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Retainers: 4 Considerations for Covering Your Rear

By William Peacock, Esq. | Last updated on

What's in a retainer? Your rights and responsibilities. Your client's rights and responsibilities. Fee structures. Billing details for expenses. Malpractice insurance details or disclaimers. Limits on service. A termination plan. And, of course, state-mandated legal argle-bargle.

We don't care about your client -- that's your job. We care about you. And contracts are usually interpreted against the drafter, especially when one party is a lawyer. What do you need to include to cover your rear?

Limits on Service

This is so, so big.

Let's say it's a limited scope divorce case. Are you required to advise your client with the sale of his home? How about his taxes? You're thinking dissolution docs for pro se filing. He's thinking you're going to file his 1040.

Be specific about the limits of your service. Err on the side overly-restrictive, as you can always draft a new retainer agreement should your client's needs change.

Billing Details

Ah, the common billing blunders. Many of these can be avoided with an organized billing system that is described in detail in your retainer agreement. Consider these common questions:

Contingency, flat-fee, hourly, or some other alternative billing arrangement? What's your minimum time billing increment? Do you charge for office supplies, photo copies, phone calls, emails? What about filing fees? Do you require a retainer? Does that retainer have to be refilled when its depleted? How often do you send out bills?

Dispute Resolution

Some clients can be troublesome. Disputes will arise. Does your bar have procedures, or a process, for fee disputes? Do you have a preferred private arbitration provider?

What about liens? Some states, California included, have held that a lien on your client's recovery creates an interest adverse to the client, and must be disclosed in the retainer.

State Mandated Argle-Bargle

The best place to start when drafting or reevaluating your form retainer is to check with the state bar.

Here in California, the State Bar provides a lengthy packet [PDF] full of sample form agreements, clauses, and all of the state-mandated gibberish that must be included in your retainer. For example in contingency fee cases, Cal. BPC Code § 6147 (a)(4) requires the retainer to state, "The rates set forth above are not set by law, but are negotiable between an attorney and client."

Have any special clauses in your retainer agreement that are a must? Save us, and your fellow readers from crazed clients by tweeting us @FindLawLP.

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