Carole J. Buckner Surveys Recent Developments in May 2010 Orange County Lawyer Article.
Carole J. Buckner, a Special Assistant United States Attorney, an Adjunct Professor at Western State College of Law, and Chair of the California State Bar’s Committee on Professionalism and Conduct (COPRAC), has written an article aptly entitled “Modification of Lawyer-Client Fee Agreements” in the May 2010 edition of The Orange County Lawyer. We briefly summarize the highlights from this informative article:
- The new proposed rule, with a public comment deadline of June 15, 2010, provides that: “A lawyer shall not make a material modification to an agreement by which the lawyer is retained by the client that is adverse to the client’s interests unless the client is either represented with respect to the modification by an independent lawyer or is advised in writing by the lawyer to seek the advice of an independent lawyer of the client’s choice and given a reasonable opportunity to seek that advice.”
- Several new comments to this proposed rule have also been introduced for consideration. One proposed comment provides that a material modification is “one that substantially changes a significant term of the agreement, such as the lawyer’s billing rate or manner in which fees and costs are determined and changed.” Carved out from the ambit of this comment are increases in fees, costs, and expenses pursuant to provisions in a pre-existing agreement permitting such increases.
- The State Bar’s Office of Chief Trial Counsel (OTC) has taken the position that lawyers must meet the rigorous disclosure requirements set forth in rule 3-300 of the Rules of Professional Conduct, requiring strict disclosures and consent after being the given the opportunity to, or actually consulting with, independent counsel with respect to the retention agreement modifications.
- Formal Opinion 1994-135 already has concluded that rule 3-300 applies to modification of a contingency fee agreement involving front-loaded receipt of attorney’s fees in connection with a structured settlement.
- Ms. Buckner suggests that these proposed changes might mean that attorneys will be incentivized “to make their best bargain at the start of their relationship with their clients, when a lawyer and a client are negotiating at arms length.”
