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In fact, should you even contemplate entering into such a potentially dangerous agreement, the client’s independent representation should always be confirmed in writing. Te retainer agreement also cannot provide the lawyer
with a proprietary interest in the cause of action or the subject matter of the representation, except to acquire a lien to secure the lawyer’s fee or expenses, or, subject to MRPC 1.5, create a contingency fee agreement in a civil case.
How can my retainer agreement protect my right to collect the fee?
While a retainer agreement must outline the fee and
expenses that a lawyer will collect, as well as the means by which the fee and expenses will be calculated and when, if a contingency fee, it will be collected, retainer agreements may also, in carefully defined situations, outline how the fee may be collected by the lawyer. Tat is, the retainer agreement can create a lien in favor of the lawyer for fees earned or can obligate the client to sign a Promissory Note or other means of security. However, in doing so the lawyer must be mindful of MRPC 1.8(a). MPRC 1.8(a) provides that a lawyer shall not enter into
a business transaction with a client unless: “(1) the transaction and terms on which the lawyer acquires the interest are fair and
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reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.” Tus, the client should be afforded the opportunity to
negotiate the terms of the transaction and, once agreed upon, the final terms should be clearly and concisely spelled out in writing. Not only should the client’s right to consult with independent counsel be included in the letter, but the letter should urge the client to consult with counsel outside the lawyer’s firm. Should the client decline to do so, this decision should also be confirmed in the letter. Finally, the client must sign the letter confirming the terms of the agreement and right to consult independent counsel, as well as the fact that the lawyer has acted to protect his/her own interests in negotiating the terms of the agreement and not necessarily those of the client.
What if I am only agreeing only to investigate a case?
A retainer or engagement letter can also limit the lawyer’s
agreement only to investigate a potential case, reserving the right not to file suit or pursue a claim at the conclusion of the investigation. However, should your engagement be so limited, additional precautions are appropriate to limit your potential exposure to the client. First, decide, with the client’s input, a reasonable time in which you will complete your investigation and within which you will advise the client of your decision. Ten, note your calendar of those deadlines and abide by them. If there is information needed from the client or assistance required of the client in order to investigate the case, such as documents, medical records, witness names or contact information, this information may be spelled out in the letter, along with deadlines by which time the client must provide the necessary information. It should not be overlooked that a lawyer may be held
liable to a prospective client that the lawyer elects later not to accept for engagement, if the client has not been provided with ample time to pursue the matter thereafter. Tat is, the client must be advised of the lawyer’s decision sufficiently before the expiration of the claim, whether by the statute of limitations, Local Tort Claims Act, or other similar time constraints.
24 Trial Reporter / Spring 2010
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