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Engagement Letter For Beginner Practitioners: More Than Just A Fee Agreement?

by Kristina Rost and Bradley Maged

Lawyers are taught the importance of defining any legal relationship in writing from the early years of law school. Indeed, if we are to document the business deals' terms and form a valid contract, it is very logical to document the very basic terms of the relationship with your own clients first. For immigration lawyers, it may be more important than for those that practice in different areas of law because we frequently deal with ethically challenging situations such as dual representation, duties to former clients, etc. So what should the ideal (if such exists!) contract for legal representation look like?

First, one should consider basing such a contract on the ABA Model Rules and respective state rules. Without being verbose, the legal representation agreement should explain the scope of representation and should reasonably protect the attorney from various dangers, ranging from an upset client's emotional eruptions to dealing with a possible disciplinary claim filed by such a client with the State Bar.

Second, the contract should reflect the most important terms of representation beyond listing the payment of legal fees schedules.

This article offers some useful tips for preparing such an agreement for legal representation.

Objectives

In preparing an agreement for legal representation, the immigration attorney should first specify the objectives the agreement is designed to accomplish. Is the main purpose of the agreement to inform the client of the legal fee and payment schedule? Is it to advise prospective clients of the dual representation rules? Or is it to serve as a memorandum on the most important issues relating to the representation? And how can you accomplish all of these important goals in one document?

The ABA Rule 1.4 mandates that the lawyer outline the matter so that the client may make an "informed decisions regarding the representation". The contract or agreement for legal services should be a part of the client's final decision regarding the representation and an attestation of the client's understanding of it.

There is, of course, no uniform contract for legal representation for immigration lawyers. Therefore, each lawyer or firm should create one that fits its practice the most - this should be accomplished by adhering to the principles of the Rules of Professional Responsibility.

Therefore, one important objective of representation agreements in immigration law practice should be establishing clear and reasonable expectations of the results. For instance, "no guarantee" clause is one that automatically evokes a necessity of thorough explanation to the client of all possible pitfalls that plentifully exist in immigration laws. Such a clause also ably serves as a base for setting reasonable expectations.

Another thought to keep in mind when drafting a contract is to make sure that the scope of representation is outlined. If a lawyer is entering in the agreement to represent a US citizen in obtaining a fiancée visa, the contract for representation should so specify even if the lawyer has all reasons to believe she or he would be hired to represent the couple for the beneficiary's subsequent adjustment of status. It is important for the purposes of quoting the correct fees as well as for making matters separate and clear.

Because immigration law practitioners face numerous challenging ethical issues, some lawyers use their representation agreements as a vehicle for addressing these issues from the outset. Examples include clauses that advise employers and employees in the green card process of the employers' responsibility to pay all fees associated with obtaining an Alien Labor Certification; on how the representation is going to be structured in the event of a conflict between the parties involved; on what happens if the attorney comes across information that materially undermines his or her ability to ethically represent a client; on the client's duty to provide the attorney with truthful information (and the consequences if such clause is violated); how fee disputes may be resolved; on client's responsibility to maintain his or her own legal status, etc. Such comprehensive agreements go above and beyond simply listing the fees (which is a basic necessity in forming a client-attorney relationship, especially, in immigration law practice) and lawyers may even include a formula for returning unearned fees in case representation ends prior to achieving the desired result. It may not be news to most immigration law practitioners that the more open and honest a lawyer is from the outset, the more comfortable the client is going to be working with such a lawyer.

Clearly explaining the terms of representation is the first opportunity the lawyer has to familiarize the potential client with the attorney-client relationship for the matter at hand. The more possible scenarios are discussed in advance, the more comfortable the client will be in hiring and maintaining a mutually beneficial professional relationship with the lawyer. In fact, even if the representation agreement appears to be lengthy, it may serve as an opportunity to truly bond with the prospective client by going over the clauses one by one and explaining the consequences of each. It also may serve as a red flag in situations when there is a difficult, non-cooperative client or a client that is looking for "quick fix" no matter what. The lawyer in such case should make a determination about whether such a client should be accepted. Usually, discussing of the terms of representation happens at the first or second meeting, and the final result - executing or walking away from it - should feel like the right decision for both parties.

Letters of Engagement are also advisable for corporate clients. Often, it is enough to have a single contract for legal representation regardless of the number of beneficiaries from that client. The trick here is to address the dual representation aspect from the beginning (in case the lawyer only intends to represent a corporation) and to make sure the company-client is very clear on the terms of legal representation for the green card process, when the beneficiary becomes the lawyer's client as well. Usually, discussing (or negotiating) the contract for legal representation with a corporate client is lengthier process, but the importance of having such a contract cannot be overstated.

Types of Fee Agreements

There are typically four types of fee agreements: hourly, flat (one-time payment), contingent (or success) and a hybrid (contingent + hourly or flat retainer + hourly). ABA Model Rule 1.5 specifically outlines the manner in which the fee may be charged and sets forth a prohibition on charging the contingent fees in domestic and criminal matters. In immigration law practice, it is typical to charge the flat, one-time payment fee in matters that warrant it: typical H-1B and L visa petitions, adjustment of status cases based on marriage to USC, fiancée visa petitions, etc. It is warranted, in other words, when the lawyer has a good idea of how much time he or she has to spend preparing the application or petition and addressing clients' inquiries along the way.

Good practice always has room for spelling out the return of the unearned fees. The contract for legal engagement should specify the circumstances when attorney returns fees. For instance, if the client-beneficiary backs off on the eve on filing PERM (she has unexpectedly received her green card through her spouse), what fee must be returned to the employer as unearned? All work for preparing and filing had been done; the only work that is left to do is to review the electronic copy and hit "submit" button. It is wise, therefore, to address such scenario in the letter of engagement so that everyone is clear and is on the same page when such situation occurs.

It is also worth noting that in immigration law practice it is not common to use "success" fee as it is much harder to compel a client to pay for the benefit she or he already received and is in no apparent help for further legal work. Au contraire, in most instances legal fees are paid up front in the beginning of each immigration step or secured by virtue of setting up a sensible payment plan that warrants attorney to get paid. The acceptance of credit cards is becoming widely common as it presents a viable avenue for clients to secure legal services and for attorneys to get paid for their work.

In representing corporate clients, the attorneys may structure fee payments according to mutually convenient agreement: it may be done by piece (bill is sent in one package with forms for signatures), monthly (for all work done during the month) or through retainer (fees are deducted from the retainer). There are, of course, variations on charging corporate clients legal fees (e.g., some firms charge nominal amounts for initial petitions yet charge additional fees for RFEs, derivative beneficiaries' work, and any other additional work that comes out from a basic petition; some - flat fee for basic petitions and hourly - for assistance with immigration legal matters outside of the basic petition scope). Manner in which attorney charge their fees is mostly an individual choice based on the consensus between the parties, experience and personal principles. But having it all spelled out in the Engagement Letter helps streamlining and - ultimately - strengthening the relationship between the client and the lawyer, let alone the fact that this document also serve as a perfect shield against unwanted claims from disgruntled clients.

A. A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

  1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
  2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
  3. The fee customarily charged in the locality for similar legal services;
  4. The amount involved and the results obtained;
  5. The time limitations imposed by the client or by the circumstances;
  6. The nature and length of the professional relationship with the client;
  7. The experience, reputation, and ability of the lawyer or lawyers performing the services; and
  8. Whether the fee is fixed or contingent.

B. The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

C. A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. 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 other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

D. A lawyer shall not enter into an arrangement for, charge, or collect:

  1. Any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or
  2. A contingent fee for representing a defendant in a criminal case.

E. A division of a fee between lawyers who are not in the same firm may be made only if:
  1. The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
  2. The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
  3. The total fee is reasonable.

End Notes

Rule 1.4 Communications states the following: (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

§ Rule 1.5. Fees (http://www.abanet.org/cpr/mrpc/rule_1_5.html)


About The Author

Bradley Maged born in Montreal, Canada, Bradley earned his Juris Doctor degree from the New England School of Law in 1998 and his Master of Business Administration from Suffolk University. Sawyer School of Management in 1999. He is an active member of the Massachussetts and New York State bars, the United States District Court, District of Massachussetts, as well as the American Immigration Lawyers Association (AILA), and the Massachussetts Academy Of Trial Attorneys (MATA). Combining his education and passion for both law and business, Bradley co-founded Maged Rost in 2000 with the goals of providing extraordinary service, achieving succesfull results, and making the legal process as straightforward as possible for its clients. Bradley has taught Business Law at the Sawyer School of Management at Suffolk University. He is a frequent speaker at events for immigrants and their employers. He recently spoke on the subject of H1-B Visas at an International Recruitment Seminar for Nonprofit and Human Services Agencies. Bradley writes newspaper articles that have published in several languages and contributes regularly to his blog, www.immigrantconnect.com He strives to educate aliens on immigration laws and to discourage the most vulnerable among them from being prayed on by so-called "notarios" and "legal consultants" who engage in the unauthorized practice of law.

Kristina Rost is the current Chair of the American Immigration Lawyers Association (AILA), Ethics and Professionalism Committee and Ethics Committee for the AILA New England Chapter. Before her appointment, Kristina served on the Committee for a number of years and had participated in numerous speaking engagements on ethical and practice management issues in any immigration law practice. Kristina also served as co-Chair of the American Immigration Lawyers Association (AILA) Young Lawyers Division (NE Chapter). In May 2007, Kristina was presented with the "Outstanding Immigration Lawyer" award for outstanding legal service to immigrant communities in New England by the Brazilian Immigrant Center of Massachussetts. She regularly writes for an "Ask the Immigration Lawyer" page in New England montly publication "Contact" and for her column at the weekly newspaper "Metro/Brazilian News" and national "Kurier/Russian Weekly Paper". Kristina is a frequent presenter at AILA and other immigration-related conferences, panels, and MCLEs. Kristina stays current with immigration law developments and voices her professional opinion through various venues by publishing and speaking, thus ensuring her involvement in AILA policies and promoting immigration client's goals.


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.


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