Photo Credit: Mercy Health, Flickr.

I recently had an opportunity to review a retainer agreement from a “so called motorcycle attorney” his fee started at the standard 33-1/3 percentage initially upon being hired however in sixty days it went to 40% and then 45% a lawsuit was filed.

I agree that the basic contingency fee agreement should not be a flat fee it should reflect a percentage fee to be paid based upon the level of work which is typically required in order to obtain resolution of a claim. My office typically charges a 25% initial retainer fee which then goes up to the standard 33-1/3 percentage if court ordered mediation or arbitration is required after the case is filed. The fee increase reflects the fact that additional work would be required in order to formally present the case to a court ordered mediator during the mediation that typically can last anywhere from 4 to 8 hours or longer. An arbitration is really a mini trial which requires the same preparation but can be completed much quicker than a conventional trial.

There are certain times that the fee could increase to 40% if the case proceeded to trial. The amount of time and effort needed to prepare almost any case for trial can justify that fee increase.

The fee arraignment, suggested by the other attorney, was excessive and unconscionable. There is no excuse for any contingency fee, which is only paid in the event of a recovery, to increase solely because of the passage of time (in this case its 60 days with no work being actually done of the file attempting to resolve it) or simply because a lawsuit was required to be filed.

The fee which an attorney charges and more importantly receives, from the proceeds of either a negotiated settlement, or a verdict should reflect the expertise, and efforts of the attorney and his staff in obtaining an optimum recovery on behalf of his client.

The retainer agreement, should be a first indication of whether or not the attorney considered to be hired is really concerned about the clients’ best interest, as opposed to negotiating an excessive fee.

Unless there is some unusual complexity regarding the underlying case itself, or uncertainty concerning whether or not an actual recovery will occur no lawyer should ever charge more than 33-1/3 of the gross amount recovered prior to trial regardless of what the circumstances of the case are. Attorney Gary Sernaker has been representing individuals for over 30 years both fairly and reasonably doing his best for his clients while making every effort to minimize the expenses and fees that they are required to incur as a consequence of their injuries caused through the fault of another. If you have any questions or would like some additional information regarding what his representation will entail please contact him at (858) 509-0188 or email at gsernaker@gmail.com.