Many people begin their relationship with a lawyer without a written fee agreement, relying on trust or hurried by the urgency of proceedings, only for disagreement to arise later over what is owed, the scope of the work, and the treatment of sums paid when the relationship ends prematurely. In truth, clarity from the outset serves both sides. The client knows what they will pay and for what, and the lawyer's entitlement for work done is preserved. In Kuwait this relationship is governed by the legislation regulating the practice of advocacy before the courts alongside the general rules of agency. This article explains the relationship principally from the client's perspective.
The Nature of the Relationship
It is in essence a contract of paid agency, subject to special rules imposed by the nature of the profession:
- An obligation of means, not result: the lawyer must exercise the care a diligent practitioner would exercise in comparable circumstances and does not guarantee success, since the outcome depends on the court's assessment and on the facts and evidence.
- Personal character: a lawyer is chosen for their person and experience, so they may not delegate the substance of the work without the client's authorisation unless permitted by the agreement or required by the nature of the step.
- Professional independence: the lawyer is bound by professional standards and duties to the administration of justice, and may not comply with client instructions to produce what they know to be forged or assert what they know to be false.
- Power of attorney: representation before the courts requires a formal power of attorney of defined scope, and its powers should be specified precisely, particularly as to settlement, waiver, and receipt of funds.
What a Fee Agreement Should Cover
A written agreement is the first safeguard for both sides and should address the following clearly:
- Scope of work: defining precisely what is covered. Is it one instance, or does it extend to appeal and cassation? Does it include enforcement? Ambiguity here is the source of most disagreements.
- Amount and basis: a fixed sum, hourly rates, or staged by phase of the case, with the dates on which each becomes due.
- Expenses: a clear separation of fees from court costs, filing fees, expert fees, and translation. These are ordinarily borne by the client and are not included in the fee.
- Payment schedule: what is payable in advance and what falls due at each stage.
- Early termination: what is owed if the client dismisses the lawyer, the lawyer withdraws, or the dispute settles. This is among the most important and most neglected provisions.
- Taxes and charges: stating whether the amount is inclusive of any additional charges.
The agreement should be executed in duplicate with the client retaining a signed copy, and every later variation should be recorded in writing rather than orally.
Controls on Fee Levels
Fee setting is not left to unfettered will and is governed by professional and judicial considerations:
- Assessment criteria: the effort expended, time taken, importance and value of the matter, its complexity, the lawyer's experience, and prevailing professional practice.
- No excessive fees: fees may not be so excessive as to offend professional standards, and both the professional body and the courts exercise control over this.
- Outcome-linked fees: an agreement tying fees to the outcome is subject to professional controls and may not become a share in the subject matter of the dispute in a manner contrary to professional standards.
- No purchase of disputed rights: a lawyer may not purchase the disputed right they are handling for a client, preventing conflict of interest.
The Lawyer's Professional Duties
In return for fees, the lawyer owes fundamental duties for whose breach the client may hold them accountable:
- Professional confidentiality: an absolute duty to keep confidential what is learned by reason of the profession, continuing after the retainer ends, and disclosable only in the cases the law permits.
- Avoiding conflicts: a lawyer may not accept a retainer from the client's opponent in the same or a connected dispute, nor use a former client's information against them.
- Keeping the client informed: advising on the progress of the case, deadlines, risks, and opportunities, and communicating any settlement offer without delay.
- Observing deadlines: the gravest area of default, since missing an appeal deadline may extinguish the client's right permanently and render the lawyer liable.
- Safekeeping documents: preserving the originals of the client's documents and returning them when the retainer ends.
- Separation of funds: not mixing sums received for the client with the lawyer's own funds and remitting them as soon as they fall due.
Dismissal, Withdrawal, and the Right of Retention
The relationship may end before the case does, and the applicable rules should be understood in advance:
- The client's right to dismiss: a client may dismiss their lawyer at any time, as the retainer rests on trust, though dismissal at an inopportune moment or without cause may render the client liable to compensate the lawyer.
- The lawyer's withdrawal: a lawyer may withdraw but must choose a time that does not prejudice the client and give sufficient notice for alternative arrangements, particularly ahead of critical deadlines.
- Right of retention: a lawyer may retain the client's documents as security for fees due, but this right is limited by the requirement that it not cause serious prejudice such as missing an appeal deadline.
- Handover of the file: on termination a handover minute should record the documents delivered, the steps taken, and the deadlines outstanding.
Fee Disputes and Their Resolution
Where fees are disputed, a graduated sequence should be followed:
- Direct settlement: reviewing the agreement and identifying what was actually done. Most disagreements arise from differing understandings of scope rather than bad faith.
- Professional mediation: referring the matter to the competent professional body for conciliation before litigating.
- Judicial assessment: where agreement proves impossible, the dispute is put to the court, which assesses the fees due in light of professional criteria and the effort actually expended.
- Liability claims: where the client suffers loss from serious professional error, such as a missed deadline or omission of an essential step, compensation may be claimed, proof resting on establishing fault, damage, and causation.
Practical Guidance for Clients
- Do not begin work without a written fee agreement however urgent the circumstances.
- Ask expressly about the scope of the agreement and which instances are covered rather than assuming they are.
- Obtain a receipt for every sum paid and never pay without documentation.
- Keep a copy of every document you hand to your lawyer before delivering the original.
- Request periodic written updates on the progress of the case and its deadlines.
- Do not hesitate to seek a second opinion in substantial matters. It is a legitimate right and no reflection on trust.
Clarity between lawyer and client from the first day is the foundation of a productive relationship that protects both. Yamnak Law Firm executes a written fee agreement of clearly defined scope with every client and keeps clients informed of the progress of their matters, building trust and preventing disagreement.
