Six Forms to Consider — Optional Provisions for Lawyers

Six Forms to Consider

Optional Provisions to Add to a Lawyer Attorney Fee Agreement, Service Agreement or Retainer Contracts to Acknowledge Use of Technology, Privacy Laws or “Paperless” Offices, and the Use of “Cloud” Storage 

The following provisions have been compiled by Claude E. Ducloux, Attorney at Law – Director of Education, Ethics and State Compliance – Lawpay.

Each of these clauses addresses the lawyer’s potential use of a newer technology, billing, or a legal requirement imposed by the majority of states to secure private information, or to advise clients of file destruction policies.  A lawyer may consider using one or more of these, edited or adapted for the lawyer’s own use. Lawyers may also consider combining one or more into an “Exhibit” appended to and executed at the time of the initial agreement. Note that this compilation has been assembled with a demonstrative footer which should appear below indicating the Client’s initials for approval.

DISCLAIMER: The sample agreements made available herein are provided for individual review and analysis, and are delivered without warranty or representation of fitness for specific use or compliance. The receiver hereof is advised to make any necessary modifications or adaptations which may be required for the user's specific needs, or for compliance with the user's applicable practice rules or state statutes. 

FORM 1: Privacy Policy

Most states do, or will have a requirement that holders of private, sensitive or protected information (as defined by law) have in place a Privacy policy. The following simple form may be considered or adapted for that purpose (Ed. Note.)

ATTORNEY PRIVACY POLICY 

1. THIS LAW FIRM MAINTAINS A PRIVACY POLICY AS TO SOCIAL SECURITY NUMBERS AND OTHER PRIVATE INFORMATION AS DEFINED BY LAW.
2. SOCIAL SECURITY NUMBERS AND DRIVER’S LICENSE NUMBERS ARE ONLY USED AS NEEDED AND AS REQUIRED BY LAW.
3. THESE PRIVATE NUMBERS ARE USED TO IDENTIFY PARTIES WHETHER FOR INITIAL SERVICE OF COURT DOCUMENTS, FOR CERTAIN COURT ORDERS, IN REQUIRED REPORTS FILED WITH THE STATE OF TEXAS, OR FOR OTHER           REQUIRED PURPOSES.
4. ALL PRIVATE NUMBERS, INCLUDING BUT NOT LIMITED TO ACCOUNTS, HEALTH DATA, AND OTHER IDENTIFYING DATA PROTECTED BY LAW RECEIVED FROM A CLIENT ARE, AND REMAIN CONFIDENTIAL, AND ARE NOT RELEASED FROM THE FIRM UNLESS AUTHORIZED BY THE CLIENT OR REQUIRED BY LAW.
5. THE EMPLOYEES OF THE FIRM HAVE ACCESS TO THIS PERSONAL INFORMATION BUT SHALL NOT RELEASE IT WITHOUT ATTORNEY AUTHORIZATION.
6. EVERY STEP IS TAKEN TO PROTECT YOUR PRIVACY. YOUR INFORMATION IS KEPT SECURE WITHIN THE FIRM IN FILE FOLDERS, FILE DRAWERS, AND COMPUTERS, UNTIL SUCH TIME THAT THE FILE INFORMATION IS RETIRED AND THE FILE REMOVED TO STORAGE IN COMPUTER FILES OR A LOCKED STORAGE FACILITY. THE CLIENT INFORMATION WILL EVENTUALLY BE SHREDDED OR SECURELY DELTED PER THE FIRM’S FILE DISPOSITION POLICIES.

FORM 2: Digital File Maintenance  

Use with the “Paperless” Office. The purpose of this particular paragraph is to advise the client of the need to securely retain the digital files you will be sending during the representation, and shifting the burden of cost of “paper copies” to the Client, rather than to the lawyer. Secondly, if a client requires encryption, this shifts the burden of obtaining and installing encryption software to the Client. Shifting that burden is discussed an authorized in an ABA Ethics Opinion 471, which allows Lawyers who maintain paperless offices to disclose to clients up-front that if client wants paper copies, they will be expensed)

File Maintenance

During our representation of you, we will be sending you copies of all important contracts, pleadings, letters, notices, and other material which we believe you should review. Our office strives to maintain these documents in digital (paperless) format, so more often these copies shall be in digital format, for ease of retention and portability. You should have a secure place to keep these documents. If you need additional paper copies at any time, we can make those at your expense for our normal copy fees, or cooperate in sending the data to the secure copy service of Client’s choice. Clients may control such costs by keeping digital copies. Should you believe your particular file requires an encryption, you should advise us of the form of such encryption. If our office is required to secure encryption software specifically for your case, the cost of that software shall be included in your bill.

FORM 3: Disposition/Destruction of Client Files

Lawyers have a duty to review client files prior to shredding or deletion to ensure original documents, or other document of value such as share certificates or cash/cash equivalents have been returned to Client. However, this form allows the Lawyer to advise Client’s at the time of retention that they will safely shred or delete the file after 4 years, unless required by law to maintain them longer, such as actions involving trusts or minors. This form duplicates some of the “copy charge” language of Form 2 above, so such duplication should be edited out if these forms are combined.

Disposition of Client files

At the conclusion of this matter, Client is advised that all matters in the Client's file shall be returned to Client upon request. Client is further advised to retain all confidential information or original documents from Attorney's file. Client otherwise authorizes Attorney to destroy in a secure manner the information contained in Attorney's file after four years from the date the legal service is completed. If you want a copy of your file at any time, we shall deliver it to you in the same format in which the file is maintained in our office. If you desire paper copies of files or data which we have solely maintained in digital format, we will either provide you the digital copies as well as making you the paper copies at an additional expense, or cooperate in delivering your digital file to a copy printing service of your choice so that your selected copies may be made at your expense. 

FORM 4: Disclaimer of Liability for Use of Cloud Storage or Technology Exposing Client info to “hacking”  

Lawyers have a duty to act as prudent custodians and fiduciaries of and for client information. This clause is not intended to waive any lawyer duty in that regard, but countenances that a breach of security in cloud-based services or internet service providers may occur without any negligence on the part of the lawyer. Even with this clause, a Client will likely always be able to argue, absent a “real” hack-attack, that there is a lapse on the attorney's part to secure information if confidential information is mistakenly shared.

Storage and Use of Electronic Data

Client is aware, and consents to the retention, maintenance, and storage of client’s information and records relating to this matter in the following forms/locations: Paper (in office and/or storage files); electronic (e.g. computer, handheld devices for e-mail, fax, and/or via the Internet using “cloud storage”); or other like mediums. Attorney will endeavor to take all steps necessary to preserve and maintain the confidentiality of all Client information and records, however Client recognizes and agrees that such information and records are subject to unauthorized access outside the control of Attorney, and agrees to hold Attorney harmless from any non-Attorney caused breaches of confidentiality of Client information and records.

FORM 5: Use of Digital Signatures (also known as E-signatures)

More and more legal offices are beginning to use digital signature technology. This form intends to provide the Client notice that the use of this technology will result in a legally binding signature.

Client understands that current technology allows for the convenience of “Digital signatures” and “Electronic signatures” which can be affixed to documents to speed the execution of contracts and other documents requiring attestation by signature. Client agrees that when either the Client or Attorney uses such technology to affix signatures to documents, the electronic signatures will have the same legal significance and binding effect as if the document were signed by the Client or Attorney in person.

FORM 6: Billing and Credit Card Use Sample Language

This simple form may be added or appended to an attorney fee or engagement. Note that the term “retainer” has been modified to include the words “pre-paid fee” retainer, as some jurisdictions (eg. Florida, per comments on Fl.Bar Rule 5-1.1) consider a retainer to be only defined as a flat fee, and thus not to be deposited in the attorney’s trust account. Many jurisdictions, however, consider the pre-payment of fees to be later applied to services of the firm to be a “retainer.” The lawyer may remove such doubt by calling it a “pre-paid fee retainer.”

Attorneys Fees and Payments

Client agrees to compensate Attorney by paying attorneys fees at the rate of $xxx.00 per hour for all legal work performed in this matter. Attorney will charge lesser rates for work performed by legal assistants and/or law clerks ($xxx.00 per hour).

            Attorney acknowledges the receipt of a pre-paid fee retainer from Client in the amount of [$2,500.00.] This retainer shall be deposited into the Attorney’s trust account, to be drawn out monthly and credited against fees to be earned by Attorney. Any unused retainer shall be refunded to Client if the matter is concluded prior to the exhaustion of any funds held on retainer. No Funds deposited in Attorney’s trust account will earn interest for Client.

            Attorney will provide Client, at monthly intervals, an itemized statement setting forth in reasonable detail, all services by Attorney on behalf of Client, and any costs which have been incurred and/or advanced by Attorney on behalf of Client in the above-referenced matter.   The invoice will also show the application of retainer funds to the monthly invoice, and any resulting balances of retainers and/or unpaid fees.

            For Client's convenience, Attorney has created a portal through LawPay, a safe and secure credit card portal designed for lawyers, allowing Client to pay bills and replenish retainers online. Client shall not be charged any fee for credit card use, and no fees are deducted from funds deposited into Attorney's trust account.

Further Authorized Use of Credit Card: Upon the exhaustion of the retainer:

[use one or more of the following options including the blank for client initials]:

[Option1: automatic replenishment of the retainer]

________Client authorizes Attorney to replenish the pre-paid fee retainer by charging an additional amounts to the credit card provided by Client as will maintain the retainer at $__________.

             [Option 2: no automatic replenishment, but authorization for payment]

 ________(initials) Client authorizes Attorney to pay the outstanding fees and costs each month by charging such amounts to the credit card provided by Client for that purpose.

             [Option 3: neither automatic payment or replenishment]

 ________(Initials) Client agrees to pay the outstanding balance 30 days after the end of month being billed. Client may pay via credit card without any additional fees through LawPay using these links:

To pay or replenish pre-paid retainer:     [web address or hyperlink, e.g.] https://secure.lawpay.com/pages/attorneys/trust  

[Note: Call Lawpay’s support to help set up these links.]

 To pay regular monthly bills:   [web address or hyperlink, e.g.] https://secure.lawpay.com/pages/attorneys/operating

_______(Initials) “No Refund” Policy: Client understands that fees paid with an authorized credit card payment are not subject to a right by Client to a credit card refund or chargeback after legal services are performed. Refunds, when appropriate, shall be paid by check or other electronic transfer from Attorney to Client.