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02.19.16

Why Bother with Written Retainers?

Why Bother with Written Retainers?

To every client I counsel and in every lecture I give, I try to emphasize the importance of using a written retainer agreement or retainer letter in connection with every representation undertaken. The reason: it is the simplest and most effective means by which attorneys can support their legal fees, avoid misunderstandings with clients, and defend themselves from certain grievances and malpractice actions.

22 NYCRR 1215.1 requires that any attorney engaged by a client shall provide the client with a written expression of the attorney-client relationship (with some exceptions) at the time of retention. The writing must explain the scope of the legal services, the fees to be charged, and the right of fee arbitration.

The rule specifically exempts, in pertinent part, a representation where the fee to be charged is expected to be less than $3,000 or where the representation undertaken is the same general kind of representation provided previously to the same client. I suggest that these exceptions should be ignored and a written retainer letter or agreement should be executed for every client in every matter in which the attorney undertakes representation — even pro bono.

In sum, 22 NYCRR 1215.1 requires that the retainer memorializes the obligations of the parties; i.e. what the lawyer will do for the client and how much the client will pay the lawyer for those services. Admittedly, what is paramount to most lawyers is getting paid. While failure to abide by 22 NYCRR 1215.1 no longer disentitles any fee recovery, failure to have a written retainer places lawyers

“… at a marked disadvantage, as the recovery of fees becomes dependent upon factors that the attorneys do not necessarily control …” 

Seth Rubenstein, P.C. v Ganea, 41 AD3d 54.

Shifting the burden of proof upon the attorney requires the attorney seeking to collect or defend his fee to prove the precise terms of the agreement, that the agreement was fair, and that the client fully understood and knowingly entered into the agreement Gary Friedman PC v. John J. O’Neill, 115 AD3d 79 (2d Dept 2014).

Beyond memorializing the obligations of the parties to the agreement and protecting the potential loss of income by the lawyer, a written retainer is essential in limiting the scope of the representation and avoiding potential misunderstandings with the client — which often leads to grievances and fee arbitrations, where the burden again falls squarely on the attorney. Thus, in my own retainers and in those I draft for clients, the language regarding what legal services will not be provided for the client is equally or more greatly detailed than the legal services that will be provided.

Equally important to having a retainer agreement is having a retainer agreement specifically tailored to the client matter at hand. There is no such thing as a “one size fits all” retainer. You should have a number of different retainer forms specific to your practice. Each form should be adapted as required for each new matter upon which you are retained. There should be, at the minimum, one section on what the attorney will do, one section on what the attorney will not do, one section on the obligations of the client, and one section on protective disclosures.

Sufficiently detailing what services will be performed and what services will not be performed will assist the lawyer to not only prove entitlement to legal fees but will also serve as the best defense to a grievance or malpractice claim alleging that the lawyer did not perform some legal service and for which he is blamed by the client.

So, even though the rule permits you to go “bareback” without a retainer with some client matters under certain circumstances, it is the much better practice to use a thorough well-drafted retainer that is acknowledged and executed by the client in each retention situation.