By Marc Adelman
Meeting a client’s expectations on any given matter is the biggest challenge lawyers often face. Failure to meet those expectations will often leave the client wondering if you did your job, kept your promises, or if your actions met the standard of care. Setting the tone for those expectations starts at your very first interaction with the client. You should not underestimate the import of that initial interaction. Becoming familiar with the client, the facts, and articulating the potential direction and potential outcomes of the case is of primary importance. Take the time to accomplish these critical tasks. Be careful not to assure a result and be mindful of the language you include in your fee agreement. For example:
“Nothing in this agreement should be construed as a promise about the direction, duration or outcome of your matter. I cannot make such a guarantee and expressly state that I have not. Any comments made by me are expressions of opinion only and do not constitute any assurance, promise or guarantee.”
Exaggerating the monetary value of a claim, underestimating the cost of a defense, promising a favorable result, or predicting the length of time the matter will take, frequently comes back to haunt the promisor. Not only should you temper client expectations on the duration and outcome of the case, but you must also confine and/or narrow the scope of your representation, defining your duties.
Rule 1.2(c) of the ABA Model Rules of Professional Conduct permits a lawyer to “limit the scope of representation if . . . reasonable under the circumstances and the client gives informed consent.” This can consist of limiting representation to certain kinds of transactions, duties, or stages of litigation. You must effectively communicate “[t]he scope of the representation and the … fee and expenses . . . .” (Rule 1.5(b)).
While often diverging from the ABA Model Rules, the California rules similarly address the importance of limiting the scope of representation. Although Rule 3–400 prohibits a California attorney from “prospectively limiting the member’s liability to the client for the member’s professional malpractice,” it does not prohibit reasonably limiting the scope of your representation. Be specific and clearly articulate what your representation will entail. Typical language in an agreement may read:
“We propose to investigate/defend and prepare the case against all parties that may have legally been the cause of/or suffered damages. The firm will prepare and file necessary court documents on your behalf, take depositions, statements of witnesses, otherwise conduct what is known as ‘discovery,’ and appear on your behalf in court. We will also be responsible for preparing for trial or arbitration and carrying on any negotiations for settlement, which you will authorize.”
After stating what you will be doing for the client, don’t hesitate to let them know what you won’t be doing. Often times, an unanticipated cross-complaint could put an entirely different perspective on whether or not you will succeed and whether or not you will ever get paid. Are you obliged to defend a cross-complaint under your existing contingency fee agreement? If not directly addressed in your written agreement you could be bound to defend the client to the bitter end.
For example, in Nichols v. Keller, the plaintiff sought an attorney for a worker’s compensation claim, but later sued the attorney for failure to properly advise him about the possibility of third-party claims. (15 Cal. App. 4th 1672 (1993)). The court stated that a worker’s compensation attorney should be able to narrow the retention to a compensation claim if the client is made aware that there may be other remedies, which the attorney will not investigate, and that other counsel should be consulted. (Id. at 1684; Cal. Bus. & Prof. Code § 6147). Thus there are situations where you may limit the scope of your representation, but you need to explicitly communicate what are and are not your responsibilities. The following language would work in a personal injury contingency fee agreement:
“This fee is not set by law but is negotiable. This fee agreement does not cover the handling of any worker’s compensation claim, any administrative claim not required by statute, any counter or cross-complaint stemming from the facts of this case, the filing of any appeal before or after trial, the filing of any writ, restraining or protective order, and/or any representation stemming from any medical collection, subrogation or lien collection matter proceeding against you.”
The concept is simple: define your responsibilities, thoroughly discuss them with the client, have the appropriate language in your fee agreement, and clearly recite them. You will thank yourself later if you include specific and effective language about the scope of your duties in your fee agreement.
Marc Adelman (AdelmanMD@gmail.com) is a past president of the San Diego County Bar Association and an attorney at law.