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Attorney Fees

Retainer Agreements and Engagement Letters

An attorney earns his or her living based on the time spent on the case, and usually deserves to be (and insists upon being) paid promptly. Except in cases financed by unions or other interested organizations, or in the rare circumstances where a court appoints counsel who agrees to act "pro bono" (as a public service), attorneys commonly ask for a retainer fee. This is paid in advance, generally when the client signs the retainer agreement. Nasty surprises are possible. The fee contract between an attorney and client may be called a retainer agreement or fee letter. Some states require these to be in writing (even if only the attorney has the professional expertise to know what he is drafting) and construe them against the attorney or use panels of both attorneys and laymen to interpret them. Others side with the attorney, sometimes allowing just his word about the fees he intended to charge. Attorneys may avoid initial fee discussions by promises of wanting to start the relationship of trust on a good footing. Yet if the retainer agreement refers to a pay increase, when the client really wants a transfer, a less-ethical attorney may sometimes choose not to inform the client about prompt transfer offers without the pay, or fail to inform the client in a hostile work environment that a pay increase would require a resignation or other lost legal protections.

Discounts?

Partly because of the MSPB's secrecy and the middle-class status of most federal employees, lawyers practicing before the MSPB almost never accept cases on a contingency basis (depending on a successful trial outcome). Bar associations may also have lists of attorneys with reduced fee plans, but that may only indicate the attorney's inexperience. Unions may have fee arrangements with certain attorneys, or underwrite members' legal costs. Other federal employees must pay up front, which puts them at a disadvantage. Most federal district courts (and appellate courts other than the Federal Circuit) have arrangements whereby they require attorneys who practice before them to accept some cases for indigent clients (try referring to the Equal Access to Justice Act or pro bono or in forma pauperis at the district clerk's office to find out the local rule and procedures).

Billing and Payment

Bills are never pleasant. However, they provide important information. Attorneys whose fees are either way above or way below those of other attorneys, or whose bills lack corroborating statements showing what they did and how fast, deserve to be questioned before payment. Of course, clients who receive bills and choose not to pay can expect the attorney's zeal to lessen.

Another common problem involves an attorney who fails to bill, and then on the eve of trial or settlement presents a huge bill and refuses to work further, or to explain what work he has done or to turn over the file until he is paid in full. Explicit legal ethics discussions usually refer to criminal or divorce cases, although the tactic is also common in the employment context. The MSPB has never named or otherwise rebuked an attorney for using it. Thus, some attorneys using it may actually charge far more for negotiating settlements than they would be granted if their bills were reviewed by a court.

Fee Shifting

Sometimes the agency or other employer pays the employee's attorney's fees. The statutes permit attorney fee awards only after a successful trial, which means months and months after the retaliation occurred and after fees mount and perhaps the client's name is published in a public or government database for future reference checkers to review. The delays and risk are usually why the attorney asked for the retainer in the first place. Ethical problems abound, because the attorney is supposed to advocate his client's interests, not his own wallet, nor those of the agency. Yet agencies paying attorneys to counsel their clients to leave is fairly common, because no one wants to be fired or demoted as well as have to pay attorney fees for the privilege. If an attorney mentions the agency paying his fees without a trial, the best advice is either get another attorney, or at least take notes about the attorney's explanation of the consequences. Despite the profession's ethical guidelines, lazy attorneys know malpractice suits are rare and difficult. Plus, the MSPB protects such attorneys--never publishing the names of attorneys missing deadlines, and generally going out of its way to say that this had no effect on the client-employee's case.

Contents





Links

Information about attorney fees

Attorney fee disputes

Ethical aspects of attorney fees

Discounts and other issues
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