Utah Law Developments

JurisdictionUtah,United States
CitationVol. 36 No. 5 Pg. 36
Publication year2023
Utah Law Developments
Vol. 36 No. 5 Pg. 36
Utah Bar Journal
October, 2023

September, 2023

Retaining Ethics in Our Retainer Agreements

by Beth Kennedy

Although retainer agreements might be the documents we prepare most frequently in our practices, many lawyers do not give them much thought. But they are more than the trigger that starts a representation. A good retainer agreement ensures that the client knows what they can expect from you – and often equally important, what they shouldn't expect from you. And in preventing this confusion, a good agreement can help to prevent an OPC complaint or a malpractice action.

It's therefore worth the time to make sure our agreements hit all the necessary points. But where do we look for guidance? The rules of professional conduct don't require anything in particular to be included in a retainer agreement. In fact, they don't even require our agreements to be in writing (although they do require any contingent fee arrangements to be in writing). But the rules do govern our relationships with our clients. The retainer agreement is a great place to set the expectations for those relationships and to make sure they comply with the rules.

Here are some tips to consider for your next retainer agreement.

Define the client.

When a single person hires you to represent them in a case, there's no confusion about who you represent. But what if it's a CEO hiring you to represent a company? What if it's an insurance company hiring you to represent its insured? Or if the client's friend is footing the bill? The person signing your contract isn't always the person whose interests you are being hired to protect, and those two sets of interests might even diverge at some point.

The Rules touch on some of this. The Rules are clear that when you represent an organization or a governmental entity, you represent the organization, not any particular person within it. Utah R. Pro. Conduct 1.13(a), (h). And the Rules require us to clean up any confusion about this if there's ever a conflict between the organization's interest and the interest of a constituent we're dealing with. Id. R. 1.13(f).

Your retainer agreement should therefore expressly identify who you represent (and maybe even who you don't). An agreement that clearly defines the client can help to prevent confusion. It will let everyone know whose side you'll be on if there are ever conflicting interests and will protect you if someone later claims that they thought you were their lawyer.

Clarify the payment guarantor's role.

Similar situations arise when the client is not the one who is paying you. For example, it's not uncommon to have a family member foot the bill. But does that buy them the right to know what's going on in the case?

The answer is no. Rule 1.6 forbids us from revealing any information "relating to the representation of a client." Id. 1.6(a). So, if your client wants you to be able to talk to someone – their mom...

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