Do’s and Don’ts for Attorney Retainer Agreements

As with any relationship, it is important that clients and their attorneys communicate clearly about the nature of the attorney-client relationship and the fee structure for that representation.

Both attorneys and their clients should vet one another. Clients should ascertain if the work is within the attorney’s customary area of practice. Attorneys should be cautious in substituting in for prior counsel or where the client has a history of non-payment of professionals.

When a client and their counsel decide to proceed, consider the following:

1. Do Put It In Writing

While retainer agreements may not be required in all states for every type of engagement, it is folly to not have a written retainer agreement for all engagements.

A retainer agreement is a type of contract. Absent illegality, fraud, coercion or the inclusion of terms prohibited by applicable rules of conduct or law, it will generally be enforceable.

2. Do Not Proceed On A Handshake

Oral agreements over a handshake are of questionable enforceability and devolve into a credibility dispute between the attorney and the client over the agreement struck. Such disputes are avoidable.

3. Do Use Clear, Easily Comprehensible Language

The retainer agreement should be drafted in language that the average client can understand. He or she should not require a separate lawyer to translate the retainer agreement.

4. Do Not Over Promise

Do not set expectations in the retainer agreement that exceed the level of competency required for the engagement. The attorney who does so may be defining a heightened standard against which his or her alleged malpractice will be measured.

5. Do Spell Out What Services Will and Won’t Be Provided

If the attorney is being hired to handle a particular claim or lawsuit, describe the date and place of the accident or title and case number of the action.

For example, if appellate work or judgment enforcement/defense are excluded from the engagement, then provide notice to the client that such services are not included or will require a separate retainer.

6. Do Not Prohibit The Client From Filing A Grievance

Such provisions are likely unenforceable under applicable rules of professional conduct and may be alarming to prospective clients.

7. Do Educate The Client About Grounds For Withdrawal

Clients should appreciate from the inception of the relationship that nonpayment, a conflict of interest, or a breakdown in the attorney client relationship may result in or require the attorney to withdraw from the representation. The breakdown could include, among other things, ignoring counsel, being deceptive, a failure to cooperate in discovery, and spoliating evidence. This list is not exclusive. Clients should appreciate that the relationship imposes obligations on them too.

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