Education is when you read the fine print.
Experience is what you get if you don’t.
– Pete Seeger
- What is a contingency fee contract?
- Who is responsible for costs on a contingency fee contract?
- What is a straight time contract?
- What is a flat fee contract?
- What is mediation?
- What is arbitration?
- Why do I need an attorney?
- How do I find an attorney?
- Will an attorney tell me what to do?
- What is a Limited Liability Company?
- What is Board Certification?
- What is an AV Rating?
What is a contingency fee contract?
A contingency fee contract is a contract between attorney and client where the attorney is paid
for their services with a percentage of the money recovered for the client. Under Texas
law, any contingency fee arrangement between attorney and client should be
reduced to writing, and the basis for allocating costs set forth in the
The client is ultimately responsible for costs. The attorney may advance certain costs on the
client’s behalf, or may require the client to advance the costs before
committing the obligation. In some instances, the costs may be paid for out of
the client’s portion of the recovery.
A straight time contract is a contract between attorney and client where the attorney is
paid for their services on an hourly rate basis. Other billable services, such
as paralegal support services, may also be included in the contract. The client is responsible for the costs, if any, such as filing and service fees, recording fees, etc. Our firm generally handles probate cases that require an administration on a straight time basis. This is because the probate of each estate is very different from one another. For example, some estates require a detailed Inventory be prepared, while others can file an Affidavit in Lieu of Inventory. Some estates have secured creditors that need to be given notice, and others do not. Some estates have creditor claims that need to be handled, while other estates have no creditors.
Some services may be performed on a fixed fee basis, where a specific service carries a specific
fee. In our office, we usually prepare our estate planning documents on a flat fee basis, where the cost for each documents is specified, and the client decides which documents they would like to prepare. That way the client will know in advance what the total costs will be. We are able to handle some type of probate actions, such as Probating a Will as Muniment of Title, preparing Small Estate Affidavit and Orders, and preparing Affidavits of Heirship on a flat fee basis. Most client like knowing what things are going to cost in advance, so whenever possible, we try to offer that option to our clients. to writing, and the basis for allocating costs set forth in the contract.
Mediation is a method inducing all parties to reach a mutually satisfactory settlement. It is a purely voluntary procedure, and becomes binding only when a settlement agreement is reduced to a
document signed by the parties. The mediator’s function is to facilitate the possibility of settlement.
Arbitration may be compulsory, if made a contractual requirement between the parties. There the parties present their arguments and evidence to an arbitrator, or a panel of three arbitrators, and
the arbitrator(s) make a ruling as to what the judgment will be. That judgment, made by the arbitrators, is final and not appealable, save for very limited and complex circumstances.
You don’t! As long as you are representing yourself, the law allows individuals to
represent themselves in litigation. This is what is called being “Pro Se”. But litigation is procedurally complex, and a misstep could cost you the lawsuit. The only safe area is in Small Claims Court, where the rules are waived for the individual.
In most probate cases, an attorney is required because you are not representing “yourself”, but representing the “Estate”. You usually may not represent another party unless you are an attorney, with the exception of Small Claims and Justice Court actions if you are an officer of the entity and are representing the entity. In some counties, such as Harris and Montgomery counties, a non-attorney may file a Small Estate Affidavit and Order. However, some other counties in Texas require it be filed by an attorney.
When you engage a lawyer, you are getting an individual who is bound to zealously advocate your position, and who bears a fiduciary duty to you. The lawyer is either knowledgeable in the area of
practice so engaged, or will become competent in that area of practice in order to properly handle their duties to you.
Unless you are willing to put forth the time and effort to become competent in the areas of law and procedure that apply, so you can conduct yourself with the same competence as an attorney, engaging a lawyer is the surer and safer course of action, even if you may have a legal right to represent yourself.
Speak with friends and acquaintances that have had similar problems or needs, and see if they’ve used an attorney to help resolve the matter. If so, were they satisfied with the services rendered and would they recommend that attorney? Speak with others that have had to use an attorney, and see if they’d recommend that attorney. If recommended, speak with the attorney and see whether they handle matters similar to yours, and whether you feel comfortable with that attorney or law firm.
If the attorney does not handle matters similar to yours, ask if they can recommend other attorneys that may handle matters similar to yours. Then speak with those that are recommended, continuing the process until you have an attorney, or attorneys, with whom you feel comfortable. Not every attorney is right for every client, just like not every doctor or dentist is right for every patient. You want to make sure that you can communicate well with each other, and feel comfortable with one another.
An attorney is a counselor. They can advise on the legal ramifications of a given course of action, and explain what risks may be associated with that action. They can examine options and advise which
options carry the greater or lesser risk. Decisions, other than decisions on purely legal matters, are always left up to the client. Decisions on legal matters are reserved to the attorney, although those decisions are usually discussed with the client beforehand.
The limited liability company [hereinafter LLC or LC] is neither a corporation nor a partnership; rather, it is a distinct type of entity that shares the characteristics and powers of a corporation and a partnership. The owners of an LLC are called “members”; the provisions relating to the management of the affairs of the LLC are called the “company agreement”, and are sometimes also called the “regulations” or the “operating agreement”. That document is roughly the equivalent of a corporation’s bylaws. It can be managed by either its members or by managers, depending upon how the entity was set up.
Members may be individuals, partnerships, corporations, and any other type of legal entity. In Texas, a limited liability company is subject to state franchise tax if their revenue is high enough, and is still required to file a no-tax-due franchise tax return even if no franchise tax must be paid.