Editor's note: This article first appeared in New Jersey Lawyer, the NJSBA's award-winning bi-monthly magazine. To check out the magazine archives visit here.
By Robert McAndrew, Esq.
McAndrew Vuotto, LLC
In order to be well informed of your responsibilities and avoid either an ethics grievance or a malpractice lawsuit, you must be well versed in the Rules of Professional Conduct (RPCs), promulgated by the New Jersey Supreme Court. Here is a look at the rules regarding scope of representation and fees.
RPC 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer
This RPC makes it clear that an attorney must abide by the decisions of the client with regard to the scope and objectives of the representation, including whether or not to settle a matter. RPC 1.2(a). However, your representation of a client does not imply that you endorse the client’s views. RPC 1.2(b). In addition, you may limit the scope of your retention so long as it is reasonable, and the client gives informed consent. RPC 1.2(c). Although the RPC does not specifically state, as a practical matter it is hard to see how one would prove this unless the attorney has put it into writing and the client has given written consent. Finally, you are clearly not permitted to counsel a client if the client intends to engage in criminal, fraudulent or otherwise illegal conduct. RPC 1.2(d).
RPC 1.5 Fees
“A lawyer’s fee shall be reasonable.” RPC 1.5(a). This is the most important directive regarding any fee arrangement. The RPC set out eight considerations any fee arrangement must meet in order to be considered reasonable. For instance, if the matter is being billed on an hourly basis, the hourly rate must be reasonable, the total number of hours devoted to the matter must be reasonable and the total fee must be reasonable. When you have not regularly represented a client for similar services, a written explanation of the basis for the fee must be given to the client within a reasonable time. RPC 1.5(b). This is commonly referred to as the retainer agreement. It is wise to combine the information agreed upon pursuant to RPC 1.2 with the fee information required by RPC 1.5 into one coherent retainer agreement. The requirement of “reasonableness” applies whether the fee is hourly or contingent. If contingent, the writing must explain how the fee will be calculated. RPC 1.5(c). However, a contingent fee is prohibited in certain types of cases, such as criminal matters. See RPC 1.5 (d).
When in doubt, do not hesitate to seek advice from an experienced attorney, preferably one having a background in ethics.