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client on a contingency fee basis in Maryland, then you must have a written retainer agreement.1 Have the retainer agreement clearly state the parameters
of your representation, especially if it is limited in scope or if the client intends to handle some tasks on his or her own. Do not hesitate to have the retainer agreement state explicitly the circumstances under which an additional retainer will be required, , if a particular matter becomes contested prior to filing suit, prior to filing exceptions, or at the time of an appeal.
Te retainer agreement must clearly state whether fees will be paid on an hourly basis or as a contingency2
or flat fee.
If fees are on an hourly basis, the retainer agreement must explain that the retainer will be placed in a trust account until fees are earned (i.e., hours are worked) and that any money remaining in the trust account will be returned to the client upon conclusion of the case. When representing a client on an hourly fee basis, I
highly recommend the use of an "evergreen retainer” as a way to increase the odds that you will be paid for all of your time in a case. An "evergreen retainer" agreement is one by which the client agrees to keep a minimum balance in his or her
1 Maryland Rule of Professional Conduct 1.5(c). 2 In the State of Maryland, the only time an attorney may handle a "domestic" matter on a contingency fee basis is if it is for the collection of arrears or other definitive amount. See Maryland Lawyers’ Rules of Professional Conduct, Rule 1.5(d)(1).
trust account with your office and to replenish the account to that minimum balance on a periodic (I suggest monthly) basis. An "evergreen retainer" agreement is an excellent way to ensure that there will be money at the end of the case to apply to your last statement. In addition, it will help alert you in most instances when a client cannot or will not pay your fees, usually when there is still some money in the trust account. Even if a retainer agreement provides that you may terminate the attorney-client relationship upon non-payment of your fees, it takes time to withdraw from a case, especially if litigation has already commenced and/or your immediate withdrawal could possibly prejudice the client; and sometimes the court will not grant your request to withdraw. Because you never know how long a case may continue,
the retainer agreement should provide the right for you to raise hourly rates for you and your staff. Additionally, you should advise your client, preferably in writing, prior to raising your hourly rates even if it has been stated in the retainer agreement. In Maryland, the retainer agreement may contain a
provision that all fee disputes shall be submitted to binding arbitration but only if "the attorney advises the client of the right to confer with other counsel with respect to any adverse consequences which might result from agreeing to mandatory arbitration, including the possible effects of
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Trial Reporter / Spring 2010 49
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