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objective sought or is otherwise repugnant or imprudent and, thus, that you have advised the client you will not pursue those means? All of these potentially limiting or defining aspects of the lawyer’s representation are best spelled out in the retainer agreement. If not apparent at the outset of the relationship but are developed later, the retainer may be updated so as to further clarify the terms of the relationship. Some lawyers are loath to use a detailed and lengthy
retainer agreement because they fear the letter will confuse or drive off the client. In the attorney-client relationship, however, the lawyer is being retained to apply his/her skills and knowledge to articulate positions clearly and effectively. What better time to first demonstrate to your client your competency in writing in simple, clear, English, than your retainer agreement? And if the limitations of your retention or the fee agreement to which you and the client have purportedly agreed are so confusing that they cannot be spelled out concisely, what better time to clarify those aspects of the relationship than at the outset? Remember, ambiguities will be construed against you, as the drafter of the contract. When creating an effective retainer agreement it is
imperative that you, as the professional, consider where the case may lead. What claims may be asserted and in what venues? Are you licensed or competent to handle cases in those venues? Is it possible, or even likely, that you will need to associate with other counsel in order to effectively represent the client? Pursuant to MRPC 1.5, the division of fees between lawyers who are not members of the same firm is permitted as long as the sharing of fees is proportional to the services provided by each lawyer or each lawyer agrees to be jointly responsible for the representation, and as long as the client agrees to the joint representation and said agreement is confirmed in writing. Tis “contingency” should be anticipated and provided for within the retainer agreement. Te letter can state language along the lines of: “At our discretion, we may associate with other counsel. Te cost to you of the agreement will be no different than you have agreed to pay us, and ONLY if we obtain a recovery for you. By signing this document, you authorize us to do so, provided that the lawyers with whom we associate agree, in writing, to be jointly responsible to you. If, in fact, we take that step, we will advise you and provide you with the confirmation, in writing.”1 Te retainer agreement is also a means of advising the
client of certain business aspects of your practice. Not only must the letter advise the client how he/she may be charged for expenses, such as photocopying, but the letter may
1 Te terms of the association and the specifics of the fee sharing agreement must be appropriately spelled out to the client and this language is offered as a basis from which appropriate revisions must be made.
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also advise the client of your file destruction or retention practice. Te letter may also clarify your office procedures in maintaining electronic communications. Similarly, if you are representing a corporate client or
client whose electronic data and/or computer network may be relevant or significant to the lawsuit, the retainer agreement should also advise the client of his/her obligations to maintain that electronic information and the risks to the case if he/she fails to do so. When faced with destroyed electronic information during discovery, or, worse, just before trial, little will do more to strain the attorney-client relationship than the client’s surprise and dismay that he/she was not advised of the importance to maintain the information at the outset of the lawyer’s retention.
What can your retainer letter NOT do? Pursuant to MRPC 1.8(h), a lawyer cannot enter into
an agreement with a client that prospectively limits the lawyer’s liability to a client for malpractice, unless the client is independently represented in entering into the agreement. Tis does not mean that another lawyer in the same firm can “independently” advise the client to sign the agreement.
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