Standards for the Provision of Civil Legal Aid

Standard 4.4 on Client and Attorneys' Fees

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Standard

A provider should establish a policy governing any fees and costs for which a client is responsible and any attorneys' fees that may be recovered from an adverse party.

Commentary

General considerations

Legal aid providers are organized for the purpose of assisting persons who are unable to afford legal representation. Nevertheless, clients may be asked to pay certain costs of representation, such as filing fees, if they are able to pay them and a waiver cannot be obtained. In addition, some providers may charge greatly reduced fees or may charge clients on a sliding fee scale to help defray the costs of representation. Some private practitioners may agree to accept referrals in certain types of cases and to charge the client a substantially reduced or nominal fee.

While such charges may help to increase the resources that are available to provide legal assistance to members of low income communities, providers should take into consideration the impact of any fees or costs on those applicants who would be denied legal assistance if they cannot afford to pay them. In addition, providers should be aware of private practitioners who regularly provide low-cost representation in certain categories of cases and determine whether it is more appropriate to refer applicants to such practitioners. In any event, clients should be fully advised at the outset of representation of any costs or fees that they will be expected to pay.

Specific considerations

Representation of clients by outside practitioners. An outside practitioner who represents a legal aid client should not charge an additional fee to a client referred by a provider beyond that agreed to by the provider and the practitioner prior to the initiation of representation. To do so could defeat the purpose of providing service to those who cannot otherwise afford an attorney. Staff practitioners who also have a private practice should not charge a fee to a client of the provider or otherwise receive any money directly or indirectly from such an individual. If a staff practitioner leaves the employment of a provider to engage in the private practice of law, the provider may permit the practitioner to continue to represent clients the individual represented while a member of the provider’s staff, but the practitioner should do so either on a pro bono basis or at a pre-established contractual rate where the fee is paid by the provider.

Fee-generating cases. Fee-generating cases are those in which a fee is likely to be available either from an award to the client, such as in plaintiffs’ tort actions, or from the opposing party, such as cases where statutory attorneys' fees are available. Providers should consider whether to expend limited provider resources on cases in which other competent counsel would be available, and should adopt policies to guide the provider in determining whether to undertake representation in particular fee-generating cases. In setting and applying such policies providers should consider a range of factors, including the following:

  • Whether private practitioners are generally available and willing to undertake representation in such cases;
  • Whether the case is one where the provider's practitioners have specialized experience and expertise;
  • Whether the case is one where private practitioners have experience and expertise;
  • Whether there are issues in the case that are of particular importance to low income communities;
  • Whether the case fits within the mission or strategic focus of the provider;
  • Whether the recovery would be so diminished by a private practitioner obtaining a fee as to significantly harm the client;
  • Whether the case would require the expenditure of significant provider resources without any substantial likelihood of recovering those expenditures in a timely manner.

Recovery of attorneys' fees. In some circumstances, a claim for attorneys’ fees may be an important strategic tool to encourage the adverse party to settle the case rather than risk the obligation to pay a significant attorneys' fee award. The amount of attorneys' fees can become a major issue in settlement negotiations, however, because there can be tension between the client's desire to settle the matter favorably to the client and the provider's interest in recovering a reasonable fee. The provider and client should agree in the retainer or engagement letter at the outset of any representation about how attorneys' fees will be treated in settlement negotiations.

At a minimum, the client should be apprised of potentially competing interests, and the provider and practitioner should consider ways to meet the client's objective without unreasonably limiting the provider's opportunity to recover a reasonable fee. The law and ethical considerations governing how this inherent conflict should be treated is evolving and the provider and practitioner should be familiar with how it is treated in their jurisdiction and seek solutions consistent with that law that meet their underlying responsibility to protect the client’s interests while preserving the reasonable capacity to recover fees.

Attorneys' fees awarded to a practitioner employed by the provider, or to a client of such a practitioner, should be remitted to the provider. The provider and a private practitioner who is representing a client as co-counsel or on referral from the provider should agree prior to the initiation of representation regarding the disposition of any attorneys' fees that may be awarded in the case. The client should be advised when representation is undertaken of the intended disposition of such fees.