adoptions.