THE OKLAHOMA BAR JOURNAL 20 | JANUARY 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. defining the scope of the representation is the identification of who is and who is not the client. A few common situations may give rise to uncertainty as to the identity of the client. For example, when a lawyer represents a business organization but not constituents, employees or officers of that organization. The identity issue may arise when a lawyer represents a partnership but not individual partners. Similarly, this issue may also arise when the lawyer represents constituents, partners or officers of organizations but not the organization itself.1 At times, someone other than the client may pay the fee for the representation. A third-party payor may think they are entitled to direct the representation or obtain confidential information about the representation. ORPC 1.8(f) prohibits a lawyer from accepting compensation for representing the client unless the client gives informed consent, there is no interference with the attorney-client relationship or the professional judgment of the lawyer and confidential information is kept confidential. When there is a third-party payor involved, a written fee agreement is a handy place to document informed consent. A statement signed by the thirdparty payor acknowledging that they have no ability to direct the representation or get confidential information without the consent of the client can also be included or contained in a separate document. An agreement about who (the client or the third party) is entitled to any refund of any unused part of the fee is also advisable. Clarity in an agreement about who is and who is not the client may prevent issues about confidential information, disqualification and later claims by constituents, officers, employees or a third-party payor, who believed they were represented by the lawyer. Providing that clarity in written form may later save a lawyer from disqualification motions, malpractice actions or disciplinary proceedings. A WRITTEN FEE AGREEMENT SHOULD CLEARLY DEFINE THE SCOPE OF THE REPRESENTATION The lawyer’s fee agreement should clearly set forth the scope of the representation. In many instances, the scope of the representation will be clear. In litigation, for example, a lawyer may be engaged to prosecute or defend a particular action settlement, judgment, dismissal or sentencing. In other representations – such as business formation, purchasing a business or real estate transactions – the scope of the representation may not be as clear. A lawyer who is engaged to represent a client in the acquisition of a business may need to list particular services that are included within the representation, such as preparing contracts, dealing with regulatory agencies, zoning issues and real estate closing. It is as important to define what the lawyer will not do in the course of the representation as it is to define what the lawyer will do. For instance, the lawyer engaged to represent a client in the acquisition of the business may want to specifically exclude conducting due diligence on the viability of the acquired business to avoid misunderstanding should the business not perform to the client’s expectations. REPRESENTING MULTIPLE CLIENTS When representing multiple clients in one matter, the lawyer must address issues that may arise in joint representation. Those issues include potential adversity between the clients, informed consent to the representation and the potential of a nonconsentable conflict as defined by ORPC 1.7(b) and Comment [17]. The agreement should address the issue of confidential information and how it will be shared. The clients should The written agreement may also remind the client of the uncertain cost of the representation when billed by the hour. If the fee is a flat or a fixed fee, it is imperative that the lawyer specifically describe the service to be provided.
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