It is not uncommon for the busy practitioner to forget the necessity of a written fee arrangement when engaged for a new representation.  This is especially so in instances where a client may require immediate assistance with a legal matter, for example an injunctive action, custody, or a criminal matter.  However, the Rules of Professional Conduct which govern attorney ethics requires that upon initiation of the representation of a client for the first time, the attorney must communicate, in writing, the basis or rate of the fee for the representation.  Although the rule requires that the fee information be communicated before or within a reasonable time after commencing the representation, all too often, the attorney who has taken a representation under exigent circumstances will fail to follow up on this requirement.  However, such failures do not go unnoticed by the Office of Disciplinary Counsel.  It is not uncommon in instances where there has been an allegation of, for instance a failure to communicate with a client, that disciplinary counsel will also charge a violation for failure to provide a written fee agreement or arrangement to a client prior to or even during the course of the representation.

It is also important to note that a fee arrangement will be required where the fee is contingent upon the outcome of a matter (other than a domestic relations or criminal case in which contingent fees are prohibited).  This arrangement must be in writing and set forth the method by which the fee is to be determined, including the percentage or percentages to be paid to the attorney in the event of settlement, trial or appeal, litigation and the deduction of expenses from the recovery and whether such deductions will be taken before or after the fee is calculated.  Where a contingent fee is utilized by an attorney and the matter has concluded, a written statement detailing the distribution of the funds received must be provided to the client.

A written fee agreement is required at the inception of a new representation or when the attorney will accept a contingent fee.  The written arrangement provides an excellent opportunity to set the tone and parameters of the representation.  When an attorney consistently uses a written fee arrangement and the document is sufficiently detailed, it should help avoid surprises in billing because the client will know the terms of payment and that, for example, the time spent answering telephone calls will be billed to the client.  In the case of a contingent fee, clients will understand the details of what to expect at the end of the representation including how funds will be distributed.  Although required by the Rules of Professional Conduct, the fee agreement/arrangement also serves a useful tool for practitioners.

If you have a suggestion for a blog or discussion on a topic of general interest in the field of legal ethics, professional responsibility or attorney discipline please leave a comment or contact me by email.

Many attorneys assume that an attorney discipline matter resulting in disbarment is the end of the lawyer’s legal career.  However, disbarment in many cases is not a professional death sentence.  In fact, the Pennsylvania Rules of Disciplinary Enforcement anticipate and provide for a process by which a suspended or disbarred attorney may seek reinstatement to the practice of law.

An attorney who has been disbarred may not apply for reinstatement until the expiration of at least five years from the effective date of the disbarment, except under certain circumstances involving reciprocal discipline.  For the most part, attorneys who have been disbarred do not apply for reinstatement much sooner than seven to ten years after the initial order of disbarment.  However, if an attorney is able to meet their evidentiary burden in establishing their fitness to be readmitted to the practice of law, the Disciplinary Board will probably recommend and the Supreme Court will generally enter an order granting reinstatement.  In that regard, attorneys who have shown that they have been rehabilitated and demonstrated their fitness to be readmitted have been reinstated after, for example, being convicted on seven counts of theft by deception; convicted on two counts of unsworn falsification to authorities based upon false reports to the police ; and convicted of theft by deception, tampering with public records or information, securing execution of documents by deception and unsworn falsification to authorities.

Although there are many cases where the disbarred attorney is able to demonstrate their rehabilitation and fitness to reenter the practice of law, there have been occasions when the Supreme Court of Pennsylvania has concluded that the attorney will never be readmitted to the practice of law.  In a case where an attorney engaged in a criminal conspiracy involving payments to a judge, the Pennsylvania Disciplinary Board recommended reinstatement, but the Supreme Court in a per curiam opinion concluded that the petition for reinstatement would be denied and that the petitioner would be “forever barred from the practice of law in the Commonwealth of Pennsylvania.”

It is clear that the Pennsylvania disciplinary system makes available a reinstatement process for attorneys who have been suspended or disbarred.  The successful navigation of that process, however, requires that the attorney have engaged in a concerted effort at rehabilitation demonstrating their fitness to reenter the practice of law.  Therefore, unlike many jurisdictions, the Pennsylvania Supreme Court and the Pennsylvania Disciplinary Board have taken a progressive and rehabilitative approach to attorney discipline, and it is only in extremely rare circumstances that disbarment will, in fact, be forever.

In the area of legal ethics and professional responsibility, one of the most frequent causes for complaints to the Office of Disciplinary Counsel, which can often result in attorney discipline, is the failure to communicate with clients.  Rule of Professional Conduct 1.4 governs communications with clients and is worth periodic review in order to stay up-to-date with your obligations to ensure that your clients are informed and have sufficient information to make decisions regarding their representation.  The Rules of Professional Conduct can be found here.

While client communication may seem a mundane topic which is not often the subject of ethics opinions, it is an area where the busy practitioner can, through an inadvertent lapse, generate a complaint calling into question the lawyer’s ethics.  While most practitioners may correct a minor miscue, all too often the complaint is only one of many or upon further inquiry is found to be only one of many violations.  Under these circumstances, the failure to communicate may result in discipline either standing alone or in conjunction with other violations.

Reviewing your communications procedures with your attorneys and staff to ensure prompt responses to client inquiries and contact, as well as assuring there is a program in place with regard to correspondence and e-mail, will help address your obligations under the rule and also enhance your attorney-client relationships.