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July 22, 2007

Failure to Create a Retainer Agreement which Covers All the Bases Can Cost You Big!

Retainer agreements, in my opinion, are for the protection of the attorney, period.  It is the only document which protects the attorney and her hard work.  It is the mother of all CYA documents in a solo's arsenal used to protect their work, their time, their profits, their livelihood, and their sanity.  Yet it is the single document I find attorneys take fairly lightly, copying other's agreements, not bothering to research what is required, assuming if someone who has been practicing longer uses it, well, it must be good.  This is a huge mistake.

A retainer agreement is the only contract you have with the client and must cover all the bases and any foreseeable eventuality.

One of the requirements of my class is to create a retainer agreement from scratch for their chosen practice area.  And I tell my students, "if you are currently working at a firm, no matter how prestigious, do not give me their retainer agreement."

So, if one of my students was working at The O'Quinn Law Firm and handed me their retainer agreement for a class action, say, like the one used in the recent breast implantation victory which netted the Texas firm $263.4 million in fees, I would have to say, "this retainer agreement breaches your fiduciary duty to your client."  And this breach cost The O'Quinn Law firm over $25 million of those fees.

Some may take issue when I say the retainer or engagement letter is primarily for the attorney.  But it is the truth.  And if you don't view the contract between yourself and your client this way, you need to.

Start reviewing your retainer agreement and see if it really protects your interests.  Have you updated it to include communications via e-mail?  Does it detail your right to withdraw?  Does it have an arbitration clause?  How do you handle a dispute in fees?  Does it lay out your responsibilities to bill at certain time intervals and the client's responsibilities for payment.  Is there a client waiver of right to dispute after a certain time period has lapsed?  Does it have a Scope of Representation which clearly states what is covered and also specifically states what is not covered?

These are just a very few of the inclusions.  Time to do a reexamination of your retainer agreement.  This is not a static document and should be taken out at least once a year,dusted off, reviewed and updated to reflect new laws, rules and your current situation.


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Heather Sunderman

I am happy with my retainer agreement, I have included the above suggestions, as well as authorization for bringing other counsel or professionals into the matter if necessary and various terms of payment. I have noticed that many clients don't bother to read the agreement, however.

Susan Cartier Liebel

Heather, You indicate most of your clients don't even bother to read the retainer. It is very important for you to go through the retainer agreement with them, even having them initial those areas you believe could be a problem in the future. At the very least, provide a space beside the potential conflict areas for the client's initials to indicate they have read and understood these paragraphs. This document is for your protection, first and foremost.

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