IVA TARIFA CERO POR CIENTO

Client, the Clinic, the Student Attorneys, and the Supervisors.

3.12.4.1. Does the faculty or student attorney determine precisely who the client is?

3.12.4.2. Does the client prepare a retainer agreement or engagement letter for each client matter?

3.12.4.2.1. Does each faculty or student attorney establish a clear mutual understanding regarding the scope of the representation, the relationships among the client, the student attorney and the faculty supervisor, and the responsibilities of each?

3.12.4.2.2. At the outset of the representation, does the clinical program make certain that clients understand any limitations on the scope or nature of representation that will be provided?

3.12.4.2.3. At the outset of the representation, does the clinic assure that each client understands that the client has ready access to the student attorney’s faculty

supervisor as the person responsible for the oversight of the work of the student attorney?

3.12.4.2.4. At the outset of the representation, does the clinical program obtain from each client a written acknowledgment and consent to be represented by a student attorney?

3.12.4.2.5. Does the retainer or agreement letter contain language describing the clinic’s document retention and destruction policy?

3.12.4.2.6 Does the responsible attorney insure that the client understands the terms of the retainer agreement? 3.12.4.3. Does the clinical program assure the client understands that faculty supervisors and student attorneys,

consistent with the attorneys’ ethical obligations, will protect the confidentiality of the information the client provides?

3.12.4.4. Does the retainer agreement or engagement letter contain an explicit agreement among the parties about who should pay the filing fees and other costs that may arise in the course of the case?

3.12.4.5. Does the clinical program attempt to ensure that clients, student attorneys, and faculty supervisors

understand the client’s right to be kept informed of the progress of the case and to participate in key decisions regarding its conduct?

3.12.4.6. Are clients encouraged to initiate contacts with their attorneys and do clients know how to do so?

3.12.4.7. Does the clinic assure that clients recognize the importance of keeping their attorneys informed of changes in circumstances affecting the case and advising the attorney and the clinic of their whereabouts so that the client may be contacted easily when necessary?

3.12.4.8. Does the clinic assure that clients understand their responsibility to assist in preparing the case by locating witnesses, documents, or physical evidence; cooperating with discovery requests; and keeping records?

3.12.4.9. As the case proceeds, does the clinic provide further written statements of understanding, as necessary, to make clear the expectations and obligations of each party?

Commentary

At the outset of representation, the clinic and the client should determine precisely who the client is and define the scope of the representation and the client’s rights. Determining the identity of the client for whom the clinic will do work is usually straight forward but can be complicated when legal problems affect several family members (e.g., a special education case wherein the clinic might represent one or both parents, the student, or both) or a group of individuals (e.g., a tenant group). The clinic should use a retainer agreement or engagement letter that identifies with precision the client and other incidents of representation.

In addition to the identity of the client, the clinical program’s retainer agreement or engagement letter should address, at a minimum, several other topics, including a detailed description of the matters on which the clinical program will offer representation and any limits on representation with respect to the matters; the date of the initial fact interview; the program’s opinion as to whether or not an attorney is needed for the matter as described in the initial interview; a statement that the program does not represent the potential client until the retainer/engagement agreement has been signed and returned and any other prerequisites, such as a conflicts check or payment of fees, are completed; the amount of fee, if any; the work the basic fee covers; what the basic fee does not cover; the charges, if any, for work not included in the basic fee agreement; a minimum fee, if any; what constitutes out-of-pocket expenses and the client’s responsibility for payment; a statement informing the potential client of the possibility of the program engaging other lawyers at no additional expense to the client to assist the program’s attorneys with the client’s matter, if necessary; a payment schedule; a statement notifying the potential client of the program’s right to terminate services under certain circumstances; a statement by which the client agrees to cooperate and be truthful; a statement giving an opinion of merits of case at the initial stage and cautioning the client that additional developments can cause the opinion to change; a statement that explains judgments and the fact that getting a judgment is no guarantee of collection on the judgment; a statement that the

program cannot guarantee any particular outcome; a statement warning the potential client not to delay in proceeding with the matter because of the possibility of having it barred by laches or a statute of limitations; a paragraph about signing and returning copy of the agreement; a paragraph outlining trust account rules – including IOLTA; a description of the clinic’s document retention and destruction policy, and a paragraph setting a date for return of engagement letter and noting failure to return the agreement allows the program to assume that the potential client has obtained other counsel.

The program also should be certain to include all other provisions that may be required by the jurisdiction in which the program practices. For instance, some jurisdictions require a paragraph regarding the existence or nonexistence of malpractice insurance. The program also may want to include special provisions for potential conflict waivers; special provisions for multiple client representation; an understanding regarding who does or does not get copies of correspondence; where and how communications can be sent; a statement about rules that fee disputes be arbitrated, if allowed or required by local rules; and the relationship to third parties who guarantee or pay fees.

The retainer agreement or engagement letter should mention and get the client’s explicit assent to the involvement of the student attorney, notify the client that the case may be transferred to other students or attorneys to ensure that the client understands that some delay in proceeding with the case may occur during summer months and school breaks. The clinical program may, as appropriate, prepare a separate request that client agree to videotaped recordings of some or all interviews for pedagogical purposes.

The clinical program should prepare and distribute to all clients a statement of client rights, including that they have a right to be informed of the proceedings in their cases, a right to participate in the case, a right to approve any settlement of the case, a right to the return of all documents provided to the clinic by the client, and the right to confidentiality. The statement also may outline how the client can assist in the preparation of the client’s case, including notifying the program of any changes in contact information, changes in

circumstances, or occurrences that relate to the case; providing information and documents requested by the program; and responding to communications from the program. The clinic or the clinical program should ensure, to the extent practicable, that the potential client understands the terms of the retainer agreement.

Resources

Jay G. Foonberg, How to Start & Build a Law Practice 219 et seq (5th ed. 2004); ABA, Standards for the Provision of Civil Legal Aid Stds. 4.2 – 4.5 (2006) and accompanying Commentary.