Q&A: Exploring the new sample fee agreements

As the former chairwoman of the State Bar’s Committee on Mandatory Fee Arbitration, Rae Lamothe helped spearhead an effort to revise the bar’s sample fee agreements. It was the first major revision to the forms since they were created in 1987. Lamothe, who started her own firm last month, now puts the new forms to use in her practice. She recently spoke with the Bar Journal about the changes to the forms and the benefits of using them.

Maybe you can start by describing what the forms are and what prompted a revision?

We developed them through the Committee on Mandatory Fee Arbitration. Fee arbitration, as you know, arbitrates attorney-client fee disputes. Frequently, actually more often than not, once something is in arbitration you discover that the fee agreement is either defective or just less than stellar. The State Bar had previously posted suggested retainers on the website, and we set about modernizing and updating them. There had been some changes in the law. The committee has, give or take, 15 people on it. All ranges of practice, all different disciplines. So we had a really good brain pool to sit down, start with the template that we had, and everybody threw in their suggestions of things that were missing, things that were wrong, things that should be improved. There was a smaller committee that got together and really refined all of those suggestions.

So it was mainly a need to update the forms to reflect the current law?

The current law and the types of situations we were frequently seeing in arbitration, mainly retainers that were written in legalese and the clients had no clue what they were signing, or didn’t understand the practicality of it. The new contingency form really goes through and explains what the client’s going to get, what the lawyer’s going to get, what third parties are going to get for costs, the doctors, the whatever.

So making it simpler for the non-lawyer to understand?

Right. That was the idea, and I think we did a pretty good job at it. It went through a number of revisions, and the little committee would get together and they’d send their draft back which they thought included everyone’s suggestions.

What do you think were the most important changes?

I think explaining very clearly if the client is going to be charged for things like copying, travel, email, texts, things like that. The retainer agreement says you can be billed for tenths of a hour for phone calls but there are some folks who think that’s open season on texting you.

So making them reflect how people are communicating now?

That was the idea because everyone on the committee is an actual arbitrator. So they have real-life experience as to the kinds of disputes that arise now.

Is there anything attorneys should keep in mind when using the forms?

They’re guidelines and not carved in stone. I think it would certainly behoove an attorney to stick as close to that language as possible. It’s been thoroughly vetted by the committee and the board and the attorneys of the State Bar. Everyone’s practice is different and has unique needs and unique situations. But no need to reinvent the wheel.

How have the forms helped you?

As opposed to what I did when I opened my office 20 years ago, which was asking a bunch of friends for their retainer agreements and cutting and pasting, it provided a template that could be adapted perfectly and quickly.

Was it a problem to adapt what other people were using for your old firm? 

What I did 20 years ago is I just took a bunch of examples and kind of highlighted the parts I liked in each one and came up with the “Rae Lamothe template.” It took a lot of work. Some of the cutting and pasting I did was probably not from the best sources. So this just takes all of that out of it, and you can sit down with a template you know has been vetted. Fill in the blanks, make a couple of changes that are appropriate to your scenario and go.