When I started this blog, the first posts I wrote were on what provisions in a decree were enforceable by a court v. contractual in nature, and how each could be addressed if a party failed to abide by the terms.
Now the Legislature has made it easy. The property division, as well as any contractual provisions, are expressly within the power of the court to enforce under the new Tex. Fam. Code Section 9, which goes into effect September 1, 2013, according to H.B. No. 389. You no longer have to decide whether to bring an enforcement action or a breach of contract case.
Of course, when bringing an enforcement action, the deadline to file suit is two years, while a breach of contract allows you to wait up to four years. Just something to keep in mind…
The first post in this series dealt with retainer contracts. The second dealt with flat fee contracts. This is the third and final post in the series, and deals with contingency fee contracts. Remember that these just are broad overviews, and a particular contract can be a blend of two or all three. Read any contract very carefully and make sure you understand it before signing.
Contingency fee contracts are normally used in situations where there is a chance of a large payout, but it will either take a lot of investment and/or the client cannot front the money to pay the lawyer without a successful outcome. Good examples are personal injury cases.
Contingency fee contracts can require clients to pay expenses associated with the case, but typically do not require payment for attorney/staff time. Instead, the client will pay a portion of any recovery to the attorney as the fee. Expect at least 33% of any recovery to be taken by the attorney, up to 50%. It just depends on the individual case. Some even break out the percentage further, with (for example) 30% of any recovery before a demand letter is sent, 35% of any recovery after suit is filed, and 40% of any recovery of a judgment, should the case go to trial.
As always, read the contract closely. Each contract can vary so pay close attention to the terms. If you have a question, ask! Your lawyer would rather have you understand the contract and the process up front so that both of you know what to expect.
Retainer Contracts: Contracts with Lawyers (1 of 3)
Flat Fee Contracts: Contracts with Lawyers (2 of 3)
You should understand the contract with your lawyer. Contracts with lawyers vary, but fit into three main categories – flat fee, contingency, and retainer contracts. This post is about retainer contracts and only provides a brief overview. If you have a contract with a lawyer, or are thinking of signing one, make sure to understand that specific contract.
Retainer contracts require an upfront amount, the retainer, to be placed with the law firm. This goes into a trust account. That money is held in trust until it is used by the lawyer working on your case and billing his or her time. Sometimes expenses are also paid out of the trust retainer. Expenses might include filing fees, service fees, copy fees and/or costs for depositions to name a few examples.
Some retainers have evergreen clauses, which state when your retainer hits a certain level, you must refill the retainer. This makes sure that there is always an amount with the firm to cover time and expenses.
Most firms send out billing statements once a month. The statements should tell you what was done during the past month on your case, how much it cost, and how much is left in the trust account.
Retainer contracts are commonly used in cases where the amount of time needed to pursue the case and/or the monetary payoff is uncertain and can vary greatly. Family law lawyers normally use retainer contracts.
Always make sure you read the contract you will be signing, and if you have questions, ask. The lawyer you work with wants you to understand that contract so that there is no misunderstanding later. The lawyer wants to fight for you, not fight with you.
Fee Contracts: Contract with Lawyers (2 of 3)
Contingency Fee Contracts: Contracts with Lawyers (3 of 3)