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May 01, 2020 From the Editor in Chief

From the Editor in Chief

Kathleen A. Hogan

No matter how much one might profess to love the law, and no matter how much intellectual simulation or personal satisfaction there might be in practicing law, at some point most of us need to make a living. As well, even the most dedicated staff members and the most understanding landlords are not going to house and support a law practice for free. When it comes to getting paid for our work, family law practitioners may be in a more difficult position than our colleagues who represent corporations, insurance companies, or other “faceless” entities. Our clients are individuals whose messy finances we may be probing. They may be the people who just heard the bad news that they will have to cut personal spending, make lifestyle adjustments, or part with a substantial chunk of a retirement account.

I hope each of us enjoys the occasional victory that results in a client who is both happy and eager to pay their lawyer. However, the norm for most of us is that we are going to have to establish procedures and take routine steps that maximize our ability to get paid for our work. We have prepared this issue on attorney fees as a guide to effective and ethical steps for establishing and collecting our fees.

As a foundation to professional representation, Carl Gilmore discusses how the ubiquitous retainer agreement is crucial to creating and fostering a successful attorney-client relationship, necessary for successful case management, and important for protecting both parties. In his “Retainer Agreements” article, Gilmore explains that a carefully crafted retainer agreement ensures attorneys do not run afoul of professional rules of conduct, including the ABA Model Rules specific to family law, and that they, ultimately, get paid. He also provides a helpful full-text example of a retainer agreement that covers all these essential functions.

Often the claim for attorney fees becomes part of the client’s case. In their article, “The Presentation and Proof of Attorney Fees in Family Law Cases,” James S. Bailey and Rebecca Goldmanis address the difficulty in proving the reasonableness of attorney fees in domestic and family law cases. The challenge we face is that courts will not award fees that are objectively unreasonable, but there is no precise rule or formula for determining attorney fees. The authors recommend a multilayered approach.

In her article called “Getting Paid . . . Ethically,” Lynda C. Shely gives several insightful practice tips to avoid common ethics and risk management issues—collecting fees and avoiding complaints—that can arise from involuntary pro bono representations. She explains what every fee agreement should contain to minimize fee disputes and goes on to discuss how and why fee disputes arise, how fee disputes can become malpractice issues, and where to resolve a dispute.

In his article “Collection of Attorney Fees” David H. Friedman chronicles how collecting fees from a former client can be a minefield for the unwary practitioner due to ethical, technical, and practical issues. Further, he gives insight into third-party guarantees, the ethics surrounding contingency fees in a dissolution of marriage action and charging lien/attorney’s lien in retainer agreements, statute of limitations in fees collection, whether to settle and accept credit card payments, and common post-judgement collection actions.

Many states permit attorney fees to be awarded as a form of monetary penalty against truculent parties. In an article called “Attorney Fees as Sanctions,” Steven K. Yoda provides a survey of recent case law. He notes that recent cases shed light on what types of conduct are sanctionable and provides guidance on the types of practices to avoid.

Shayna M. Steinfeld, in her article “Attorney Fees in Bankruptcy,” provides a basic overview of the subject, including a definition of domestic support obligations, attorney fees as being in the nature of support, attorney fees owed by debtor’s own counsel, sanction-based fees in bankruptcy, and secured claims for fees in bankruptcy. She sheds light on the complex Bankruptcy Code as it relates to domestic relations’ obligations.

In many instances the person able to pay the fees is not the potential client. “Third-Party Payment of Legal Fees: Ethical and Practical Considerations” has been written by Eric M. Higgins and Sarah Gleason. They detail ethical, practical, and strategic issues that family lawyers must navigate when entering into a third-party payor arrangement. They focus on the core principles governing the third-party payment of legal fees expressed in the ABA Model Rules of Professional Conduct. Principles discussed include informed consent about the third-payor arrangement, protection of client information, and legal fee agreements and nonrepresentation letters with the third-party payor.

“Billing Clients: An Ethical and Best Practices Primer for Family Law Practitioners” has been written by Marcy Tench Stovall. She illustrates several best practices concerning communication of the basis of the fee and the scope of the representation; necessary exclusions in engagement agreements, including superlatives and express promises of certain services; fee and advance payments structures; billing issues, including accurate timekeeping, flat fees, retainer deposits, advance payments, fee-related disclaimers, deposit payments, and fee estimates.

The Board hopes that this issue will be of lasting assistance in the deriving actual payments and not just personal satisfaction from the practice of family law.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

Kathleen A. Hogan

Editor in Chief

Kathleen A. Hogan is a principal with McGuane and Hogan, P.C., in Denver, Colorado, and Editor in Chief of Family Advocate.