Clarifying fee agreements and client consents

By DianeI Karpman

Karpman

This column is limited to 500 words, but based on your e-mails, it seems that last month’s topic required additional information. In my heart, I would love to be discussing the Roberts nomination, and whether the documents being sought are within the attorney-client privilege or the executive privilege. Or, how refreshing it was to see Judge Roberts recuse himself from a D.C. panel designated to hear the pending ABA case against the FTC. However, those provocative topics are trumped by my duty to clarify some issues for you.

First, the citation for Visa U.S.A. v. First Data Corp. was wrong. The case is of critical importance for you to have in your “consent” file (the correct location is http://ethicsandlawyering.com/Issues/files/visa.pdf). The consent in the case permitted the firm to represent one client against the other in unrelated matters (Rule 3-310 (C)), and the lawyers were not required to withdraw. Significantly, for those of us who are occasionally verbally challenged, the case has the specific magic language employed in the consent.

SIDEBAR: It is always better to use previously blessed language for consents and fee agreements, because using tried and tested language leaves less opportunity for new or novel judicial interpretations of what you meant by the terms. The new State Bar fee forms are available at http://calbar.ca.gov/archive/calbar/pdfs/MFA/Sample-Fee-Agreement-Forms.pdf.

Obviously, a pro forma blanket consent does not provide the protection that can be achieved with a detailed, fact-specific advance consent. But it will provide you with a modicum of client control, so that a client can’t unilaterally pull the “conflict” card and think that disqualification is automatic.

Let’s have a moment of reckoning. We are using consents to create client autonomy and, what is most important, to control the future. The rules (which only apply to lawyers) are often far too client-centered. They were originally intended to address “widows and orphans,” as opposed to some of our clients who may be market manipulators already occupying a prominent position on Eliot Spitzer’s target list.

The brand new Restatement of the Law of Agency (approved in May),

§8.15, may provide future assistance for lawyers. It maintains “a principal has a duty to deal with the agent fairly and in good faith, including a duty to provide the agent with information about risks of physical harm or pecuniary loss that the principal knows . . .” Some day that may become useful for a lawyer in a jam since a lawyer is the agent of a client.

Finally, the consummate DA of “Law and Order” fame, Fred Thompson, is escorting Judge Roberts through the confirmation process.  Thompson had an esteemed career as counsel in the Watergate hearings. Some of you may consider Thompson’s involvement “unfair.” After all, Martin Sheen and John Spencer of “The West Wing” don’t compare with Thompson’s stature.

Many thanks to the lawyer who caught the incorrect citation. He is now officially entitled to a lifetime subscription to the California Bar Journal.

• Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com.