RULES OF ENGAGEMENT: APPLYING THE DISCIPLINARY RULES TO YOUR PROBATE AND ESTATE PLANNING PRACTICE DON T COME TO MY OFFICE WITH SUING ME ON YOUR MIND

Transcription

1 RULES OF ENGAGEMENT: APPLYING THE DISCIPLINARY RULES TO YOUR PROBATE AND ESTATE PLANNING PRACTICE DON T COME TO MY OFFICE WITH SUING ME ON YOUR MIND ETHICAL ENGAGEMENT LETTERS Written and Presented by: R. HAL MOORMAN Moorman, Tate, Urquhart, Haley, Upchurch & Yates, L.L.P. 207 East Main Street P.O. Box 1808 Brenham, Texas Telephone: Fax: hmoorman@moormantate.com Presented by MARK D. WHITE, Amarillo Sprouse Shrader Smith State Bar of Texas 35 th ANNUAL ESTATE PLANNING AND PROBATE COURSE June 8-10, 2011 Fort Worth CHAPTER 27

2 TABLE OF CONTENTS I. INTRODUCTION AND WARNING II. FEE CONTRACTS A. The Attorney-Client Relationship B. All Things Being Equal, The Lawyer Loses - Sometimes. Independent Attorney Review of Contract C. Contract Construction... 3 D. Court Review of Attorney s Fees General Rule Statutory Regulation Fraud and Breach of Fiduciary Duty An Unconscionable Fee or Breach of Fiduciary Duty No Attorneys Fees Allowed for Time Spent on Motion to Withdraw Modern Court s Review of Attorney s Fees Depositing Disputed Fee in an Escrow Account Multi Plaintiff Litigation Contingent Fee Contract as Evidence of Reasonable Fee Non-Refundable Retainer or Prepayment of a Fee... 6 E. Alternatives to Billable Hour... 7 F. Matters to Think About Before Accepting Representation Evaluate the Client Personally Reasonableness Motive Willingness to Go to Trial Ability to Accept the Rigors of Litigation Mental Capacity Financial Ability... 8 G. Understanding the Fee Agreement H. Withdrawal-The Remedy for Failure to Pay or Cooperate III. STATUTES, DISCIPLINARY RULES AND OTHER SOURCES OF REGULATION OF FEE CONTRACTS A. Contingent Fee Contracts B. General Attorney s Fees Provisions C. Arbitration, Waiver of Jury Trial Mediation, Limitation of Liability, and Indemnity D. Texas Disciplinary Rules of Professional Conduct (DR) and the RESTATEMENT Limiting The Scope of Representation Fees Limitation of Liability and Releases Conflict of Interest Withdrawal Security for Payment of Fees and Attorney s Lien The Attorney s Common Law Lien Payment for Fees Due After the Lawyer Withdraws Withdrawal Without Good Cause Adding Quantum Merit to Your Fee Contract in Contingent Fee Case Costs and Attorney s Fees as Damages Charging Interest and Using Credit Cards Charging the greater of the fee that would be charged for the same circumstance on an hourly basis or a percentage of the amount recovered for the client Notice of Complaints The Texas Lawyers Creed Third Party Guarantee of Fees Referral Fees Circular 230 Concerns i

3 IV. DRAFTING TIPS A. Examples B. General Comments Make the Contract Clear Cover Every Contingency Make it Fair Add the Texas Lawyer s Creed Complaint Notice Fee is Negotiable Independent Attorney Review Withdrawal Conflicts of Interest Sign the Agreement Arbitration Venue Client Responsibilities C. Hourly Rate Contracts Be Specific Interest Credit Cards Third Party Guarantee Attorney s Fee Recovery by the Court D. Contingent Fee Contracts Put in Writing Expenses and How to Calculate Shifting to Higher Percentages Upon Specified Events Calculation of the Recovery Mixed Contingent and Hourly Fee Don t Be Greedy Provide for Referral Fees E. Estate Planning Contracts State What You Will Do and How You Will Do It Questions About The Family Marriages Financial Information Other Questions Questionnaires Estate Planning Engagement Letter Representing Husband and Wife and Multiple Parties Joint Representation Advisory and Consent Representing Fiduciaries Clients Under Disabilities Lawyer as Intermediary Dealing with Belt V. CONCLUSION APPENDIX A FIRM Litigation & General Matters Attorney Employment Contract Retainer Agreement Release Agreement APPENDIX B FIRM Contingent Fee Contract and Power of Attorney Legal Representation Engagement Letter ii

4 APPENDIX C FIRM Engagement Letter Assignment APPENDIX D FIRM Engagement Letter APPENDIX E FIRM Legal Representation Letter APPENDIX F Joint Representation Advisory and Consent Joint Representation Advisory and Consent Unmarried Couple APPENDIX G Estate Planning Representation Letter APPENDIX H Multi-Executor Conflict Waiver APPENDIX I Litigation Agreement APPENDIX J Estate Planning Engagement Letter APPENDIX K Letter to Beneficiaries When Representing Executor APPENDIX L Purpose of the Engagement Letters and Checklists APPENDIX M Script for Receptionist Estate Planning APPENDIX N Intermediary Agreement APPENDIX O Probate Contract APPENDIX P Thomas Baird Contract APPENDIX Q Fixed Fee Estate Planning Representation Agreement (Married Couple) APPENDIX R Fixed Fee Estate Planning Representation Agreement (Single Person) APPENDIX S ARCE Waiver/Arbitration Bonus Fee Agreement APPENDIX T Guardianship Fee Agreement iii

5 APPENDIX U Engagement Letter APPENDIX V I Don t Represent You Letter APPENDIX W Legal Services Employment Contract APPENDIX X Fee Proposal APPENDIX Y Policy Statement Regarding Billing and Payment Procedures APPENDIX Z Billing Terms APPENDIX AA Invoice for Professional Services Rendered APPENDIX BB New Engagement and Assignment Acceptance Dispute with Co, LLP APPENDIX CC Expert Witness Employment Contract BIBLIOGRAPHY iv