The vast majority of all disputes presented to the Interprofessional Committee ("IPC") stem from the providing of services to attorneys handling cases for their clients, and for a variety of reasons, the provider of services hasn’t been paid for part or all of the amount sought. To avoid such disputes, it is highly recommended that all attorneys and those providing professional services to the attorney become familiar with the provisions of the Interprofessional Code, Second Edition ("Code"), but in particular, the following:
§ 1.2 – Experts and attorneys should openly communicate with one another and, wherever possible, agree in advance concerning the terms of their relationship so as to avoid conflict and disputes between the professions.
Open communication is the touchstone of dispute avoidance and dispute resolution. While experts’ services are essential to the administration of justice, the expert and attorney should seek out and discuss ways of minimizing the burden of services on physicians and other experts as well as minimizing the cost to clients. Unless an attorney and expert have a history of prior business dealings, it is desirable to agree in advance concerning the nature, scope, and cost of the expert’s services. (These subjects are discussed in greater detail in other sections of this Code.) The expert may already have set policies, or an agreement may be worked out at the time of the initial contact. Preferably this agreement should be reduced to writing. If an agreement cannot be reached, the matter should be discussed immediately. At all times, the client’s best interests should be the overriding concern. The professionals should agree on as much as possible and submit any residual dispute to the court or an interprofessional dispute resolution committee.
Toward this end, direct communication between the expert and attorney is preferable to communication between secretaries, receptionists, or clerical staff.
§ 9.1 – Experts and attorneys should strive to agree in advance concerning the nature and scope of the services to be performed, the terms and amounts of compensation to be paid for those services, and the responsibility for payment of that compensation. Absent an agreement, disputes may arise which will require resolution by the court or an interprofessional committee.
The expert is entitled to reasonable compensation for providing services in connection with litigation. The issues of fees, costs, and scope of employment for expert services are frequent areas of disagreement. This is usually due to lack of open communication and the absence of a prior agreement between the expert and the attorney.
Therefore, whenever possible, these issues should be clarified before services are rendered and, whenever possible, confirmed by written agreement. It should be remembered that "an agreement" is not created by simply sending out a fee schedule, but is a product of negotiation and mutual consent. Failure by an attorney to object to a written fee policy may be an implied consent to abide by its terms. The agreement should be tailored to fit the specific circumstances, but it is suggested that the following be included:
- The scope of services to be performed by the expert;
- The rate of compensation to be paid for the expert’s services, including whether the fee will vary depending upon the services rendered, e.g., research, review of documents, examination, dictating of report, travel, or testimony;
- Whether advance payments or retainers are required and, if so, under what circumstances;
- The handling of costs and expenses;
- Cancellation terms and amounts; and
- The person or persons responsible for payment of those costs and fees.
Experts are encouraged to develop office policies concerning involvement in legal matters, which can then be reduced to writing and provided to the attorney at the time of the initial request. An attorney provided with such a written policy should immediately assent or object to the terms provided. It is improper for the attorney who does not object to continue to request the expert’s services after being advised of the expert’s policies for involvement in legal matters and then later deny that he or she agreed to the terms of those policies. However, the expert should recognize that providing the attorney with the expert’s policies merely constitutes an offer and does not bind the attorney or client until they expressly or impliedly agree to those terms.
If no agreement can be reached between an expert and an attorney, the expert must recognize that he or she can still be compelled to provide necessary information and a court or interprofessional committee may be called upon to determine the amount and terms of reasonable compensation. A non-treating or consulting expert can simply refuse to participate absent an agreement with the attorney or his or her client.
The foregoing provisions stress communication between attorney and service provider, the preference for written agreements that detail the service to be provided, and the manner in which the payment is to be made. Even if a written agreement has not been created, it is still essential that the parties communicate to attempt to resolve any dispute. Ignoring bills for services rarely makes the bill go away, for the longer a service provider is put off, the less likely such provider will be to entertain a compromise or consider payment terms.
Attorneys, who have no excuse for nonpayment of a provider’s bill, should attempt to immediately pay the bill or work out payment arrangements with the provider. Where the attorney has obligated himself for payment of a fee, it is not an excuse for nonpayment that the attorney’s client has not reimbursed the attorney.
