QUESTION:
Your fee agreement contains a clause stating: “Client consents to Lawyer retaining other co-counsel as Lawyer determines is reasonably necessary. The association with co-counsel will not increase the fee to Client.” This clause:
A. Permits you to associate with co-counsel without further consultation with the client.
B. Permits you to associate with co-counsel without further consultation with the client so long as the requirements of MRPC 4-1.5(e) are met.
C. Permits you to associate with co-counsel without further consultation with the client so long as the requirements of MRPC 4-5.5(a) are met.
D. Isn’t worth the paper it’s printed on.
CORRECT ANSWER: D. Isn’t worth the paper it’s printed on.
Missouri Rule of Professional Conduct 4-1.1 Competence, COMMENT [7] Retaining or Contracting With Other Lawyers, states: “Before a lawyer retains or contracts with other lawyers outside the lawyer's own firm to provide or assist in the provision of legal services to a client, the lawyer should ordinarily obtain consent from the client and must reasonably believe that the other lawyers' services will contribute to the competent and ethical representation of the client. See also Rules 4-1.2 (Scope of Representation), 4-1.4 (Communication), 4-1.5(e) (Fees), 4-1.6 (Confidentiality of Information), and 4-5.5(a) (Unauthorized Practice of Law; Multijurisdictional Practice of Law).”
In Kansas, Tennessee, New Mexico and the ABA Model Rules, see COMMENT [6] (requiring “informed consent”). Although Indiana appears to have not yet addressed this issue in its COMMENTS, ABA Model Rule 1.1 Competence, COMMENT [6] should be reviewed if use of such a clause is considered there.
A bare assertion in a fee agreement with a client that the lawyer may engage in certain conduct is unlikely to rise to the level of information needed by the client to give consent to the conduct at issue as required by Rule 4-1.0(e) Terminology.
The “standard clause” described in the question above is one routinely included in fee agreements used by many lawyers that may potentially implicate the Rules of Professional Conduct.
Lawyer-client fee agreements or contracts are a unique blend of an arms-length-transaction wrapped in the lawyer’s fiduciary duties to the client and professional responsibilities. Clauses in fee agreements should be routinely evaluated from the perspective of their real-world application on the client’s interests and whether in actual practice the agreement could violate the lawyer’s duties or breach responsibilities.
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