|Collecting contingent fees without written agreement
"The Rigors of Fee Agreements" (MCLE self-study, October California Bar
Journal), David M.M. Bell writes, "The maximum contingency fee in a [debt] recovery
action between merchants is set by Business & Professions Code §6147.5." Some
may be misled by this statement.
In fact, the statute says, "In the instances in which no written contract for
legal services exists . . ., an attorney shall not contract for or collect a contingency
fee in excess of" specified limits. No statute limits the contingent fee in a
collection case, to which an attorney and a client may lawfully agree, provided they enter
into a written fee contract. (However, the fee may not be "unconscionable.")
The importance of B&P Code §6147.5 is that it creates an exception to the usual
rule that a contingent fee is enforceable only if it is in writing. In the specified
cases, the statute permits the collection of a contingent fee based only on an oral
agreement if the fee does not exceed the percentages stated in the statute.
Avoid deadbeat clients with replenishing retainer
The very simple fact is that clients hate to pay fees. Ninety percent of civil cases
involve money that the client should be paying or is not being paid. More often than not,
this involves a client who is having financial problems and woe be to the lawyer who
allows this client to "run a tab" for legal services. Obviously, clients who are
facing criminal charges wherein jail time or a large fine and costly court-mandated
programs are involved do not put their lawyer at the top of the list to be paid.
A very simple solution is the written "replenishing retainer." The client who
cannot or, more import-antly, will not pay an up-front retainer fee should be avoided or,
if applicable, referred to an appro-priate pro bono legal provider. In addition to other
aspects, monitoring the financial aspects of the case allow for a timely withdrawal or
substitution of attorney before the client and attorney relationship deteriorates
A client who is continually made aware of and paying the costs and fees involved in
his/her case is more responsible in making decisions. They listen to their lawyer's advice
and are generally, believe it or not, less demanding. They tend to be more amicable in
settlement negotiations and far less likely to allow emotions to cloud their judgment.
More important is the fact that these clients rarely if ever question their bills or
attempt ex post facto fee reductions or file complaints with the bar or malpractice
Bad lawyers deserve harsher punishment
Each month I read with utter consternation about slap-on-the-wrist solutions to errant
conduct of some lawyers. In the October issue: after stipulating to misconduct in 11
cases, [an attorney] will be back again in 18 months if he makes restitution. After
stipulating to misconduct in 16 cases, [another lawyer] may return in 22 months to
continue the carnage. On another page, with stipulating to misconduct in nine cases, he
could be back in five months.
When will we, if ever, face reality in dealing with repeat offenders who harm our
profession and cause the public to distrust our profession?
John A. Weyl
25-hour CLE requirement should be retroactive
The board of governors, in their infinite wisdom, has engaged in unjustified payback
tactics and business as usual behavior, in deciding that those practitioners who waited
until the Supreme Court's decision on the lawfulness of CLE requirements must complete the
old requirement of 36 hours rather than the new requirement of 25. There is no
justification for this stupid decision.
This decision, along with the myriad of other stupid decisions the board makes, is the
very reason I withheld voluntary dues.
Richard J. Burton
Praise for new president
I remember Andy Guilford as one of my first adversaries in some long-forgotten
litigation matter some 20 years ago. While a zealous advocate for his client, he was at
all times courteous, fair and easy to deal with. It was these characteristics that allowed
us to reach an amicable settlement.
If there was any single lawyer in the state that I could have picked to lead the bar
into the new century after the problems of the past few years, it would have been Andy
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