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time after commencing the representation,” Rule 1.5(b) does not contain an absolute requirement, but only a preference, that the fee terms be placed in writing. In the area of personal injury representation, the preferred
fee arrangement most often is the contingent fee to be collected as a percentage of the client’s recovery. When establishing an attorney-client relationship that is based upon a contingent fee, Rule 1.5 (c) contains the imperatives that a “contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and the other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated” (emphasis added). Te agreement must clearly identify any expenses for which the client will be responsible even if there is no recovery. Although additional considerations regarding the reasonableness of a contingent fee will be addressed in a later section of this article, the main fee-related imperative at the inception of representation is that a contingent fee matter always requires a written agreement bearing the client’s signature. It is also good practice, if not expressly mandatory under the Rules, to explain the terms of the agreement orally, to
14 Trial Reporter / Winter 2012
answer any questions the client may have about the terms and to provide the client with a copy of the fully executed agreement.
Imperatives of Representation: Competence, Diligence and Communication
Once counsel has been retained, the core ethical imperatives of any legal representation must be observed:
1. A lawyer shall provide competent representation to a client. (Rule 1.1)
2. A lawyer shall act with reasonable diligence and promptness in representing a client. (Rule 1.3)
3. A lawyer shall keep the client reasonably informed about the status of the matter, promptly comply with reasonable requests for information and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (Rule 1.4)
Tese three Rules of Professional Conduct are the most
frequently cited rules at issue in docketed complaint files investigated by Bar Counsel’s office. Often a complaint will involve problems in all three areas. While it seems simple enough to understand the plain language of the competence,
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