[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

but nevertheless face clients who are unhappy with the lawyer or the result in their case, or
are otherwise unwilling to pay for the representation. Second, most lawyers do not
intentionally overcharge, but might fail to explain the fee or the progress in the matter so
that clients are unpleasantly taken by surprise when they later receive the bill. Third, some
lawyers charge clients unreasonable fees, and a few do so fraudulently.
The loyalty-based conflict of interest rules discussed in the last three chapters apply only
after a lawyer has agreed to represent a client. Model Rule 1.5 nevertheless imposes several
fiduciary-like requirements in the context of pre-contractual fee negotiations, such as
obligations to communicate the basis of the fee, limitations on the propriety of certain fee
arrangements, and the general requirement that fees are subject to an objective standard of
reasonableness.
Fee Agreements
Model Rule 1.5 requires written contingent fees agreements, and an increasing number of
jurisdictions require them for all fee agreements. 2 Written documents help avoid fee
disputes by clarifying the respective rights of both client and lawyer. Thus, the best practice
is to provide clients with a written document that communicates both “the scope of the
representation and the basis or rate of the fee and expenses for which the client will be
responsible.” 3 The effort a lawyer invests in providing such a writing will more than be
repaid in client understanding and goodwill, and if necessary, in forming the basis for the
resolution of a fee dispute.
A written fee agreement also gives clients and lawyers the opportunity to consider
alternative fee structures. This chapter focuses primarily on the common fee arrangements:
hourly, contingent, and fixed fees. Lawyers and clients are becoming increasingly creative in
modifying these options. Some adopt blended hourly fees, where the client pays a set rate
regardless of which lawyer performs the work. Others prefer retainer plus fees, which
supplement monthly retainers with an hourly fee when the lawyer works more than an
agreed-upon number of hours per month. Task-based fees, which break or unbundle a
representation into different legal tasks, such as complaint drafting, negotiation, or
interrogatories also are becoming more common, along with work-unit fees, which allocate
fixed fees by a client-determined unit such as number of lots sold.
Lawyers who amend fee contracts after the representation has commenced are subject to
conflict of interest rules, including the law of undue influence, all designed to enforce their
fiduciary obligations to clients. This means that changes to initial agreements are presumed
the product of undue influence by the lawyer and voidable by the client. 4
Fee Collection
Of course, lawyers not only must provide clients with clear fee agreements, but also must
abide by their provisions in charging and collecting their fees, and provide clarifications
where necessary. 5 366