Pay The Lawyers Only If The Deal Closes?

Should attorneys be paid per hour or based upon outcomes? Both approaches have disadvantages.


When legal representatives deal with industrial property or other deals, they usually charge for their time by the hour. If the deal does not close, the costs is the very same as if it did close. Customers who deal with those costs do not like them. These costs trigger optimal discomfort if the deal almost closed and the attorney kept dealing with it– adding time and legal costs– till the very end.

Might it make more sense to have the legal representatives concur they’ll make money just if the offer closes? That would let a customer prevent the threat of needing to spend for a deal that didn’t occur. It might in theory, obviously, provide the legal representatives a reward to cut corners and ignore dangers and legal shortages simply to make certain there’s a closing. On the other hand, per hour billing might provide the legal representatives other bad rewards, such as rewards to be ineffective, overcomplicate deals, raise spurious problems, and not let those problems pass away. Any billing system develops its own rewards, both excellent and bad.

In one current business deal, a New York law office concurred it would gather its legal costs at closing. The governing engagement letter didn’t set a due date for the closing. It likewise didn’t state what would occur if the offer never ever closed at all.

Sure enough, the offer never ever closed. It passed away in such a method that it might never ever return to life. In the course of doing that, it added numerous million dollars in legal charges. The company took legal action against to gather those overdue millions. The customer returned and took a look at the engagement letter. It stated legal charges were due at closing. Keeping in mind that no closing had actually ever taken place, the customer declined to pay. The matter is now in lawsuits (New York State Supreme Court, New York County, Index No. 651428/2023).

From the customer’s viewpoint, that sort of plan makes a lot of sense. If transactional legal work is expected to provide worth in the kind of a closed deal, then the worth isn’t understood if the deal does not close. The law practice shares the threat of time and effort squandered on activities that do not produce worth.

Did the plan make good sense from the law office’s point of view? If the company billed at its routine rates however gathered absolutely nothing if the offer didn’t close, then the company was successfully discounting its per hour charges to the degree of the possibility that the offer wound up not closing. If the company priced 10 equivalent offers by doing this, and 6 of those ultimately closed, then the company would have efficiently discounted its charges by approximately 40% total.

In reaction, the company must require a premium if it accepts this sort of plan and an offer in fact closes. If the company can dependably anticipate that 6 out of 10 comparable offers will close, then to compensate for the 4 broken offers, the company must charge a 66% premium on the 6 offers that do close.

Obviously, it’s difficult to anticipate the probability of closing for any specific offer, for this reason it’s difficult to compute what premium the legal representatives need to credit make up for the danger of not earning money at all. They’ll most likely overstate the premium to compensate for the unpredictability. That vibrant, plus customer resistance to paying a premium on legal expenses that the customer currently considers too expensive, might drive the attorney-client billing relationship back to using basic per hour charges without any contingency connected to whether the deal closes.

In some contexts, however, it might still make good sense to change legal costs based upon whether a closing happens. If a law company manages a consistent diet plan of extremely comparable deals including really comparable counterparties and deal structures– such as a consistent diet plan of mid-market acquisitions, loan closings, or leases– then the customer and its counsel may extremely well concur to a discount rate for offers that do not close and premiums for offers that do.

The discount rate does not require to be 100%. The premium does not require to be so remarkable either. Such a plan would assist alleviate the customer’s discomfort for offers that do not occur. And the law practice would share in the complete satisfaction of offers that do close.

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