Retainer Agreements

• Author: Carl W. Gilmore
• Pages: 6-10

6 FAMILY ADVOCATE www.shopaba.org

The rst document shared with any client

likely is the retainer agreement. A good

retention agreement can be a problem-

solver, problem-avoider, sword and shield,

the starting point, ending point, and, with

careful planning, the stops along the way

of a representation. Retainer agreements help mold expecta-

tions and place limits upon them.

In many ways, a retainer agreement is a map of the

representation. Retainer contents have their own map or

guidebook—the rules of professional responsibility. What is

included, or excluded, depends heavily upon responsibilities

to clients. e agreement’s functions merge practice manage-

ment with client communication. Ethical rules inform

agreement contents. Client information expands upon the

requirements.

Function 1: Dening the Relationship

Retainer agreements dene the attorney-client relationship in

two ways. First, according to ABA Model Rule 1.2, the

agreement denes the scope of the relationship, the boundar-

ies of representation. ink of the retainer agreement from

the client’s perspective. e client is hiring a lawyer, not a

divorce lawyer, not a child support lawyer, not a custody

Retainer Agreements

By CARL W. GILMORE

lawyer, but a lawyer. Clients feel they are hiring “their

lawyer,” and lawyers feel they are being hired for a specic

purpose, e.g., a divorce. If the client gets a trac ticket, is the

divorce lawyer now a trac attorney? How about if the case

is appealed; is the trial lawyer on the hook for meeting

appellate deadlines? e answers may very well depend on

what the client thought at the time of retention. e best

indicator of what the client understood is the retention

agreement.

Rule 1.2(c) allows attorneys to limit the scope of employ-

ment. Limiting the scope can exclude other areas for which

the lawyer will not represent the client. Specifying the scope

of representation helps specify when the lawyer will work for

the client and when the client needs to seek additional

representation. Within the scope of representation, retainer

agreements should only include areas for which the lawyer is

competent to practice. However, the retainer agreement can

be broad enough to include other rm members who might

practice other areas of law, such as criminal or real estate law.

It is also helpful to communicate to the client the level of

expertise the attorney has in the various subissues that arise

within the family law case. Specifying that lawyers are not

competent to provide meaningful real property valuations,

for example, denes a limit that will need to be addressed.

Published in Family Advocate, Volume 42, Number 4, Spring 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof

may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.