June 01, 2016

Letters for Litigators

Daniel I. Small and Robin Page West

Simplify and expedite the effort to produce quality communications pertaining to your next litigation case with helpful, modifiable form letters.

Retention Letter—Contingency Fee—Local Counsel

 

                                                     Date

Name
Company Name
Address 1
Address 2
City, State, Zip Code

            Re:

Dear _________:

We received your packet for filing in the above-captioned matter.

Please allow this to confirm that I will serve as co-counsel in regard to the above-captioned matter. Rule 1.5 of the Maryland Rules of Professional Conduct requires any contingent fee agreement to be in writing. It also prohibits lawyers not in the same office from sharing a fee unless:

  1. the division of fee is in proportion to the services performed by each lawyer, or by written agreement with the client, each lawyer assumes joint responsibility for the representation;

  2. the client is advised of and does not object to the participation of all the lawyers involved, and;

  3. the total fee is reasonable.

A copy of the rule is attached.

Accordingly, our fee must either be based on the proportion of services provided by each of us, or we must have a written agreement with the client that we assume joint representation. So, for example, if we divide the fee 10%/90%, we must work in that proportion or we must both assume joint liability for the case by written agreement with the client. Please confirm that your written agreement with the client complies with this.

Also, please forward us a check in the amount of three hundred five dollars ($305.00) to cover the cost of the filing and private process server fees. The filing fee is $110.00 plus $20.00 to enter your appearance as counsel for each case, and the private process server fee is a total of $45.00 to serve both writs of summons on the same defendant.

                                                  Sincerely,

                                                  Law Firm

                                                  Lawyer Name

Enclosures

 

 

Declination Letter—Contingent Fee—Employment

 

                                                  Date

Via Certified Mail, Return Receipt Requested

Name
Company Name
Address 1
Address 2
City, State, Zip Code

            Re:

Dear _________:

It was a pleasure for [associate name] and me to meet with you in our office on [date] and again on [date] to discuss your potential case against the [defendant name]. Please allow this letter to confirm our discussion. Having considered all the information available to us at this time, and after my having attended the unemployment hearing with you here in [city] on [date], and having obtained and reviewed the papers [defendant] unsuccessfully attempted to introduce into evidence at that hearing, (copies of which I gave you on [date] after the hearing), we have reluctantly concluded that we cannot represent you in this matter on a contingent fee basis. From our decision, you should not conclude that you do not have a cause of action. Our decision not to represent you does not imply or express any advice about whether you do or do not have a case. It only means that, in our opinion, any likely recovery in this case would not be justified by the time and resources we would have to invest to obtain it. It is possible that another lawyer or law firm would feel differently and would be willing to undertake this matter on a contingent fee basis.

Because the law imposes certain time limits on when claims and suits may be filed, ("statutes of limitation"), your right to file a claim or suit will expire with the passage of time. These deadlines may begin to expire very soon, as you learned when you visited the EEOC here in [city] on [date] and were told of their timetable for filing a claim. Subject to a few exceptions, lawsuits for libel and slander in Maryland will usually be barred if not filed within one year. Suits for other causes of action in Maryland may have longer statutes of limitation. You should not delay in pursuing legal action if you intend to do so, because your claim or suit--no matter what it is for-- will be barred if not filed within the applicable statute of limitations for that particular cause of action.

As I promised at our last meeting, I will send you a copy of anything I receive from the Maryland Office of Unemployment Insurance so that you can take the necessary steps to protect your rights in that regard. We wish you every success in the future. Please don't hesitate to call if we can be of assistance.

                                                  Sincerely,

                                                  Law Firm

                                                  Lawyer Name

 

Reprinted with permission from Daniel I. Small & Robin Page West, Letters for Litigators: Essential Communications for Opposing Counsel, Witnesses, Clients, and Others (ABA 2004), at 37, 49. © 2004 American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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Daniel I. Small and Robin Page West

Daniel I. Small is a partner with the firm of Holland & Knight in Boston and Miami. He practices in the area of litigation, focusing on witness preparation, government and internal investigations, white-collar criminal law and complex civil litigation. He has extensive investigation, jury trial and other litigation experience. Prior to entering private practice, Mr. Small was a prosecutor for the U.S. Department of Justice, during which time he tried RICO, corruption, financial and regulatory cases. Mr. Small received various awards and commendations for his work. He also was General Counsel for a publicly traded healthcare management firm, where he oversaw in-house legal and risk management staff, outside counsel, litigation, compliance, and facility, entity and physician contracting. Mr. Small has written several books on litigation for the ABA, including Preparing Witnesses and Going To Trial, that are used in CLE programs he gives throughout the country, and was a Lecturer on Law at Harvard Law School. He is a frequent television, radio and newspaper commentator. Mr. Small has represented witnesses, plaintiffs and defendants in a wide range of internal and external investigations, administrative proceedings, and civil and criminal litigation. These have included issues relating to healthcare entities, education institutions, financial institutions and others. His clients have included former Virginia Governor Bob McDonnell and former Louisiana Governor Edwin Edwards.

Robin Page West is a principal in the Baltimore law firm of Cohan, West & Karpook, P.C. She is the author of the ABA book, Advising the Qui Tam Whistleblower: From Identifying a Case to Filing under the False Claims Act. Ms. West is also the author of "Health Care Fraud" published in the October/November 2007 issue of the American Bar Association Magazine GPSolo, "Qui Tam Litigation," Chapter 71 of Litigation Manual 3d Ed. (ABA 2007) and numerous other published articles. She has been a faculty member of the ABA's Health Care Fraud and qui tam National Insti­tutes for lawyers and has been interviewed on National Public Radio's "Morning Edition" on the subjects of qui tam litiga­tion and stopping health care fraud. She has been quoted on the subject of qui tam litigation in the ABA Jour­nal, the National Law Journal, the Washington Times, Baltimore's Daily Record, the Bureau of National Affairs' newsletter on Health Care Fraud Litigation, and other publications. She also co-chaired the qui tam subcommittee of the ABA Litiga­tion Section's Health Care Law Committee.