For many lawyers, the core of “economics of law practice” – the focus of this issue of Wisconsin Lawyer – consists of satisfied clients who willingly pay periodic invoices. Lawyers have multiple sources of information to learn about drafting representation agreements, entering time records, and producing bills that clients readily pay. What remains unwritten, and largely unspoken, is how to discuss the initial representation agreement with our clients. This article suggests ways for practicing lawyers to discuss fee agreements with their clients and to use those discussions to build rapport, laying the foundation for successful representation.
At the outset, remember that the provisions of the fee agreement itself may contribute to, or detract from, rapport building. Lawyers who create their own agreements might consider including specific provisions based on ideas gleaned from this article. Lawyers who must explain firm-wide, mandatory agreements do not have the luxury of inserting rapport-building provisions and therefore must rely on the oral discussion to add rapport building into the mix. In either situation, you might also ponder “is anything in this agreement actually negotiable?” How you present your “agreement” may depend on whether any of its terms are fluid.
Plan Your Strategy
Deciding to use a written fee agreement, now required in many situations by SCR 20:1.5, is only the beginning. You must also plan when and how to introduce the fee agreement into the client meeting, taking into account your style, the client’s personality, the area of law, and the flow of the interview. The client knows that he or she must pay you, so whether the written agreement is introduced early or late, you should put the client at ease by acknowledging that a fee agreement is forthcoming. Otherwise, the client will be distracted throughout the conference, wondering how much you charge and how high the bill will go.
Gretchen Viney, U.W. 1978, is a clinical professor and director of the Lawyering Skills Program at U.W. Law School. She maintains a private practice in Baraboo.
Regardless of the timing, the discussion should be an integral part of the interview, not interrupting your ongoing connection to the client. You may choose to have the full discussion early, toward the beginning of the interview, when advising the client about other preliminary matters like confidentiality, privilege, or contact parameters. However, in other situations, you may need a significant amount of information from the client before deciding whether to take the case, and you may decide to hold off entering into the fee agreement until after obtaining that information. If you wait to introduce the fee agreement until later in the interview, you might presage that discussion (“later, we will decide together if I will represent you in this matter, and we can discuss fees then”). Regardless of timing, treating the discussion as an important part of the interview, not as an afterthought, increases the client’s confidence in you.
Be Matter of Fact and Professional
You and the client must reach an agreement as to fees and expenses; the written fee agreement is the vehicle. Introducing and discussing the fee agreement in a professional way allows you to show the client that the client is making an excellent choice in hiring you, or your firm, and that the choice is important enough to be written carefully and signed intentionally. Through business-like tone and body language (no eye rolling or grimacing), you signal the foundational importance of the agreement. Particularly for the client who is entering into a contract for the first time, your professional demeanor during the conversation builds rapport.
Lawyers charge for their services. From the perspective of most clients, a lawyer’s hourly rates, fees, and costs are substantial. In truth, most new lawyers would not be able to afford to hire themselves! But apologizing for charging a fee is a guaranteed rapport breaker. You may see this as a way to be friendly, but the client wants a confident lawyer who is worth every penny. Apologizing only signals that you believe that you are not worth the money, leaving the client equally uncertain about your value.
Explain What You Will Do
Explain what you will do (even if not in the agreement). Many fee agreements contain few, if any, specifics about what the lawyer plans to do for the client, while the bulk of the agreement outlines how and when the client will pay for whatever it is that the lawyer does, as well as the dire consequences that befall if the client fails to pay for those amorphous services. Read through your standard agreement and ask, “If I were the client, would I have a sense of what this lawyer is doing for me and why I should pay him to do those things?” Then think about whether you might be able to add a short paragraph, or list, to address those concerns. If unsure about this aspect of fee agreements, you might review “unbundled legal services” agreements, for which itemizing the lawyer’s services is standard practice.
Be In Tune to What the Client “Hears”
- “I won’t be able to help you unless you tell me everything about your situation.”
- “My usual fee is $250 per hour, but I am willing to discount my services to $175 per hour because of your financial situation.”
- “We won’t be able to achieve all your goals, but we can probably improve the situation.”
To a lawyer’s ear, these statements might seem reasonable, perhaps even encouraging. But a client may hear these very differently: What makes the lawyer so special that the client would give her information that the client has never divulged to anyone? How can $175 per hour qualify as a “discount” rate? Why can’t the highly paid lawyer reach all of the client’s goals?
For a client and a lawyer to work well together, they must have a trusting relationship. The client must have confidence in the lawyer’s ability, feel certain that the lawyer is loyal to the client, and be reasonably comfortable in the relationship. This level of client trust is built step-by-step through effective communication skills; diligent, timely, and capable work; professional attire and demeanor; reliable office systems; capable staff; and an intentional rapport-building, or relationship-building, focus during all contacts with the client.
When the client trusts the lawyer’s skill and fidelity, the client is more likely to provide the sensitive information the lawyer needs for competent representation, not because the lawyer asks, or explains why it is important, but because the client wants the lawyer to have the information. If the client trusts the lawyer, the client understands that the lawyer is not cheating on the bill or charging an outrageous fee. If the client trusts the lawyer, the client is more likely to collaborate and cooperate with the lawyer and to have confidence in both the process and the results. The client is willing to rely on the lawyer’s explanations, to accept the almost inevitable give-and-take of the system, and to be satisfied in the representation. And, of course, a satisfied client is one more likely to pay for the lawyer’s services and to recommend the lawyer to others.
For lawyers who use fee agreements that do not explain the lawyer’s tasks, then the oral discussion must suffice: “When we say ‘legal representation,’ we mean doing whatever is necessary to work on your behalf. In this situation, that potentially means [list possibilities].” This is also a good time to introduce the lawyer-as-zealous-advocate explanation: “We want the best possible outcome for you, as our client. When we represent your interests, we are constantly thinking about what would be the best outcome for you.” Even if the fee agreement does not use those words, your explanation of the depth and breadth of representation builds rapport with the client.
Invite Questions and Discussion
Sometimes a lawyer runs through the fee agreement quickly, in a monotone: the parody of a bad lecture. No one enjoys a lecture, so pause occasionally, allow the client to interject, and periodically ask, “Do you have questions about that?” At appropriate times, you might need to slow down, simplify, and explain new concepts like “trust account” and “computerized legal research.”
Pay Attention to Body Language
The client’s body language may tell you to speed up or slow down even if the client’s words do not. Generally, the lawyer has an obligation to ensure that the client understands the fee agreement (SCR 20:1.4(b)), so simply speeding up or skipping ahead may not be the appropriate response. If the client seems confused or bored, change your approach to meet the client’s needs: “Some of this information is rather technical. Instead of continuing to look at the paragraph line-by-line, let me just tell you how we keep track of our time. Only lawyers think in increments of six minutes, but we really do. We write down our time in tenths of an hour, so 0.1 is six minutes. Some activities have minimum charges but those charges are still written the same way. So, a letter is never less than .25, which is 15 minutes. It’s confusing at first, but now I organize my life around six-minute increments.”
Emphasize Client Satisfaction Over Potential Pitfalls
Throughout the explanation of the fee agreement, focus on what you will do to meet the client’s goals. “You want a plan for the future that will take care of your family. Our firm will be able to create a plan that will meet your goals successfully. While we’re working for you, we will be sending you a bill at the end of each month. If you have any questions about a bill, or about the work we are doing on your behalf, I want you to call me so we can work out any potential issues. Now, this next section of the agreement talks about those bills and how they are handled.”
Sometimes the associate or junior partner explaining the agreement is not the lawyer the client intended to hire. This awkward situation is a chance for you to win over the client. “Attorney Smith, who is the firm’s expert in this area, asked me to meet with you and to take over the day-to-day supervision of your file. I am eager to see your project through to the finish. When we go through this agreement, you’ll see that I’m billed at a lower rate than Attorney Smith. Overall, that’s good for you because when we work together, the billing rate will be lower but, at the same time, if there’s something I’m not sure about, Attorney Smith is immediately available to me. [X] is one of my favorite focus areas, so I’m confident that I’ll be able to work quickly and enthusiastically toward your goals. Now, let’s look at the representation agreement that our firm uses.”
Another awkward situation is when the lawyer explaining the fee agreement believes the agreement is deficient in some way: poorly drafted, one-sided, overreaching. Assuming that this is the fee agreement that you must use, you probably should not signal your feelings to the client. You are a representative of the firm, so when you criticize the firm’s documents, you are undermining the firm. When you “pitch” your legal abilities, you do not want to do so at the expense of the firm you represent.
Sometimes, Don’t Belabor the Discussion
For sophisticated or established clients, signing the fee agreement actually is a discrete activity, not the culmination of a discussion. For those clients, you build rapport by working quickly. “Mr. Brown, before we get started, we need to enter into a written representation agreement. The underlying terms are similar to those we used the last time, with the same hourly rates and billing terms. Why don’t you take a moment to look this over and ask any questions you might have. After we’ve both signed it, I’ll give you a copy for your file.” This type of exchange is appropriate only in limited circumstances, and particularly only when the client is already familiar with the representation agreement or with representation agreements in general.
Discussing a written fee agreement with a client is already part of the lawyer’s legal practice. Lawyers should not settle for a mundane conversation when just a few simple steps can transform it into a rapport-building activity.