Adopting a Client Bill of Rights
by Phil Horne, Esq.
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All Attorneys Should Guarantee and
All Clients Should Expect the Following Rights:
ARTICLE I.
Right To Fee Information
Every Client Has the Right to Know the Fees Charged by a Prospective Attorney Before First Meeting Same. Accordingly, Every Attorney Should Make Public & Publish Its Fee Schedule.
Clients deserve to know the fees charged by prospective attorneys before meeting with them.
Many attorneys keep their fee schedule secret until AFTER the client is in the process of hiring the attorney. Often, it goes like this: Attorney agrees to meet with client to discuss case, hands client fee agreement, directs client to sign, and quickly signs agreement. Client often does not know or understand the fees incurred until case conclusion when client receives the settlement disbursement letter.
ARTICLE II.
Right to Non-Predatory Billing Practices
Every Client Has the Right to Non-Predatory Billing Practices.
Too many attorneys engage in predatory billing practices. An example of a predatory billing practice is charging clients fees and costs based on perceived naivete or lack of familiarity with litigation practices—like a bad car mechanic.
When an attorney refuses to make its fee schedule public, clients should assume the attorney engages in predatory, discriminatory billing practices.
ARTICLE III.
Right to Information About Fee Saving Alternatives
Every Client Has the Right Be Informed About Fee Saving Alternatives including Small Claims Court, Rent Board Arbitration, Labor Commissioner Process.
Often tenants or employees have claims that must be brought in court and claims that they can bring separately, representing themselves, and thereby avoiding fees and costs payments. For example, tenant claims may include return of security deposit or payment of security deposit interest and employee claims may include overtime or break payments.
Many attorneys fail to notify their tenant or employee clients of the benefits of representing themselves, separately, on such claims in Small Claims Court, the local Rent Board, or state Labor Commissioner.
ARTICLE IV.
Right to Negotiate Fees and Costs
Every Client Has the Right to Negotiate Attorney Fees and Costs—Including Contingency Fees and Costs—AND the Right to be Informed.
California state law provides that contingency fee agreements MUST BE NEGOTIABLE. If an attorney fails to apprise a prospective client that a contingency fee agreement is negotiable, the penalty is severe—THE AGREEMENT MAY NOT BE ENFORCEABLE by the attorney.
In spite of this severe penalty, many attorneys fail to notify their clients that contingency fee agreements are negotiable and almost all attorneys refuse to engage in any meaningful contingency fee negotiations with prospective clients. Many attorneys offer prospective clients a single “take it or leave it” contingency fee agreement.
ARTICLE V.
Right to Contingency Fee Agreement Alternatives
Every Client Has the Right to Consider Alternatives to Contingency Fee Agreements—Incl. Hourly and Fixed/Flat Fee.
A contingency fee agreement is often the wrong choice for a client, and clients should be provided alternatives to contingency fee agreements such as hourly fee agreements (attorney paid by the hour) and fixed/flat fee agreements (attorney paid single fee for entire job/case regardless of hours worked).
Consider an actual eviction and buyout case in San Francisco (approximate numbers): Master tenant in 15+-year rent-controlled apartment with two (2) subtenants faced winnable eviction. Tenant hired attorney and agreed to 45% contingency fee agreement, attorney worked 15 hours, case settled at court settlement conference for $70,000.00 with moveout requirement. Tenant netted just $32,000.00 after paying subtenants $4,000.00, costs of $2,500.00, and $31,500 Attorney Fees.
With an hourly fee agreement (assuming $250.00/hr), tenant would net $59,750.00 ($27,750.00 savings!). Even better, with a fixed/flat fee agreement (assuming $12,500.00 [$4,133.33 ea. occupant] fixed/flat fee), same tenant would net $59,333.33 or more ($27,333.33 savings if case still settled for $70,000.00; but client, confident knowing fees were paid through trial, would likely achieve more at settlement conference).
ARTICLE VI.
Right To Reasonable Fees
Every Client Has the Right to REASONABLE FEES.
Unreasonable fees are illegal. Still, many attorneys, and even NON-PROFIT LEGAL SERVICES FOR THE POOR charge unreasonable fees. What is an unreasonable fee? An unreasonable fee is a fee above the practices of other attorneys with similar education, skills, and experience.
Unreasonable fees are typically seen with contingency fee agreements. Often contingency fee agreements do not include an exception for cases settling early or with the attorney having performed little work and deserving a lessser fee. The above $31,500.00 for 15 hours of work, or $2,100.00/hr is an illegal, excessive fee.
Attorneys must choose either a court-awarded hourly fee or the contingency fee on the entire recovery (including court-awarded fees). Another actual case example of an unreasonable fee occurred when a San Francisco non-profit legal services provider charged its tenant client with contingency fees for work that was already fully compensated by the opposing party upon order of the court.
ARTICLE VII.
Right To Economic Hourly Billing
Client Has the Right to Economical Hourly Billing.
Clients deserve economical hourly billing—including three-minute billing for hourly fee work (lowest unit is three (3) minutes, or 0.05 hours).
Most attorneys bill in six (6) minute or greater minimums. Applying six (6) minute minimums, the minimum price for each task is at least 10% of an attorney’s hourly rate. This practice allows attorneys to double and triple bill for the same clock time.
ARTICLE VIII.
Right To Economic Cost Billing
Client Has the Right to Economic Cost Billing and To Be Free of Unlawful Cost Billing Practices.
Clients deserve attorneys committed to maintaining low case costs. This means that attorneys should use economical service providers (court reporters, messengers, mediators); use electronic filing, service, and correspondence whenever possible; keep filings, depositions, and other process limited to that which is reasonably necessary; bill only costs allowed by law; and refrain from “nickel and diming” clients for minor postage and copy/print work.
Often attorneys use “prestigious” (expensive) service providers, refuse to stipulate to electronic service, fail to use electronic correspondence, make errors in filings that require amended filings, take lengthy or unnecessary depositions, bill clients for minor postage and copy/print work, and unlawfully bill disallowed travel and parking.
Article IX.
Right to “Real Time” Copies
Client Has the Right to Read, in “Real Time,” Every Case Filing, Letter, Email, Text, Billing Statement and Invoice—Whether Created by Attorney, Staff, Court, or Legal Service Provider.
“Real Time” means at the the time the document is created and first served, filed, or otherwise transmitted to or from client’s attorney.
Many clients, at the outset of litigation, assume their attorney will provide copies of all case documents only to learn at deposition, mediation, or trial that attorney failed to provide them with copies of court documents, billing statements, correspondence, and/or evidence.
ARTICLE X.
Right to Copies of Case Documents FOR FREE
Client Has the Right to Recieve the Above-Described Copies of All Case Documents Without Charge.
Modern technology affords attorneys many ways to provide electronic copies of case documents. Attorneys should use these methods to save clients unnecessary cost billing.
Many attorneys serve clients with hard copies of letters and other case documents and do so by mail. This creates unnecessary print, copy, and postage costs and delays client receipt.
ARTICLE XI.
Right to Independently Verify Case Progress
Client Has the Right to Independently Verify Case Progress Using Attorney-Provided Electronic Case Information and Instructions.
Most courts use electronic filing and case management which allows the public to view the filings, appearances, court calendar, and payments for each filed case. Clients should check their court’s electronic filing records periodically to ensure that their attorney is performing work on the matter and has not been sanctioned by the court. An “Order to Show Cause” issued by a court against an attorney may indicate attorney malfeasance.
Clients should request and attorneys should provide electronic links to publicly available electronic filing and case management information.
ARTICLE XII.
Right to Written Confirmation of Attorney Promises
Client Has the Right to Receive Written Confirmation of Any Promises or Representations Made by Their Attorney.
Clients often receive promises and/or representations from their attorney. Attorneys tell clients attorney “wins 99% of cases,” or “settled a case just like yours for $100,000.00,” “will get you $50,000.00 easy,” etc.
ATTORNEYS ARE NOT ALLOWED TO LIE TO THEIR CLIENTS. Whenever an attorney makes a promise or representation such as that above, the client can ask the attorney to put the promise or representation in writing and, if the attorney is unwilling to do so, confirm the promise or representation with the attorney in writing.
ARTICLE XIII.
Right to Written Fee & Cost Statements
Regularly and UPON DEMAND
Client Has the Right to Receive Written Fee & Cost Statements Regularly Periodically and At Any Time Upon Demand.
Settlement negotiations can occur several different times during litigation. Clients need accurate information regarding the costs and fees in order to fully participate in such negotiations.
Too often, attorneys engage in settlement negotiations without first figuring, and then providing client with, accurate fee and cost information.
Attorneys should prepare fee and cost statements regularly throughout litigation and any time client: 1) Considers a settlement offer, 2) Engages in formal or informal settlement negotiations, and/or 3) Requests a statement.
ARTICLE XIV.
Right to Money Within 48 Hours
Client Has the Right to Receive Client's Portion of Settlement Money Within 48 Hours of Receipt by Attorney.
Often the conclusion of litigation is one of the worst periods for the client. Insurance company delay is commonplace. Many attorneys compound the delay. While most insurance company checks are “cleared” by commercial banks either immediately or by midnight on the day checks are deposited, attorneys often delay client payment for an additional 14-30 days.
The source of the delay is lack of attorney organization and technophobia—including refusing to use technology to maintain fee and cost information and failing to keep such information current.
Clients should demand and attorneys should provide client’s portion of settlement money within 48 hours of attorney receipt of settlement funds.
ARTICLE XV.
Right to Recognition, Recall, Courtesy
Client Has the Right to An Attorney That Recognizes Them; Remembers Their Name, Core Case Facts, and Documents; and Is Courteous.
Many attorneys use staff or students to perform intake, discovery, and trial preparation. Some of those attorneys do not recognize clients, remember client names, basic facts or critical documents or other evidence in client’s case.