Attorney-client contracts are not like other contracts for goods or services. Although most business and individuals enjoy a general freedom to enter into private contracts as long as those contracts do not violate any other laws, attorneys and clients do not enjoy the same autonomy.
Indeed, because the attorney-client relationship involves distinct duties and obligations on the part of attorneys, there are limitations to what attorneys can include in their agreements with their clients. Provisions of an engagement letter that violate an attorney’s ethical obligations could be unenforceable but could also constitute violations of bar rules leading to attorney discipline.
The consequences of violating the bar rules can be severe. Below are a few of the limits on attorney relationships that might warrant additional consideration before entering into an agreement with a client or potential client.
Who an Attorney Can Represent
In many situations, a business can sell a product to any customer who wants it and can afford it. However, given the special nature of the attorney-client relationship and the duties involved in such a relationship, attorneys cannot represent just any client who wants to hire them.
Generally, there are two types of restrictions on an attorney’s ability to represent just “anybody.” First, there are prohibitions against conflicts of interest that impact when and whether an attorney can take on a new client. Under Rule 1.7 of the Georgia Rules of Professional Conduct, a lawyer is not permitted to represent a client if there is “a significant risk that the lawyer’s own interests or the lawyer’s duties to another client, a former client, or a third person will materially and adversely affect the representation of the client.” Part (b) of that rule also details the circumstances in which a conflict may be resolved and Part (c) identifies conflicts that may not be resolved by client consent.
Second, although not prohibited, most attorneys will avoid representing clients in matters outside the attorney’s expertise. Although there are some general practitioners who are well-suited to a number of different areas of law, there are some specialties that can create an increased risk of a claim for attorneys who are less familiar with the nuances of such a practice.
How Much an Attorney Can Charge
There are some limitations to what an attorney can charge for her services. Indeed, pursuant to Rule 1.5(a) of the Georgia Rules of Professional Conduct, “[a] lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” The rule goes on to identify a series of factors that bear on the reasonableness of a fee, including the time and labor required, the skill needed, the experience or reputation of the attorney, the difficulty of the representation, and the fee customarily charged by others for similar services. Importantly, per comment  to the rule, this is not an exclusive list of factors nor is each factor relevant to every representation. Attorneys and clients have significant flexibility on this front to determine an appropriate way of calculating the value of the attorney’s services.
Another common issue is whether and to what extent an attorney can adjust the fees mid-representation. It is fairly routine for the fee to be revised as a result of, for example, a firm’s standard annual fee increase. In fact, many firms reserve the right to reasonable fee adjustments in their engagement letters.
On the other hand, a more drastic revision to the fee arrangement in the middle of the representation may be subject to additional scrutiny. The risk is that a court or bar will view those adjustments a bit more skeptically because of the potential power dynamic between an attorney asking for more money and a client who may feel pressure to keep the attorney they have (given the status of the representation).
How Long the Agreement Can Last
Unlike general commercial contracts, clients generally may terminate the attorney-client relationship at any time for any reason.
On the other hand, attorneys may be more limited in terms of their ability to terminate the attorney-client relationship. There are detailed rules that specify when and how an attorney can end an attorney client relationship, including Rule 1.16 on terminating a representation. Not following this rule can subject an attorney to discipline, sanctions, or even the risk of a legal malpractice claim if the client claims harm as a result of the improper withdrawal.
Many firms will consider outlining the grounds for potential withdrawal in the engagement letter. The letter could include some of the more common reasons that the firm may seek to withdraw from an active matter, such as the client’s failure to timely pay fees or expenses; the inability to communicate or locate the client; or the refusal of the client to abide by or follow the attorney’s advice. Notably, however, even when an attorney and client agree on potential terms for withdrawal, withdrawal may still be subject to the approval of a court if the client is engaged in active litigation.
Limits on Liability
Typically, attorneys cannot use the attorney-client agreement to prospectively limit their liability for malpractice, as a matter of public policy. However, many jurisdictions permit attorneys to include mandatory fee arbitration in their agreements with clients. This is because fee arbitration simply determines how a fee dispute will be resolved; it does not limit the attorney’s liability for malpractice or guarantee fee recovery.
Shari L. Klevens is a partner at Dentons US in Atlanta and Washington and serves on the firm’s U.S. board of directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team.
Alanna Clair is a partner at Dentons US in Washington and focuses on professional liability and insurance defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance” and the upcoming 2019 edition of “Georgia Legal Malpractice Law.”