Lawyer trying to raise fee at last minute

S

smc635

New Member
Jurisdiction
Florida
Hey Everyone,

I am trying to help a friend here....really. So a friend had a slip and fall resulting in an horrific leg break and two more surgeries not related to that. It was the result of a building code violation. The attorney has had the case for over a year and it is nearing the mediation phase. Since almost all medical bills have been paid to date, it seems like everyone thinks she will prevail. Last Thursday, the lawyer's wife called my friend into her office and asked her to change the retainer agreement raising his fee to 40%. i guess the implied threat is he will drop the case. My friend did not sign it. Should she just ignore this request for now, tell them no? Any advice would be appreciated.
 
No, she shouldn't ignore it.

Was there a written fee agreement when she first hired him.

If there was, she needs to read it carefully. Lawyers generally get 1/3 of a settlement and 40% to go to trial. Mediation may be the equivalent of a trial and 40% would be legit.

It all depends on what the agreement said when it was written.

Feel free to upload a copy here.

If there was no written agreement then it's a he said - she said situation.

She needs to talk to the lawyer and try to work it out.
 
adjusterjack said:
No, she shouldn't ignore it.

Was there a written fee agreement when she first hired him.

If there was, she needs to read it carefully. Lawyers generally get 1/3 of a settlement and 40% to go to trial.
Click to expand...

Perhaps there are some areas where that arrangement would be typical, but where I have practiced, and the firm I'm associated with now, the typical personal injury fee agreement is ⅓ of the money obtained for the client up to AND including the trial. The fee agreement also specifically states that the contingent fee goes up if the case has to go to one or more appellate courts.

A mediation is not the equivalent of a trial. The mediator does not decide the case. The job of the mediator is try to get the parties to reach a voluntary agreement. In other words, it's very much a part of the settlement process.

If the case goes to arbitration instead of a court, however, that would count as a trial since in an arbitration the arbiter acts as the judge, holds a proceeding that is much like a trial, and decides the case which is as binding on the parties as a court judgment would be.

Where I've practiced contingent fee agreements are the one class of cases in which the rules of professional conduct require that the fee agreement be in writing. Even if it's not required, I've never seen a good attorney, regardless of the type of work to be done, not use a written fee agreement. That written agreement helps protect the attorney and client both from having different memories of what the exact deal was, and for the lawyer can help prevent problems should the client file a dispute with the state agency (often the state supreme court) that is responsible for disciplining lawyers.

Unless the attorney's wife is also part of the law firm, the attorney shoud not have her contacting clients on his behalf. A request for the OP to enter into a new agreement for 40% to go to trial tells me that the original agreement did not contain that provision and as the attorney is the one who drafts the fee agreement, any mistake on that falls on the attorney. The attorney ought to follow through with the agreement he made and learn from that what to do to ensure the fee structure he wants is specified in the fee agreement signed at the start of the representation. Absent some unusual fact that hasn't been mentioned, the attorney is taking a risk in pressuring a client to sign a new agreement in the middle of the representation with any hint that the attorney will drop the client if the client doesn't agree to it. Dropping the client for that reason would be a breach of contract, and might also put the attorney at risk of having action taken against by the attorney regulation office. Just from what was said here, this lawyer does not sound like one I would ever want to hire. This kind of stuff is an indicator of an attorney who either doesn't know what he's doing or doesn't care that he's trying to screw over his own clients.
 
Tax Counsel said:
Just from what was said here, this lawyer does not sound like one I would ever want to hire. This kind of stuff is an indicator of an attorney who either doesn't know what he's doing or doesn't care that he's trying to screw over his own clients.
Click to expand...

I'll offer you an inside story.

I was approached by a person injured in a 18 wheeler versus a small foreign import rear end collision.

I rarely do personal injury cases, as I advised the unknown to me, referral.

Weeks go by, becoming months, eventually two years in January. The attorneys went back and forth, eventually agreeing to a settlement proposed by the trucking company's insurance company attorneys.

Trucking company offered the injured party $100,000,000 to settle. The client was to receive $57,000,000.

The injured party's lawyers would pocket $43,000,000.

Not a standard split in my view, perhaps a tad greedy.

I'd be interested in your thoughts, should you choose to comment.
 
Zigner said:
I think you may have regretted your choice ;)
Click to expand...

No way, I wouldn't even attempt to try a personal injury case of that magnitude.

The firm in question employs over 300 trial attorneys, operating out of Texas' four largest cities.

They're dadgum good at what they do, especially 18 wheeler versus automobile collisions.

goodenuff.gif
 
zddoodah said:
You guess? Is what you really mean that this is how your friend interpreted the request?

When exactly did this injury occur? Has a lawsuit been filed? The attorney in question threatened to go to the Judge today and "drop the case".

This is not for anyone here to say. It's entirely up to your friend.
Click to expand...





Tax Counsel said:
Perhaps there are some areas where that arrangement would be typical, but where I have practiced, and the firm I'm associated with now, the typical personal injury fee agreement is ⅓ of the money obtained for the client up to AND including the trial. The fee agreement also specifically states that the contingent fee goes up if the case has to go to one or more appellate courts.

A mediation is not the equivalent of a trial. The mediator does not decide the case. The job of the mediator is try to get the parties to reach a voluntary agreement. In other words, it's very much a part of the settlement process.

If the case goes to arbitration instead of a court, however, that would count as a trial since in an arbitration the arbiter acts as the judge, holds a proceeding that is much like a trial, and decides the case which is as binding on the parties as a court judgment would be.

Where I've practiced contingent fee agreements are the one class of cases in which the rules of professional conduct require that the fee agreement be in writing. Even if it's not required, I've never seen a good attorney, regardless of the type of work to be done, not use a written fee agreement. That written agreement helps protect the attorney and client both from having different memories of what the exact deal was, and for the lawyer can help prevent problems should the client file a dispute with the state agency (often the state supreme court) that is responsible for disciplining lawyers.

Unless the attorney's wife is also part of the law firm, the attorney shoud not have her contacting clients on his behalf. A request for the OP to enter into a new agreement for 40% to go to trial tells me that the original agreement did not contain that provision and as the attorney is the one who drafts the fee agreement, any mistake on that falls on the attorney. The attorney ought to follow through with the agreement he made and learn from that what to do to ensure the fee structure he wants is specified in the fee agreement signed at the start of the representation. Absent some unusual fact that hasn't been mentioned, the attorney is taking a risk in pressuring a client to sign a new agreement in the middle of the representation with any hint that the attorney will drop the client if the client doesn't agree to it. Dropping the client for that reason would be a breach of contract, and might also put the attorney at risk of having action taken against by the attorney regulation office. Just from what was said here, this lawyer does not sound like one I would ever want to hire. This kind of stuff is an indicator of an attorney who either doesn't know what he's doing or doesn't care that he's trying to screw over his own clients.
Click to expand...





Yes, my friend has a fee agreement signed by both in writing but I have not seen it yet. She did say the original agreement was for 33%. My friend is from another country and the attorney assumed she is naive. She is but not completely. The attorney was very aggressive in his attempt to get her to sign it today, threatening to drop the case. No, I would not want this attorney either after he tried this.
 
I think it depends upon the law firm and the situation, I have seen product liability attorneys take as much as 60-70 percent of the settlement proceeds. It all depends on how much money they have to outlay for experts and work product. 40 percent if it has to go to trial is not bad; however, in most cases you will get a settlement for liability limits unless you are talking 1 million plus in limits then they may push it to trial. Remember you the plaintiff will have to pay for a portion or all of the mediation arbitration even if it settles or not so that will come out of your pot of money.
 
Redemptionman said:
It all depends on how much money they have to outlay for experts and work product.
Click to expand...

My understanding of a contingency agreement for representation is that the attorney's fee is paid by contingency. All expenses such as experts, court reporters, depositions, filing fees, etc., are paid by the client. It's something that personal injury attorneys don't say in their advertising. They only say," You don't pay our fee if we don't win."
 
welkin said:
My understanding of a contingency agreement for representation is that the attorney's fee is paid by contingency. All expenses such as experts, court reporters, depositions, filing fees, etc., are paid by the client. It's something that personal injury attorneys don't say in their advertising. They only say," You don't pay our fee if we don't win."
Click to expand...

Uh yeah, the attorney that is using the experts add their fees to their bills and usually do it all at once. So, there could be some margins going on there I assume.
 
Redemptionman said:
Uh yeah, the attorney that is using the experts add their fees to their bills and usually do it all at once. So, there could be some margins going on there I assume.
Click to expand...

Each lawyer's billing practices are a little different. But one thing is consistent among good attorneys: they don't pad their costs to extract more money from the client. A lawyer caught doing that is likely looking at at least a few years suspended from the practice of law and a public record of that would be available to the public. That would hurt the attorney more than whatever he or she might gain by padding the bills.

I dislike the way some PI attorneys advertise their fees, implying that the client won't pay anything if the client loses. Potenital clients don't understand that a statement like "you pay no fees if we lose the case" means only that the attorney doesn't get anything. The word fee generally refers to what the lawyer gets for his/her time. What the clients pay for other things, like expert witnesses, are generally called costs. Those ads never mention anything about the costs. While the ads are technically true, I think they are nevertheless misleading to unsophisticated clients. My firm doesn't advertise for PI clients. The firm has never had the need for that to bring in clients. Our fee agreement spells out very clearly what the client must pay, and we don't rush the potential clients to sign it. They get all the time they want to read it, ask questions, and make sure they understand it. As a result, we don't get unhappy clients complaining about what they had to pay like the clients of some of those guys who plaster their faces on billboards and the sides of buses. (My clients come in already expecting to pay both my fee and the costs, their main concern is how much it will be. Tax cases (other than refund cases) can't be taken on contingency fee, unlike PI cases.)

Those clients of the big advertisers get lead on by those attorneys to think it's all free. If the case loses, the client of those big advertisers are rightfully upset that no effort was made to explain to them exactly how the fee agreement works.
 
Tax Counsel said:
Each lawyer's billing practices are a little different. But one thing is consistent among good attorneys: they don't pad their costs to extract more money from the client. A lawyer caught doing that is likely looking at at least a few years suspended from the practice of law and a public record of that would be available to the public. That would hurt the attorney more than whatever he or she might gain by padding the bills.

I dislike the way some PI attorneys advertise their fees, implying that the client won't pay anything if the client loses. Potenital clients don't understand that a statement like "you pay no fees if we lose the case" means only that the attorney doesn't get anything. The word fee generally refers to what the lawyer gets for his/her time. What the clients pay for other things, like expert witnesses, are generally called costs. Those ads never mention anything about the costs. While the ads are technically true, I think they are nevertheless misleading to unsophisticated clients. My firm doesn't advertise for PI clients. The firm has never had the need for that to bring in clients. Our fee agreement spells out very clearly what the client must pay, and we don't rush the potential clients to sign it. They get all the time they want to read it, ask questions, and make sure they understand it. As a result, we don't get unhappy clients complaining about what they had to pay like the clients of some of those guys who plaster their faces on billboards and the sides of buses. (My clients come in already expecting to pay both my fee and the costs, their main concern is how much it will be. Tax cases (other than refund cases) can't be taken on contingency fee, unlike PI cases.)

Those clients of the big advertisers get lead on by those attorneys to think it's all free. If the case loses, the client of those big advertisers are rightfully upset that no effort was made to explain to them exactly how the fee agreement works.
Click to expand...

Yeah well it doesn't always work that way, the firms in my area that advertise PI would not be the ones who I would want to go with. The fees can be anything associated with prosecuting the case. I have seen $700 dollar seminar fees and $400 dinners billed to clients. So, yes it does happen.
 
Redemptionman said:
Yeah well it doesn't always work that way, the firms in my area that advertise PI would not be the ones who I would want to go with.
Click to expand...

I wouldn't go with any of those attorneys who advertise on TV, radio, buses and billboards in my area either.

Redemptionman said:
The fees can be anything associated with prosecuting the case. I have seen $700 dollar seminar fees and $400 dinners billed to clients. So, yes it does happen.
Click to expand...

Well, I think you mean the costs can be anything associated with litigating the case. That's not quite true. Some costs are excessive and clients need to spend the time reviewing their bills and challenging fees that strike them as too high. The examples you gave are the kind of costs that clients shouldn't just accept without demanding to know why that expense was truly necessary. If the client doesn't do that, the client is just asking for it to happen again. Insurance companies and large corporations routinely examine the legal bills they get, sometimes extremely closely. Other clients should not be reluctant to do that too.
 
Tax Counsel said:
I wouldn't go with any of those attorneys who advertise on TV, radio, buses and billboards in my area either.

Well, I think you mean the costs can be anything associated with litigating the case. That's not quite true. Some costs are excessive and clients need to spend the time reviewing their bills and challenging fees that strike them as too high. The examples you gave are the kind of costs that clients shouldn't just accept without demanding to know why that expense was truly necessary. If the client doesn't do that, the client is just asking for it to happen again. Insurance companies and large corporations routinely examine the legal bills they get, sometimes extremely closely. Other clients should not be reluctant to do that too.
Click to expand...

LOL, sure so you are going to tell a 700 dollar an hour high profile super lawyer that their fees are high and I want to fight them. Yeah good luck with that, you might lose it all at that point. I hear what you are saying but in application it wouldn't work that way.
 
Redemptionman said:
LOL, sure so you are going to tell a 700 dollar an hour high profile super lawyer that their fees are high and I want to fight them. Yeah good luck with that, you might lose it all at that point. I hear what you are saying but in application it wouldn't work that way.
Click to expand...

It's not the fee itself that I would object to. The fee is spelled out in the fee agreement, and as long as the client reads it he or she knows they are signing up for a $700/hour lawyer. If a client chooses to do that, that's on the client, not an ethical lapse of the lawyer. What I object to (and what can get an attorney in trouble with the Office of Attorney Regulation (OAR) in my state) is padding the the bill adding either hours that were never worked, costs that were never incurred, or work that any reasonable lawyer would know is simply not needed in the kind of case the attorney is doing. In my state, clients may first challenge the bills they get from their attorney for this kind of stuff with the ORC in a free proceeding in which the lawyer is required to participate and the lawyer is required to accept the OAR's determination. The client, on the other hand, may still go to court if the OAR's decision doesn't satisfy them. The OAR is known to be hard on lawyers that they believe engaged in unethical behavior like padding bills and will strip down what the client owes considerably in those situations. The OAR has both attorney and non attorney members so that results are not unduly stacked against either attorney or client.
 

Share this page

Get a free case review from a lawyer
Back
Top