In last week's post 'You Want It When!? - A Fee Premium for Urgency', we looked at the issue of whether it is legally permissible and commercially sensible to charge clients a premium for urgency. The point is born of the universal experience of clients who genuinely need to jump to the front of the queue or who don't need to but want to jump to the front of the queue. The question is; ‘should they pay more for the privilege of doing so?’

Okay, I believe you, now how do I do it?

There is no doubt that in many jurisdictions it is legally permissible and I advanced the view that in the absence of compelling reasons not to do so, it is reasonable to expect a client to pay a premium for the privilege. However, there is a huge difference between reaching this conclusion at a theoretical level and actually persuading a client that they should have to pay considerably more than they might otherwise have to in order to have the matter attended to urgently.

The key to successfully doing so is to seek the clients’ prior approval for the premium charge. How does that work? “Excuse me. I have to tell you that if you want this done urgently it’s going to cost heaps more!” If that is the extent of the conversation, you are probably in for a torrid time.

So how do you have that conversation with the client? A colleague in a firm with which I've worked on a consultancy basis recently posed that very question in response to a query from a client about reference to a premium to urgency in the firms’ engagement letter. I suggested the following response, variations on which I have successfully used on hundreds of occasions when still in legal practice.

Dear client...

“Thank you for your e-mail of 5 March seeking clarification of Point 2.4 - our premium charge for urgency. The premium is 30% over and above our normal fee. However, let me explain a little further as this will help you to understand why we do this and more importantly how you can avoid this additional cost.

As you can appreciate, we are always prioritising our professional work for many clients and their commercial imperatives, their operational deadlines and their legal and business constraints. When, for one reason or another, one clients’ work needs to be given priority over all other clients work, we charge a premium because in order to accommodate the clients’ request that they be given priority over everyone else, it often necessitates us having to:

(a) Cancel and reschedule existing commitments to other clients or prior commitments of a personal nature;

(b) Work particularly long hours, usually in the evenings and on the weekends. Even if we are not putting in those hours on that clients’ particular matter, we have to do so in order to ‘catch up’ and avoid letting down other clients who have been pushed down the queue;

(c) Take professional staff off other projects they are working on to expedite completion in accordance with the clients’ urgency request;

Under these circumstances, like many businesses, ‘jumping to the head of the queue’ attracts a premium. However, we prefer to be proactive in helping clients to avoid this additional cost although we appreciate that through no fault of the client it is sometimes unavoidable. Nonetheless, the things that clients can do to help avoid the need for urgency and therefore the additional cost include:

(i) Contact us early. Some clients are afraid to do this because of cost but the reality is that bringing us in very late in the matter can often end up being more expensive in the long run. If nothing else, we can at least plan our work load in the knowledge that you may have a particular requirement coming up in the near future.

(ii) Provide us with all information whether you think it is relevant or not.

(iii) Once you have instructed us, continue to keep us fully informed. You may have a clear understanding of what is occurring but if we are not party to those conversations or correspondence we will not know what is happening and what you are likely to need from us. Again, clients are sometimes reluctant to do this because of the perceived cost of every single contact but we can assure you that it is more cost effective in the long run. Moreover, such contact doesn't need to be time-consuming and as often as not, a quick e-mail from you to us to keep us up to date from time to time is all that is required.
I hope that this satisfactorily answers your queries but if you have any further questions please let me know."

Ask yourself the question on every file...

Sometimes there is no choice in the matter. The clients’ legal team must drop everything else and pull out all the stops to deliver the desired result within the time constraint that has been imposed upon them. In those circumstances, the default position should be the imposition of a premium for urgency but one that has nonetheless been discussed with the client.

Conversely, in circumstances where there is no compelling legal, commercial or other reason for the urgency and it is simply a function of the client's unwillingness to allow the work to be prioritised in the normal way, an upfront discussion about a premium for urgency allows the client to take control of whether they incur the additional cost or not instead of having the premium imposed on them after the event as a fait accompli which will rarely win the practitioner many friends.