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Presentation Requirement When Signing an Attorney Engagement Agreement in California

If you didn’t know, I have a Youtube channel in addition to this blog that I, more or less, regularly post to. A while ago, I put out a video on the Youtube channel about contingency fee agreements used by attorneys in California. Here it is:

Actually, to be technically correct, I put out two videos. The one I embedded above talks about contingency fee agreements in California cases generally (i.e. all cases except family law). The other video (linked here) talks about contingency fee agreements in family law cases because the question of ‘Can I use a contingency fee agreement in a family law case?’ often comes up.

For background, a “fee agreement” is the contract you sign when you hire an attorney. These agreements are, of course, not specific to California. If you’re going to hire a lawyer in another US state, chances are that lawyer will want a fee agreement of some sort signed also. California, though, has numerous rules that fee agreements have to satisfy. I went over some of those rules in my videos (e.g. required contents of a fee agreement). In this post, though, I’m going to go over the rules relating to presentation.

What “presentation” refers to is that a client needs to be given a copy of the fee agreement after it has been signed. Personally, I would have thought it blatantly obvious that a client needs to get a copy of their signed fee agreement, but it apparently isn’t that obvious because it’s addressed not only once, but twice in California’s statutes. The first is in section 6147(a) of the California Business and Professions Code. That section refers specifically to contingency fee agreements and provides, in pertinent part:

“An attorney who contracts to represent a client on a contingency fee basis shall, at the time the contract is entered into, provide a duplicate copy of the contract, signed by both the attorney and the client, or the client’s guardian or representative, to the plaintiff, or to the client’s guardian or representative.”

The use of the word “shall” at the beginning of the part I bolded and underlined means providing the client a signed copy is mandatory. Section 6147(a) also describes a bunch of information that needs to be in a contingency fee agreement in California which I went over in the video I embedded above.

Section 6147(b) of the California Business and Professions Code describes what happens if the attorney in question fails to provide the client with a copy of the signed contingency fee agreement or provides an agreement with incorrect contents:

“Failure to comply with any provision of this section renders the agreement voidable at the option of the plaintiff, and the attorney shall thereupon be entitled to collect a reasonable fee.”

In other words, if your attorney fails to provide you a copy of the contingency fee agreement or the contingency fee agreement doesn’t have the required information, you as the client can void or cancel the contract if you wish. If you do that, however, that doesn’t mean you don’t have to pay your attorney at all. Your attorney is still entitled to a “reasonable fee,” whatever that happens to mean in your particular situation. Sometimes that might be more than what you would have had to pay under the terms of the written agreement. Other times, it might be less than what the written agreement required.

Lastly, section 6147(c) is also important to remember — namely, that the requirements of section 6147 do not apply to contingency fee agreements for workers compensation cases. Different rules apply to attorney’s fees in workers compensation cases which I might go over in a future post, but not here.

The second instance where the presentation requirement is mentioned is, weirdly, in section 6148 of California’s Business and Professions Code. Section 6147 explicitly refers to contingency fee agreements. Section 6148 refers to all other types of fee agreements. I would say the most common of these would be the hourly fee agreement.

Section 6148(a) provides:

“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 language I bolded and underlined is the same as in section 6147 — namely, the attorney is required to provide a copy of the signed fee agreement to the client. As before with section 6147, sub-section (c) of section 6148 addresses what happens if your attorney fails to provide you a signed copy of your fee agreement:

“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.”

As before, voiding or cancelling the fee agreement doesn’t mean you don’t have to pay your lawyer. Your lawyer is entitled to a “reasonable fee,” whatever that happens to be in your particular situation.

In summary, if you’re an attorney, make sure your client gets a signed copy of whatever fee agreement the two of you sign, lest the contract be voided and you be on the hook for the uncertainty of a “reasonable fee”. If you’re a client, know that you’re generally entitled to a copy of the signed fee agreement.

As always, I hope this post was helpful. It is not intended as a comprehensive discussion or exploration of the topic discussed. If you’re going to use the information I described above in a case of some kind, please do check the authority I refer to because it is entirely possible they might have changed in the time between when I wrote the post and when you’re reading it. If you do have a situation involving a presentation issue regarding a fee agreement, please do find an attorney in your area with whom you can discuss it.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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