When attorneys work on industrial actual property or different transactions, they usually cost for his or her time by the hour. If the transaction doesn’t shut, the invoice is similar as if it did shut. Purchasers who face these payments don’t like them. These payments trigger most ache if the transaction practically closed and the lawyer saved engaged on it—operating up time and authorized charges—till the very finish.

May it make extra sense to have the attorneys agree they’ll receives a commission provided that the deal closes? That may let a shopper keep away from the chance of getting to pay for a transaction that didn’t occur. It might in concept, after all, give the attorneys an incentive to chop corners and overlook dangers and authorized deficiencies simply to ensure there’s a closing. Alternatively, hourly billing might give the attorneys different unhealthy incentives, reminiscent of incentives to be inefficient, overcomplicate transactions, elevate spurious points, and never let these points die. Any billing system creates its personal incentives, each good and unhealthy.

In a single current company transaction, a New York legislation agency agreed it might gather its authorized charges at closing. The governing engagement letter didn’t set a deadline for the closing. It additionally didn’t say what would occur if the deal by no means closed in any respect.

Positive sufficient, the deal by no means closed. It died in such a method that it might by no means come again to life. In the midst of doing that, it ran up a number of million {dollars} in authorized charges. The agency sued to gather these unpaid tens of millions. The shopper went again and seemed on the engagement letter. It stated authorized charges had been due at closing. Noting that no closing had ever occurred, the shopper refused to pay. The matter is now in litigation (New York State Supreme Court docket, New York County, Index No. 651428/2023).

From the shopper’s perspective, that type of association makes an excessive amount of sense. If transactional authorized work is meant to ship worth within the type of a closed transaction, then the worth isn’t realized if the transaction doesn’t shut. The legislation agency shares the chance of effort and time wasted on actions that don’t produce worth.

Did the association make sense from the legislation agency’s perspective? If the agency billed at its common charges however collected nothing if the deal didn’t shut, then the agency was successfully discounting its hourly charges to the extent of the probability that the deal ended up not closing. If the agency priced 10 comparable offers this fashion, and 6 of these finally closed, then the agency would have successfully discounted its charges by as much as 40% total.

In response, the agency ought to demand a premium if it agrees to this type of association and a deal truly closes. For instance, if the agency can reliably predict that six out of 10 comparable offers will shut, then to compensate for the 4 busted offers, the agency ought to cost a 66% premium on the six offers that do shut.

After all, it’s unattainable to foretell the probability of closing for any explicit deal, therefore it’s unattainable to calculate what premium the attorneys ought to cost to compensate for the chance of not getting paid in any respect. So that they’ll most likely overestimate the premium to compensate for the uncertainty. That dynamic, plus shopper resistance to paying a premium on authorized payments that the shopper already regards as too excessive, might drive the attorney-client billing relationship again to the usage of easy hourly charges with no contingency tied as to if the transaction closes.

In some contexts, although, it might nonetheless make sense to regulate authorized charges primarily based on whether or not a closing happens. For instance, if a legislation agency handles a gradual weight loss plan of very comparable transactions involving very comparable counterparties and deal buildings—reminiscent of a gradual weight loss plan of mid-market acquisitions, mortgage closings, or leases—then the shopper and its counsel would possibly very effectively comply with a reduction for offers that don’t shut and premiums for offers that do.

The low cost doesn’t must be 100%. The premium doesn’t must be so dramatic both. Such an association would assist ease the shopper’s ache for offers that don’t occur. And the legislation agency would share within the satisfaction of offers that do shut.