Gerald Knapton Provides Some Insights In Recent July 2014 California Lawyer.
For anyone following our blog, you know about the Trope v. Katz, 11 Cal.4th 274, 292 (1995) prohibition which bans in pro per lawyers (subject to jurisprudence on lawyers truly involved with in pro per representation versus those truly advocating their independent interests in the right way) from recouping attorney’s fees in fee collection matters. However, Lockton v. O’Rourke, 184 Cal.App.4th 1051, 1075 (2010) suggested that firms/attorneys could obtain a valid Trope waiver under the right circumstances.
Mr. Knapton suggests based on current case law that "[a] viable way to solve the problem is to insert language in a client retainer agreement stating that the prevailing party will be awarded attorneys fees and costs incurred in a collection proceeding. This sum will include, without limitation, the value of the time spent by the firm’s own attorneys to prosecute or defend such a proceeding, with fees calculated at the normal hourly rate the firm charges to clients." He suggests that attorneys "round up" their many engagement letters and adopt the exact language cited by Lockton.