Legal Summary: Handling Ethical Issues in Family Law Practice for Paralegals

A. AVOIDING CONFLICTS OF INTEREST

Conflicts of interest can pose a serious problem if not properly handled from the start of a lawyer-client relationship. A conflicts search is a necessary part of any practice. All attorneys need to have conflict of interest software that screens whether the firm has a conflict of interest. If your firm does not have conflict software, or other appropriate safety measures in place, they are playing with fire. There are several kinds of inexpensive conflict of interest software available that any lawyer can purchase and implement. The process of checking for conflicts starts during the first contact with a prospective client. This usually occurs on the phone when a prospective client contacts your firm for the first time. Your firm should have a process in place for gathering the necessary information to conduct a proper conflicts check. As part of the initial phone interview, you should only obtain as much information as appears reasonably necessary for the purpose of obtaining disqualifying information. It is important for paralegals, legal staff and all attorneys to be familiar with the systems used to collect and store information gathered over the phone by prospective clients.This generally includes gathering the person's full name, address, opposing party's name and address as well as the name of the other party's attorney of they have retained counsel. After obtaining this basic information you should run a conflicts check through your software before engaging in further consultation with the potential client. If there is a conflict of interest or another reason for non-representation, you should discuss this with the attorney you work for immediately and have the attorney inform the potential client of the conflict of interest. It is within the best practice to avoid representing clients that have a conflict of interest with your current or former clients, however, in some circumstances the conflict can be waived by the individuals with a conflict waiver.

RULE 4-1.7: Conflict of Interest: Current Clients

(a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client , a former client, or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under Rule 4-1.7(a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

Loyalty to a current client prohibits undertaking representation directly adverse to that client without that client's informed consent. Thus, absent consent, a lawyer may not act as an advocate in one matter against a person the lawyer represents in some other matter, even when the matters are wholly unrelated. The client as to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively.

In addition, the client on whose behalf the adverse representation is undertaken reasonably may fear that the lawyer will pursue that client's case less effectively out of deference to the other client; i.e., that the representation may be materially limited by the lawyer's interest in retaining the current client.

Similarly, a directly adverse conflict may arise when a lawyer is required to cross-examine a client who appears as a witness in a lawsuit involving another client, as when the testimony will be damaging to the client who is represented in the lawsuit.

On the other hand, simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does not ordinarily constitute a conflict of interest and, thus, may not require consent of the respective clients.

The analysis for current conflicts of interest is to determine who the clients are that have a conflict, determine if the conflict is able to be waived by consent, and analyze discuss with the attorney whether you can provide competent and diligent representation as required by the Rules of Professional Conduct. If there is a concern on whether or not competent and diligent work can be done in representing the client, the attorney should stop and not proceed with representation. If you and the attorney are able to provide competent and diligent representation, you can proceed by consulting with the client to discuss their options, including waiving the conflict by consent if they chose to do so. The attorney should obtain informed consent in writing. If there is more than one client with a conflict, you must obtain written consent from both of them, especially if one party's case could be materially limited by the attorney's representation of another conflicted client. Informed consent denotes the client's agreement for the course of conduct after a full and adequate explanation by the attorney. Informed consent requires that each affected client be aware of the relevant circumstances and of the material and reasonably foreseeable ways that the conflict could have adverse effects on the interests of that client. The information required depends on the nature of the conflict and the nature of the risks involved. When representation of multiple clients in a single matter is undertaken, the information must include the implications of the common representation, including possible effects on loyalty , confidentiality, and the attorney-client privilege and the advantages and risks involved.

In addition to current clients, the paralegal and lawyer still has a duty to former clients as far as conflicts of interest are concerned. Former clients can give informed consent in writing to release the lawyer of the conflict surrounding the former client's case. The rules proscribe this situation as occurring when the lawyer or their paralegals learned relevant information through representation of the former client as well as the position of the new client being materially adverse to those of the former client.

RULE 4-1.9: Duties to Former Clients

(a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

(b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:

(1) whose interests are materially adverse to that person; and

(2) about whom the lawyer had acquired information protected by Rules 4-1.6 and 4-1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:

(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known; or

(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

Matters are "substantially related" for purposes of Rule 4-1.9 if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter. For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person's spouse in seeking a dissolution of marriage or divorce. This extends to the firm, including the paralegals, who obtained information during the course of the lawyer's representation of the client.

Information that has been disclosed to the public or to other parties adverse to the former client ordinarily will not be disqualifying. Additionally, information acquired in a prior representation may have been rendered obsolete by the passage of time, a circumstance that may be relevant in determining whether two representations are substantially related.

A former client is not required to reveal the confidential information learned by the lawyer or the lawyer's legal staff in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the paralegal and lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

The Rules of Professional Conduct in Missouri are equally applicable to paralegals. Therefore, when a paralegal leaves one firm and goes to a different firm in the same field of practice, they should take measures to ensure that any client information learned through the previous employment is still protected. Some considerations for this scenario are:

First, the client previously represented by the former firm must be reasonably assured that the principle of loyalty to the client is not compromised. Second, the rule should not be so broadly cast as to preclude other persons from having reasonable choice of legal counsel. Third, the rule should not unreasonably hamper paralegals from seeking new employment and taking on new clients after having left a previous position.

It should be recognized that today paralegals work in firms and often move around between employers. While not all, some paralegals choose to limit their work to one area of the law in order to gain a focus. If the concept of imputation were applied with unqualified rigor, the result would be radical curtailment of the opportunity of paralegals to move from one office setting to another and of the opportunity of clients to change firms or lawyers they hire. Rule 4-1.9(b) operates to disqualify the paralegal only when the paralegal involved has actual knowledge of information protected by Rules 4-1.6 and 4-1.9(c). Thus, if a paralegal while with one firm acquired no knowledge or information relating to a particular client of the firm, and that paralegal later joined another firm, neither the paralegal individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the two clients conflict. See Rule 4-1.10(b) for the restrictions on a firm once a paralegal has terminated association with the firm. The same rule for informed consent of current clients is the same as would apply for this issue. As an example in, State ex rel. Diane Thompson v. Dueker, where a client met with an attorney at a law firm approximately four-years earlier for a paid, thirty-minute, initial divorce consultation, but did not retain the law firm, that law firm was not prohibited from later representing the opposing party four-years later on a motion to modify.

B. MAINTAINING CLIENT CONFIDENTIALITY

Confidentiality is an important ethical duty that all lawyers and paralegals must abide by and take seriously. The Missouri Rules of Professional Conduct require that, " a lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by Rule 4-1.6(b)." As previously mentioned, this cloak of confidentiality applies to paralegals as well as other staff members working within the firm. Notice that there are some exceptions where a lawyer or paralegal is allowed to disclose information that they reasonably believe necessary under Rule 4-1.6(b). However, these exceptions are that the lawyer or paralegal "may" disclose, not that they have to. Therefore, these disclosures are not necessary even if you think that it is reasonably necessary to disclose to prevent death or other bodily harm. Additionally, remember that you also have an ethical duty to maintain the confidence of things you learn about prospective clients. As an example, all information you learn during an initial consultation must be kept confidential even if no attorney-client relationship is ever formed between the attorney you work for and the prospective client. Paralegals also have ongoing duties of confidentiality after the attorney-client relationship has ended.

RULE 4-1.6: CONFIDENTIALITY OF INFORMATION
(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by Rule 4-1.6(b).

(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent death or substantial bodily harm that is reasonably certain to occur;

(2) to secure legal advice about the lawyer's compliance with these Rules;

(3) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or

(4) to comply with other law or a court order.

RULE 4-1.18: DUTIES TO PROSPECTIVE CLIENT

(a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 4-1.9 would permit with respect to information of a former client.

(c) A lawyer subject to Rule 4-1.18(b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in Rule 4-1.18(d). If a lawyer is disqualified from representation under Rule 4-1.18(c), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in Rule 4-1.18(d).

(d) When the lawyer has received disqualifying information as defined in Rule 4-1.18(c), representation is permissible if:

(1) both the affected client and the prospective client have given informed consent, confirmed in writing, or:

(2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client and the disqualified lawyer is timely screened from any participation in the matter.

RULE 4-1.9: DUTIES TO FORMER CLIENTS

(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:


(1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client or when the information has become generally known; or


(2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.

C. WORKING WITH THE SECRETIVE OR DISHONEST CLIENT

It is imperative that clients be forthcoming and honest with issues in their lives that may impact their case or the paralegals ability to adequately assist the attorney in representation of the client. This is particularly true in family law issues where the client's entire life is being scrutinized to determine what assets they are entitled to during a divorce or whether it is in the best interest for a child to be an ongoing presence in the client's life. At the very beginning of representation of a client, you must thoroughly explain the importance of the client being 100% open and honest with you. You should always press clients on difficult to discuss issues such as drug abuse, affairs, physical abuse or other activities at the initial client meeting. The client should be advised that your ability to assist in their representation to the best of your ability will be compromised if they are not open and honest with you at all times.

Clients often believe they are in control of all the facts and circumstances of their lives. However clients will inevitably make accidental disclosures by e-mail, text-messaging or other social networking forums about actions they have taken that they believe have been kept secret.

Disclosures about actions clients have taken inevitably occur by the opposing party's counsel in chambers in front of the judge during status conferences. If a client has been truthful with you from day one, you can anticipate these disclosures ahead of time and work with the attorney to develop a strategy for minimizing the effect of the information when it comes to light.

Dishonest clients can often be identified by adhering to stringent file management guidelines in all cases. When a client brings allegations forward about the other party, you must immediately request documentation from the client to corroborate the allegation. You will need the information anyway in order to assist in fully preparing the case. A client that is consistently making allegations that the client cannot in any way corroborate with documentation should be immediately reminded and counseled on the critical importance of honesty, its effect on your attorney / client relationship moving forward and its effect on the credibility of the client's case position overall.

In addition to urging your client to be open and honest, there are several things that during your first client meeting you can urge them to consider in order to avoid problems that can arise during the pendency of litigation. It is important to stress to the client that anything that they do or say while litigation is pending can be scrutinized and often times actions that they take can have negative effects on their case. For instance some good tips to impart to your new client are:

1) Not to speak ill of the other parent in from of the parties' child(ren)

2) Not to unnecessarily withhold contact between the other spouse and the child(ren).

3) Not to move or draw down any bank funds, securities or investment accounts of any kind.

4) Not to harass, cuss at or stalk the other party.

5) Not to dispose of, damage or destroy the personal property of the other party.

A client's behavior during the pendency of any litigation can have a significant effect on the outcome of the litigation. A client who fails to follow the advice of counsel on how to act during the pendency of a family law litigation matter should be immediately cautioned in writing as to the client's decision not to follow your advice and the potential consequences the client may face as a result of the client's chosen course of action. A phone call to the client is fine, but is not sufficient. Always follow up in writing to protect yourself.

An abusive client must be dealt with swiftly and firmly and, again, in writing. The client must be informed that the client's behavior is unacceptable and that continued representation by the attorney and the firm will immediately cease should the behavior be repeated.

If the client continues to not cooperate, the attorney should not be afraid to withdraw from the non-compliant or abusive client's case. Cases involving these types of clients pose malpractice risk to the attorney as these clients will likely look to blame the attorney when their behaviors lead to undesirable results in their cases.

D. ZEALOUS VS. OVER-ZEALOUS REPRESENTATION

An attorney has a duty to zealously represent their clients. As a paralegal, you have the same duty in zealously assisting the client in reaching their legal goals. Zealous representation means to competently and diligently represent your client in an adversary system. In order for a paralegal to zealously represent a client, the paralegal should be competent in the legal matters. If the paralegal works for a family attorney, the paralegal should have a basic understanding of custody, divorce, maintenance, and etc. Also, the paralegal should learn the customary jargon in the family law world like, TRO, modification, alimony, TPR, and etc. In Missouri, the Rules of Professional Conduct specifies that an attorney be competent in representing their client. Competent representation means have the legal knowledge and skills in order to provide effective assistance of counsel. The same is true for paralegals.

RULE 4-1.1: COMPETENCE

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Legal Knowledge and Skill

[1] In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In many instances, the required proficiency is that of a general practitioner. Expertise in a particular field of law may be required in some circumstances.

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

[3] In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client's interest.

[4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 4-6.2.

Thoroughness and Preparation

[5] Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem and use of methods and procedures meeting the standards of competent practitioners. It also includes adequate preparation. The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more extensive treatment than matters of lesser complexity and consequence. An agreement between the lawyer and the client regarding the scope of the representation may limit the matters for which the lawyer is responsible. See Rule 4-1.2(c).

Maintaining Competence

[6] To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education, and comply with all continuing legal education requirements to which the lawyer is subject.

In order to be competent, a paralegal must devote time to writing detailed motions, pleading, and keeping organized files. All the paralegal's responsibilities and duties play a role in zealously advocating for the client. Further, this rule calls attention that an attorney/paralegal must maintain competency. How can a paralegal maintain competency? Paralegals can choose to attend continuing legal education courses specified for paralegals, like this one. Paralegals can read new cases that has changed or modified a rule. Lastly, the paralegal can use their greatest source, their attorney. The paralegal can learn about any new laws, changes, or etc. from their attorney. Not only should the paralegal be competent, the paralegal should be diligent.

RULE 4-1.3: DILIGENCE

A lawyer shall act with reasonable diligence and promptness in representing a client.

[1] A lawyer should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued. See Rule 4-1.2. The lawyer's duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.

[2] A lawyer's work load must be controlled so that each matter can be handled competently.

[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness. A lawyer's duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer's client.

[4] Unless the relationship is terminated as provided in Rule 4-1.16, a lawyer should carry through to conclusion all matters undertaken for a client. If a lawyer's employment is limited to a specific matter, the relationship terminates when the matter has been resolved. If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal. Doubt about whether a client-lawyer relationship still exists should be clarified by the lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after the client's affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a judicial or administrative proceeding that produced a result adverse to the client, the lawyer should advise the client about the possibility of appeal before relinquishing responsibility for the matter. See Rule 4-1.4(b). Whether the lawyer is obligated to prosecute the appeal for the client depends on the scope of the representation the lawyer has agreed to provide to the client. See Rule 4-1.2.

[5] To prevent neglect of client matters in the event of a practitioner's death or disability, the duty of diligence may require that each practitioner prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client of the lawyer's death or disability, and determine whether there is a need for immediate protective action. Cf. Rule 28 of the American Bar Association Model Rules for Lawyer Disciplinary Enforcement (providing for court appointment of a lawyer to inventory files and take other protective action in absence of a plan providing for another lawyer to protect the interests of the clients of a deceased or disabled lawyer) and Rule 5.26.

What does it mean to be diligent? A paralegal should be diligent in promptly completely motions and having their attorney review the documents. The paralegal should be diligent in tracking due dates and responding to opposing party quickly. Additionally, the paralegal should be diligent in responding and answering the questions the client may have. Even though the paralegal needs the attorney's approval, the paralegal should be diligent in bringing deadlines, motions, and client's questions to their attorney immediately.

An example, if you as the paralegal are setting up an appointment for a deposition. The third party, who is being deposed, states they can only do the deposition sometime in the next two weeks because they are leaving the country for a month. The potential trial is a month away. If you fail to tell the attorney or wait until three weeks to schedule the deposition, then you have failed to be diligent. The deposition of the third party may be material to your client's claim. Now, the third party will be unable to be deposed because they are out off the country. The timely deposition of the third party might have caused one party to settle the case.

There is a difference between being a dedicated advocate and doing anything to win. Yes, there are situations and incidents were the court has found that attorneys crossed the line when representing a client. What does it mean to be overzealous? It means be very excited about something to the point you are willing to do anything -- even if anything means crossing an ethical line. How can a paralegal be overzealous? For example, a client is going through a messy divorce. Opposing party has sent over motions and interrogatories for your client to answer. Instead of responding, the attorney instructs you to bombard opposing party with pleading and frivolous motions in bad faith (which, hopefully, never happens), hoping the opposing party will settle to your client's terms. A paralegal has a duty not do anything that is unethical, even if the attorney is requesting you to do something. A paralegal must know the fine line and not cross it. A paralegal has an ethical duty to represent the client, but to not jeopardize your client's case or break court rules. If the paralegal feels uncomfortable about a situation or instruction from their attorney, the paralegal should ask the superior paralegal or the supervising attorney in the office. The paralegal has an ethnical duty in providing zealous representation by being competent and diligent in their duties.

E. FEE AGREEMENTS, RETAINERS, AND COLLECTION OF UNPAID FEES

Fee agreements should be discussed and signed at the time that the client decides to retain your firm. This often occurs at the end of the initial client interview. The attorney should discuss in detail with the client your firm's filing fees, the fee structure, and any required initial deposit. The Missouri Rules of Professional conduct are drafted towards attorney conduct. However the following rule is applicable to paralegals and law firms in general. Additionally, the Missouri Bar has model fee agreements that a law office may choose to use in their ClientKeeper Packet, which is kept online.

Retainer fees (as many have historically called) are legal fees that are due upfront at the start of representation. There are three types of retainers that were historically used :

(1) A general retainer, which is a fee for a specific period of time rather than for a specific project. While no specific representation is contemplated, the client pays for the attorney's availability during the time specified.

(2) Also termed a retaining fee, a deposit or lump sum fee which the client pays in advance. The attorney must place that up-front fee in a trust account. As the lawyer performs work, he or she withdraws money from that trust account as payment for the work done. Any amount that is left over after legal representation has concluded must be refunded to the client.

(3) A special retainer, which is a flat fee that the client pays for a specific case or project. Many states prohibit this form of retainer because it may prevent the client from discharging the attorney at any time during the representation.

However, the Missouri Supreme Court, in Formal Opinion 128, now discourages the use of

the word "retainer." Formal Opinion 128 states specifically:

"We encourage attorneys to avoid using the term retainer when the attorney actually means an advance fee deposit, flat fee, initial deposit, etc. Attorneys best fulfill their duty of communication about fees under Rules 4-1.4 and 4-1.5 when they use plain language that clients are likely to clearly understand." ( emphasis added).

According to Formal Opinion 128, non-refundable fixed or flat fees are also not permissible. On this point, Formal Opinion 128 states:

We believe that all flat fees must be deposited into a lawyer trust account and promptly removed when actually earned, similar to prompt removal of earned hourly fees. Flat fees could be removed based upon reaching a particular stage of a case or based on some other reasonable criteria, depending on the nature and circumstances of the representation.

In sum, after Formal Opinion 128, the use of the word "retainer" is discouraged.

Flat fees are also problematic in my areas of law because they really nothing more than a cap on what a law firm can charge. This means that most fee agreements should simply state that the original fee paid is an "advanced fee" or "initial deposit." Money should only be transferred from the law firm's trust account into the law firm's operating account when it is earned based on hourly billing that has taken place.

RULE 4-1.5: FEES

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;


(4) the amount involved and the results obtained;


(5) the time limitations imposed by the client or by the circumstances;


(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent.

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by Rule 4-1.5(d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter the payment or amount of which is contingent upon the securing of a divorce or dissolution of the marriage or upon the amount of maintenance, alimony or support or property settlement in lieu thereof; or

(2) a contingent fee for representing a defendant in a criminal case.

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;


(2) the client agrees to the association and the agreement is confirmed in writing; and

(3) the total fee is reasonable.

(f) When a fee dispute arises between a lawyer and a client, the lawyer shall conscientiously consider participating in the appropriate fee dispute resolution program. This does not apply if a fee is set by statute or by a court or administrative agency with authority to determine the fee.

Collection of unpaid fees can be a tricky business, but very necessary one. It is important to be thorough and diligent in all communications to the client about legal fees. Communications regarding unpaid legal bills can include a phone call to the client, or letters sent through the mail. Once it has become clear that the client is not going to pay the lawyer may consider withdrawing from the client for non-payment of fees. Another option is for your firm to hire a separate firm that focuses in collection of attorney fees to see if this helps the situation. Your firm can also enter into negotiation or arbitration with the client in order to recover at least some of the legal fees owed based on the work you and the attorney has completed on the case. Do not forget that you have a duty to keep disputed funds separate from the funds that are not in dispute. As a last resort measure, that should be considered thoroughly before proceeding, the firm can sue the client for non-payment or send it to collections. Sending unpaid legal fees to collections may only be beneficial to the firm if the amount is too large to just write-off and forget. Going to court for non-payment can be tricky (and not always a wise idea) because the client can potentially counter-sue for malpractice.


Missouri Supreme Court Rule 4-1.18. cmt. 4.

Missouri Supreme Court Rule 4-1.7.

Missouri Supreme Court Rule 4-1.7. cmt. 6.

Missouri Supreme Court Rules 4-1.1, 4-1.3

Missouri Supreme Court Rule 4-1.0(e)

Missouri Supreme Court Rule 4-1.7. cmt. 18.

Missouri Supreme Court Rule 4.1-9(b)

Id.

Missouri Supreme Court Rule 4.1-9.

Id.

Id.

Id. cmt. 3.

Id. cmt. 4.

Id. cmt.5.

Missouri Supreme Court Rule 4-1.7.

State ex rel. Diane Thompson v. Dueker, 346 S.W.3d 390 (Mo. App. 2011).

Missouri Supreme Court Rule 4-1.6.

Id.

Missouri Supreme Court Rule 4-1.18.

Missouri Supreme Court Rule 4-1.6.

Missouri Supreme Court Rule 4-1.18.

Missouri Supreme Court Rule 4-1.9.

Missouri Supreme Court Rule 4-1.1

Id.

Missouri Supreme Court Rule 4-1.3

Tida Wasch, The Initial Divorce Interview: What Do I Do?(viewed May 4, 2015). http://www.lexisnexis.com/legalnewsroom/lexis-hub/b/commentary/archive/2008/11/17/the-initial-divorce-interview-_2d002d00_-what-do-i-do_3f00_.aspx

Legal Information Institute, Retainer: Definition, (viewed May 5, 2015). https://www.law.cornell.edu/wex/retainer

Missouri Supreme Court Rule 4-1.5.

Carolyn Elefant , An Interesting Technique for Getting Legal Fees paid: Shouldn't Lawyers Be Better Than Mobsters? (viewed May 5, 2015). http://myshingle.com/2008/12/articles/law-practice-management/an-interesting-technique-for-getting-legal-fees-paid-shouldnt-lawyers-be-better-than-mobsters/

American Bar Association, Ethics Tip: Fee Collection Practices, (viewed May 4, 2015). http://www.americanbar.org/groups/professional_responsibility/services/ethicsearch/ethicstipaugust2014.html

Id.