Mark Dubois ()
A matter I recently handled for a friend reminded me of what I call the “no-fee fee letter” rule. As with some other ethical and disciplinary rules, procedures and protocols, it’s not written down anywhere, but not complying with it can cause a lawyer problems.
We all know that Connecticut is one of the minority states that requires a written document when a lawyer is going to charge a client a fee. By rule and statute, if the matter involves a contingency fee, the writing must contain information about the statutory fee scheme and be signed by the client. I call those fee “agreements” because that’s what they are: contracts.
For all other forms of representation, there’s no ethics requirement of client signature, consent or agreement other than what might be implied by the client’s acceptance of the services. What the rule does require is a writing, prepared and transmitted by the lawyer at the time of or within 10 days of first providing services, which outlines three things: the scope of the representation, the basis or rate of the fee or charge and whether, and to what extent, the client is responsible for costs. (There’s a more robust rule for limited scope reps, but that’s for another day.)
The requirement of a writing is a good thing, both for clients and lawyers. It prevents (or limits) misunderstandings and can be used by either party in case of a later dispute to frame the issues. I used to be on a fee-dispute panel that adjudicated such things as a public service. Our business was reduced significantly when the rule changed a few decades ago to require a writing before a fee was charged.
How fancy the writing needs to be is a matter of context. I was involved in a case where the grievance folks found a pencil note on a corner torn off a brown paper bag was too little and disciplined the lawyer. On the other hand, there have been cases where emails have met the test, where that’s how the lawyer and the client were used to communicating. Of course, charging interest, costs of collection, and all the things that a sound business approach might dictate would suggest best practice would be a writing signed to and agreed, but I’m dealing with ethics here.
The “no-fee” letter comes into place when a lawyer provides a service but doesn’t charge a fee. By its very terms, the rule only applies to clients, but a “client” can be anyone who receives legal services from a lawyer, fee or not, regardless of how limited the service might be. Friends in disciplinary enforcement have made it pretty clear over the years that they don’t read a requirement of a fee actually being charged into the rule’s requirement of a mandatory writing when services are rendered to a client. Though I think it’s a bit queer to require a fee letter where there is no fee charged (the rule’s titled “fees” not “services” for gosh sake), their interpretation is going to control until someone litigates the issue.
This often comes into play when a lawyer does some quick work for someone, often as an accommodation. No file is opened, and no fee is charged; it would take more time to open a matter in the case management and billing software than it took to perform the service. It’s charged off to good will and client development.
In my friend’s case, the local grievance panel found no probable cause of any rule violation when he met with someone about representing him in a foreclosure, entered an appearance to forestall a default while they explored options, but ultimately did not become involved in the case. Though not finding probable cause of any rule violation, they noted that a “no fee” letter should have been generated, as the filing of the appearance was, arguably, a legal service. They called it a “technical violation,” worthy of note but not of prosecution. It’s a good example of how these local panels wisely temper the letter of the law with common sense.
Some consider the “no-fee” fee letter as a variant of the “I am not your lawyer” letter that legal risk management folks suggest is best practice when lawyers meet with potential clients but decide not to take them or their matter on. It’s a good thing to have in any situation where the client may later accuse you of giving them bad advice or now having a conflict on another matter. It can memorialize your limited involvement and that your relationship is over.
In the end, disciplinary rules are self-described as “rules of reason.” Even though, when we render “one-off” services for no fee, it’s pretty darn clear to the recipient what we did and what we didn’t charge for it, the rule, at least as our disciplinary folks interpret it, requires a writing. I would hope that it doesn’t also require discipline when we mess up and don’t send the letter. Charity should be its own reward.