It is at the attorney’s discretion which terms to include in a retention agreement, depending on the nature of the case and the ethical rules that apply. That said, there are some tough prohibitions that are terms that you don’t want ever lock in. Here is a short selection:
1. Don’t promise too much – Avoid statements such as “We use first-class, unattainable security” or “Your case is exceptionally strong” in your retention agreement. These depictions create an increased standard of care that will be applied if the case goes south and you are exposed to an act of malpractice.
2. Do not exceed a statutory fee – In some countries the fees are regulated by law. For example, if your state limits contingency fees to 33 percent prior to the lawsuit and your fee agreement charges 50 percent, that’s a big red flag that could expose you to a complaint or lose your fee. See e.g. B. In re Flint Water Cases (ED Mich. February 18, 2021) (dissolution of the retention agreement, which, among other things, contains fees that exceed the statutory upper limit).
3. Don’t prohibit customers from submitting a complaint Any clause in a retention agreement that openly prohibits, or even discourages, clients from grieving an attorney – for example, by charging them an additional $ 2,000 when seeking a cash arbitration of a fee dispute – is a major problem . See http://archives.starbulletin.com/2005/02/25/news/story4.html (coverage of an unlicensed attorney in Hawaii whose fee agreement prevents clients from filing a fee dispute resolution).
4. Don’t prohibit customers from submitting negative reviews online – It’s not unethical to require customers not to submit negative reviews online – but it is the type of delivery that can give customers a break. If you’re concerned about customers leaving bad reviews, see ClauseIt’s Client Policy Guide for more proactive ways to address the issue.
5. Don’t prohibit chargebacks – Lawyers believe they are smart by requiring customers to agree in the retainer contract not to use chargebacks on their credit card. The truth is that federal law allows consumers to exercise chargeback rights, at least within a set time frame, and that the parties cannot contract to do so. So if you put in a no chargeback clause, you will be perceived as a lawyer ignorant of the law.
6. Don’t use legalese because you think it will make you look more legal – Retention agreements are laid out against the author. So if customers claim they didn’t fully understand what they signed, this is your bad one, not theirs. So, clean up the pros and cons of your retention agreement, as well as any billing information. Compare this agreement, which devotes four full pages to discussing every conceivable aspect of fees, with this agreement, which is far less detailed. Run your retention agreement through Readable.com to assess the understandability of your prose. Also, keep in mind that the average American has a reading level of around 12 to 14 years of age. So prepare for more changes after taking a test.
7. Do not rely on this bar or supplier template – – The latter isn’t a bit meta – but don’t take a retention agreement form template from your bar association or one created by a vendor without first understanding what shouldn’t be included. I saw at least one of the prohibitions listed above in a vast majority of the templates I found online.
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