"Engagement Fee" for Divorce?

Q. I charge an "engagement fee" in divorce cases. My retainer provides that this $1,000 fee is "non-refundable" and "earned upon receipt." If nothing else, this ensures that I won't represent the other side. Must I put this fee in my trust account?

A. Unless you count the ring, your client probably didn't charge an "engagement fee" before her marriage. You shouldn't do so before her divorce.

Sorry to kill the romance, but most courts and disciplinary boards frown upon lawyers who take money without doing any actual work. Technically, the rules do not prohibit an attorney from charging an engagement or "availability fee" to bind a lawyer to represent a particular client while foreclosing that attorney from appearing on behalf of an adverse party. The practice probably started in small towns where one spouse would consult with a high-powered divorce lawyer as a pretext for precluding the other from retaining him. To deter this practice, and to ensure that the lawyer receives some compensation for passing up other clients, this made sense to several courts that condoned the practice.

Unfortunately, these decisions are often cited in opinions that punish lawyers for pocketing retainers that should have gone into escrow, or for charging unreasonable fees without providing legal services. No matter how well things are spelled out in your retainer agreement, courts rarely hold fees as "non-refundable" or "earned upon receipt."

In the dictionary, "effort" and "earned" always come before "fees." When that order is reversed, and clients hand you a check up front, follow the alphabet and Rule 1.5 of the Rules of Professional Conduct, place the funds into your client trust account, and be prepared to show the effort required to earn the fee.

"It's All Greek to Me!"
Ghostwriting an Ethical Dilemma

Related Posts

 
Attorney Grievance defense attorney specializes in defending lawyers in disciplinary proceedings before the Maryland Attorney Grievance Commission and the D.C. Bar's Board on Professional Responsibility involving professional misconduct, legal ethics, disbarment, suspensions of law licenses, petitions for disciplinary action, reprimands and sanctions for unethical conduct. If you receive a letter from Bar Counsel Lydia Lawless, Disciplinary Counsel Hamilton Fox, or from any attorney disciplinary board in Maryland or the District of Columbia, retain experienced attorneys with expertise in lawyer discipline and breach of ethics cases to avoid sanctions for professional misconduct. We help lawyers avoid disbarment, suspension, reprimands, censure and informal admonitions by drafting responses to client grievances and ethical complaints; representing lawyers in peer reviews, evidentiary hearings, and oral arguments before the BPR and the Court of Appeals; filing petitions to reinstate an attorney's license to practice law; conducting law firm ethical compliance audits; and drafting legal ethics opinions to protect lawyers from ethics charges. In many cases, disciplinary proceedings may be dismissed, dismissed with a warning, or result in a conditional diversion agreement with Bar Counsel to rectify misconduct. Lawyers may need help in managing their law firm attorney escrow IOLTA trust account and complying with attorney trust accounting rules to avoid charges of ethical misconduct. Do not represent yourself in responding to an attorney grievance, law firm client complaint, or other allegation of ethical impropriety. Attorney grievance defense counsel may help you comply with legal ethics rules, avoid sanctions like suspension or disbarment, and avoid future attorney grievances.

410.581.0070

By The Lawyer's Lawyers | Kramer & Connolly and  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.
 

NOT AFFILIATED WITH THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
OR THE BOARD ON PROFESSIONAL RESPONSIBILITY OF THE D.C. BAR