THURMAN'S INSIDE DIVORCE LAWYER TIPS:
WHEN ARE WRITTEN FAMILY LAW RETAINER FEE AGREEMENTS REQUIRED UNDER THE LAW?
California B & P Code section 6148 mandates that all fee agreements
with divorce or family law attorneys must be in writing if the fees could
reasonably be anticipated to exceed $1,000 - and unfortunately it is hard
to imagine that this will not be the case. Section 6148 applies to all
California attorney fee retainer agreements.
It is unethical for family law attorneys to fail to present to you, and
sign, a retainer fee agreement. You must be given a copy. If you have
attorney fee concerns - or if you are prosecuting or defending a fee dispute
or fee arbitration,
read each of the professional rules I've placed on my Statute's page. Any attorney who plays fast
and loose with these rules is not a good candidate to be your representative
- since the moment they fail to comply with the rules a conflict of interest
arises between them and you, and you can expect them to overbill you and
probably cut corners in other important areas of your matter.
Unfortunately, this section doesn't have a lot of teeth to it in the
sense that the consequences for a divorce lawyer failing to comply may
be limited to disgorging only the amounts they received that were in excess
of a "reasonable" fee. However, telling the attorney you intend
to file a Complaint with the State Bar may get their attention and, personally,
I wouldn't hesitate to recommend such a complaint where the unethical
conduct truly exists because unscrupulous attorneys present a hazard to others.
CALIFORNIA BUSINESS AND PROFESSIONS CODE
Division 3. PROFESSIONS AND VOCATIONS GENERALLY
Chapter 4. ATTORNEYS
Article 8.5. Fee Agreements
B & P section 6148
(a) In any case not coming within Section 6147 in which it is reasonably
foreseeable that total expense to a client, including attorney fees, will
exceed one thousand dollars ($1,000), the contract for services in the
case shall be in writing. At the time the contract is entered into, the
attorney shall provide a duplicate copy of the contract signed by both
the attorney and the client, or the client's guardian or representative,
to the client or to the client's guardian or representative. The written
contract shall contain all of the following:
(1) Any basis of compensation including, but not limited to, hourly rates,
statutory fees or flat fees, and other standard rates, fees, and charges
applicable to the case.
(2) The general nature of the legal services to be provided to the client.
(3) The respective responsibilities of the attorney and the client as to
the performance of the contract.
(b) All bills rendered by an attorney to a client shall clearly state the
basis thereof. Bills for the fee portion of the bill shall include the
amount, rate, basis for calculation, or other method of determination
of the attorney's fees and costs. Bills for the cost and expense portion
of the bill shall clearly identify the costs and expenses incurred and
the amount of the costs and expenses. Upon request by the client, the
attorney shall provide a bill to the client no later than 10 days following
the request unless the attorney has provided a bill to the client within
31 days prior to the request, in which case the attorney may provide a
bill to the client no later than 31 days following the date the most recent
bill was provided. The client is entitled to make similar requests at
intervals of no less than 30 days following the initial request. In providing
responses to client requests for billing information, the attorney may
use billing data that is currently effective on the date of the request,
or, if any fees or costs to that date cannot be accurately determined,
they shall be described and estimated.
(c) Failure to comply with any provision of this section renders the agreement
voidable at the option of the client, and the attorney shall, upon the
agreement being voided, be entitled to collect a reasonable fee.
(d) This section shall not apply to any of the following:
(1) Services rendered in an emergency to avoid foreseeable prejudice to
the rights or interests of the client or where a writing is otherwise
(2) An arrangement as to the fee implied by the fact that the attorney's
services are of the same general kind as previously rendered to and paid
for by the client.
(3) If the client knowingly states in writing, after full disclosure of
this section, that a writing concerning fees is not required.
(4) If the client is a corporation.
(e) This section applies prospectively only to fee agreements following
its operative date.
(f) This section shall become operative on January 1, 2000.