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Deal Without Appeal

Q. I took a complicated contingency case to trial and lost. Now my client wants me to appeal the verdict for free. Must I?

A. That depends on whether your fee agreement addressed the issue.

Judging from your question, I suspect that it did not. You have a right to remain silent in your retainer agreement, but your failure to limit the scope of representation will cost you.

If your contingency fee agreement fails to address the appellate stage of the case, or contains ambiguous language on whether you will pursue an appeal, you must file the notice of appeal and brief the case at your client's request. For free.

Assuming that your agreement only set your compensation as a percentage of gross recovery, but failed to specify an additional fee for taking an appeal, you have no right to charge extra for extra work.

This is a textbook example of why it is critical that your fee agreement define – and limit – the scope of your work on a case. If you don't exclude certain tasks or phases of litigation from the scope of representation, a contingency fee based upon the recovery obtained at the end of a "case" will include the appeal of that case as well.

After setting a contingency fee based upon a percentage of all funds recovered on the client's behalf, my own agreements state that, "if we do not succeed in recovering compensation on your behalf, we shall not receive any fee in connection with our services through trial. If an appeal is necessary to preserve a judgment in your favor, we shall receive the same percentage of the total recovery. Conversely, if an appeal is needed to reverse an adverse judgment, we must negotiate an appropriate hourly fee for such representation."

Naturally, if I won the case at trial, I must preserve the victory on appeal to earn my fee. But in a losing cause where the prospects of reversal are not as promising, this language spares me the time and effort of briefing and arguing an appeal without compensation for my efforts.

If you don't have the energy or desire to appeal the case, or won't do it without more money, your fee agreement should be limited to your services through trial. Otherwise, get busy preparing that brief. You're stuck with the case until you – and your appeals – are exhausted.

Ten Commandments of Trust
The Unsettled Client

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By The Lawyer's Lawyers | Kramer & Connolly and Irwin R. Kramer who are responsible for the content of this informational website.   This website is designed for lawyers faced with attorney grievances. As cases do differ, past performance does not guarantee future results.
 

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OR THE BOARD ON PROFESSIONAL RESPONSIBILITY OF THE D.C. BAR