Michael R. Caryl P.S.

Attorney’s Fees Issues – Our Sole Focus (206) 378-4125

Frequently Asked Questions

Does the Bar even regulate lawyers, and to what ethical standards are lawyers held?

The Bar does in fact have a regulatory process, and lawyers are disciplined for infractions of the Rules. The ethics rules for lawyers in Washington are called the Rules of Professional Conduct. These rules are adopted by our state Supreme Court and published with all other Washington Court rules. They were substantially amended in September 2006 and In November 2008. The RPCs are based on a Model set of rules adopted by the American Bar Association. Washington’s current RPCs are substantially similar to the ABA Model Rules but are by no means identical.

Depending on the seriousness and number of charges, and prior disciplinary record, violations of the RPCs can subject a Washington attorney to disciplinary sanctions ranging from an admonishment to disbarment. The Bar does not referee or determine fee disputes between lawyers and clients. Our office regularly shepherds attorneys and non-attorney clients through these rules and proceedings.

How do lawyers generally charge for legal services?

There are a number of fee arrangements typically used by lawyers to compensate them, including:

Must there be an attorney/client fee agreement?

Yes, but all fee agreements need not be in writing. Only contingency fee agreements and certain flat fee agreements must be in writing. Other fee agreements may be oral per RPC 1.5.

What must a lawyer’s fee agreement consist of?

In a contingency fee arrangement, the agreement must be in writing and what must go into the writing is specified in RPC 1.5(c). The amendments to the RPCs adopted in 2008, RPC 1.5(f) requires that true retainer agreements (providing for the lawyer’s availability only) and flat fee arrangements must be in writing. RPC 1.5(b) encourages that all other types of fee arrangements be in writing, but does not require them. I would not be surprised if written agreements are not required in all legal engagements eventually. At present, however, non-contingency, and non-retainer/ flat fee agreements may be oral, although I strongly advise against them, as being contrary to the best interests of both lawyer and client.

How does a client go about identifying and hiring a lawyer?

Unsophisticated or panicked clients look in the yellow pages, refer to print advertising, go to on-line lawyer directories, or get referrals from medical care providers (such as in personal injury claims). All of these methods of identifying lawyers are unwise, as one does not really learn enough to make an informed decision from any of those. See The Lay Client’s Guide to Retaining a Lawyer, for suggested guidelines in the identification of the right lawyer and what steps to take before hiring him or her.

Are lawyer’s fees regulated at all?

Yes – and no. Neither the Bar nor the Legislature regulates specific hourly rates, the amount of flat fees or the maximum contingency fee percentage that a lawyer can charge. These are a matter of contract between the lawyer and client, subject to the overriding rule that a lawyer may not charge an unreasonable fee. Nonetheless, a client may challenge the reasonableness of fees charged in any case, and in certain cases such as tort claims or medical malpractice claims, the Court in which the case has been brought may be called upon to determine the reasonableness of attorney’s fees. In any fee litigation in which the attorney’s fees are challenged as unreasonable, the Court or arbitrator must determine the reasonableness of such fees.

When I have identified a highly recommended lawyer for my case who seems well qualified, what next?

Read and follow steps 4-10 of The Lay Client’s Guide to Retaining a Lawyer, elsewhere in this site.

What if I meet with a well-qualified and experienced lawyer, and I just do not have a good feeling for him or her?

Thank the lawyer for her time, pay for the consult if it was not advertised as free, and look again. Your gut feeling will be correct in the great majority of the time and there are many qualified lawyers to take your case.

What if I like the lawyer and believe she would be an excellent choice for my case but I don’t agree with the fee arrangements. What can I do?

Fee arrangements between a lawyer and client are sort of arms length’s bargaining. Ethical rules limit what a lawyer can do in fee arrangements, but a client can negotiate any arrangement the lawyer will agree to. Some lawyers will negotiate on hourly rates, contingency fee percentages, the size of retainers, the amount of a flat fee and even payment terms. You are free to seek to negotiate one or more of these terms. “There’s no harm in asking!” However, keep in mind if you are trying to drive a hard bargain with your soon-to be lawyer, that in the end, you will probably get what you pay for. If your fee arrangement is unattractive to the lawyer, he might not be as eager to work on your case as he is with others with better fee arrangements.

What is typical of the fee arrangement discussion between lawyer and client in the initial interview?

There is no such thing as “typical.” Many lawyers hate to discuss fees with potential client so some don’t even mention them. Others glide over them quickly and hit the high points only. Some lawyers merely send the fee agreement home to read and others tell you to read it in the reception area and sign it before you leave.

Better lawyers (or at least the ones with better office practices) will discuss fee arrangements at length, answer your questions, and explain complicated areas. An even better practice though not terribly common is to go over the written fee agreement paragraph by paragraph, explaining each in detail and soliciting questions. The better practitioners will still send the fee agreement home to be read, signed and returned. Some lawyers will also give you a written statement of billing practices.

What if the lawyer insists on an oral agreement?

Stand your ground and insist on one in writing. Oral fee agreements later invite disagreements over the terms and conditions.

What if there is language in the fee agreement that limits my rights, such as a paragraph that says I only have 7 days to review a billing or it is otherwise binding if I do not object.

Such a provision is probably not enforceable, since RPC 1.5(a) forbids a lawyer from charging an unreasonable fee, but you should ask the lawyer to strike provisions you do not agree with.

What if after I retain my lawyer and she begins work, I want to modify the agreement? What can I do?

Ask the lawyer to renegotiate. He or she can say no, or agree to changes. If the lawyer refuses, you can terminate the relationship, or live with what you don’t like.

What if after I retain my lawyer and she begins work, my lawyer wants to modify the agreement? What can I do?

This is where the law really favors the client, and the governing rule is RPC 1.8(a). As a general rule, a lawyer may not modify a fee agreement with a client, once the attorney-client relationship begins, without meeting the requirements of RPC 1.8(a). They include:

Failure to meet these conditions would breach the lawyer’s fiduciary duty to the client, and would void the modification, and potentially subject the lawyer to sanctions.

What is “independent counsel?”

Independent counsel is another lawyer of your own choosing who would independently advise you of the meaning and effect of the proposed changes to the fee agreement and advise you on whether to go along with it or not. This lawyer is at your own expense. Getting independent counsel is not required, but if the proposed modification could involve a substantial increase in fees, you cannot afford not to have it reviewed.

What if I just don’t want to change the fee agreement as requested by my lawyer? What can I do?

Simply refuse. If the original fee agreement is fair to both sides and the lawyer is just seeking a bigger fee, he or she will probably abide by the initial agreement. If the lawyer is insistent and you are not in agreement to the modification, the lawyer can always withdraw as your counsel. If he or she does so in a contingency fee arrangement, the lawyer gives up any entitlement to be paid for legal services.

What if I have a question or an objection to a monthly billing?

Contact the lawyer immediately, describe the concern or objection, and if your inquiry does not result in an acceptable accommodation, put your question or objection in writing. It is not advisable to pay for services where you have an objection. Good lawyers will not quibble with clients over small amounts in bills. All lawyers have an obligation under the RPCs to respond to client questions about billings and matters involving costs.

What if I am not able to pay the lawyer’s bill in full? Does the lawyer have the right to charge interest?

Yes – lawyers are no different than other professionals. When they extend credit involuntarily, they are entitled to be compensated for the time value of their money. The fee agreement can provide for the payment of interest on past due balances. Even if it does not, Washington has a statute (RCW 19.52.010) that imputes interest at the rate of 12% per annum simple interest. Lawyers may not charge compound interest or interest in excess of 12% per annum.

Are there rules as to what a lawyer may not charge for on an hourly case?

Yes – but this can become a very complicated question, and the rules are not neatly laid out in a single RPC rule. However, within the rule that all fees charged must be reasonable, courts have determined that a lawyer may not charge as follows:

What if my relationship with my hourly lawyer is not working out? May I terminate that lawyer and what are the consequences?

You can terminate your lawyer at any time for any reason, like you would rather have a female lawyer, or for no reason. A lawyer cannot sue for breach of contract because he or she was terminated. If you terminate a lawyer, you owe that lawyer for his or her reasonable attorney’s fees and costs that you are billed for.

What if my relationship with my contingency lawyer is not working out? May I terminate that lawyer and what are the consequences?

Again, you can terminate your lawyer at any time for any reason, for no reason, or even an improper reason. A contingency fee lawyer cannot sue for breach of contract because he or she was terminated. If you terminate this lawyer, you owe that lawyer for his or her costs advanced and if the lawyer has not substantially performed his contingency (usually meaning having obtained a settlement that you have authorized), the terminated lawyer is entitled to receive the reasonable value of the work done up to termination, on what is known as a quantum meruit basis. In Washington, this usually means a reasonable hourly rate multiplied by the reasonable number of productive hours put into the case before termination. The lawyer has the burden of proving this.

What if the lawyer has substantially performed? Can I fire the lawyer and defeat the contingency fee?

No – once the lawyer has substantially performed, then he or she has earned the contingency fee.

In that case, is that the end of it?

No – because even if a contingency fee is deemed earned because of substantial performance, you as the client can still challenge the fee as unreasonably high. Again, any fee must be reasonable in dollar amount. A client in a tort or medical malpractice case can challenge the amount of the fee in court by filing a petition with the judge, and the judge must determine if the earned fee is reasonable. A court can do this same kind of weighing of reasonableness in an hourly or flat fee case that is available in contingency fee tort or malpractice cases.

If it turns out that I have a fee dispute with my lawyer, where would that dispute ordinarily be resolved.

It depends on a number of factors. The fee agreement may provide for arbitration of any fee dispute. The arbitration clause may or may not be enforceable, depending on circumstances too complicated to discuss here. You should seek counsel on whether arbitration is a good idea for your dispute and if not, whether there are grounds to challenge it. If the case is a tort or legal malpractice case, a petition to the court in which the underlying case is filed may be made for a determination of reasonableness. These are relatively rare but the author has tried several of these. The lawyer can sue you for fees in court, or you as the client can sue the lawyer for a fee reasonableness determination. Lastly, if the lawyer has filed an attorney’s lien in your case to secure her unpaid fees, the lawyer can ask the court to foreclose the lien and as part of that process, the court must determine the reasonableness of fees charged or to be charged.

What is an attorney’s lien?

An attorney’s lien is a means of securing the lawyer’s entitlement to compensation for the work done on the case where the lawyer is claiming fees. This process is governed by a very poorly worded archaic state statute in Title 60 of the Revised Code of Washington. The attorney’s lien is too complicated to discuss herein but it is discussed in several article and CLE materials elsewhere on this website.

THE PURPOSE OF THIS FREQUENTLY ASKED QUESTIONS SECTION IS TO EDUCATE AND INFORM RELATING TO THE IDENTIFICATION OF COMPETENT LAWYERS, INTERVIEWING AND RETAINING COMPETENT COUNSEL, ADDRESSING FEE AGREEMENTS AND BILLINGS, AND DISCUSSION GENERALLY OF THE SUBJECT OF REASONABLE FEES. THE CONTENTS OF THIS SECTION SHOULD NOT BE CONSIDERED AS LEGAL ADVICE OR AS CREATING AN ATTORNEY-CLIENT RELATIONSHIP, BUT MERELY GENERAL INFORMATION AND COMMON SENSE IN DEALING WITH LAWYERS.

“Michael – I am very glad that we selected you as our mediator in this very difficult case. … You stuck with the process all day until we finally reached agreement …. We would never have reached an agreement without you.”

– Name withheld - President, Puget Sound region biotech company, 2013