Art, Science & Ethics of the 21st Century Retainer Agreement

1. 10 TIPS FOR A TIP TOP
RETAINER
AGREEMENT:
21st century style!
Carolyn Elefant, MyShingle.com,
Carolynelefant.com
MSBA Solo Day Nov. 2012
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2. Tip 1: A retainer
isn’t just any old
form, run of the
mill agreement
pulled off an
online site
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4. Tip 2: Retainer
can’t be static,
must evolve with
the times.
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5. What’s changed?
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6. Today’s Clients
• More sophisticated
• Greater access
• More skeptical of lawyers
• Shorter attention spans
• Less patient (want quicker turn around)
• Demand for unbundled services
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7. Today’s Law Practice
• Larger firms
• Outsourcing
• Electronic billing and documents
• Alternative fee agreements
• Virtual offices and mobility - work on the
run
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8. Tip 3: Think about all 3 elements of
the retainer agreement & don’t
be afraid to disrupt.
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9. Quickest, easiest and
absolute best way to
cut through the
legalese and clarify
your retainer….
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10. RETAINER
AGREEMENT
Contract between lawyer
and client
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11. My
retainer
agreement
must be
brief!
Tip 4: To get started, strip it
down
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12. Bare Essentials
Work to be done
Price to be paid
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13. Scope of
Representation
• What you will do
• What you WON’T do (limited
scope)
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14. Unbundled
Representation
• Requires fully informed client
• May have a checklist/menu of what
you will and won’t perform
• Explain (and even have client sign
off on) client’s obligation to
undertake aspects of work (e.g.,
filing corporate papers or
complaint)
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15. Fee Agreements
• Flat Fees
• Refundability
• “Magic language”
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16. Flat Fee Conundrum
• To the trust account?
• Payment at the end?
• Define “as earned” in
fee agreements
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17. • Hypothetical: Flat Samples:
Flat Fee fee is considered
earned on receipt (if permitted under
rules)
• The fee is $X. One third is due and
earned on receipt on Milestone; one
third due on Milestone 2; balance after
Milestone 3, or satisfactory final
resolution of case whichever comes first.
• Or, collect flat fee after work is done (for
smaller matters)
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18. Tip #5: A rose is a rose a rose.
A retainer is a retainer is a retainer whether called
a click wrap or term of service or subscription
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19. Whether you use
subscription
services, coupons
or bidding systems,
you need a
retainer and
reasonable fee
19 provisions apply

20. MAGIC LANGUAGE
•Contingency agreements
(specified percentages)
•Statutory fees
•Attorneys right to attorneys
fees
•Fee splitting
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21. Other 21st Century Considerations
• Outsourcing: can you send work
overseas or out of the firm?
• Document retention: hold old paper
files for HOW long?
• Electronic billing
• Email security
• Third party document retention and use
of cloud
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22. TIP #6: Decide what stays in and what
comes out
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23. • In v. Out
How often can clients call?
• Do you charge for phone, research, travel, etc...and if so how much? Or do you NOT
charge for it (but include in overhead)
• How quickly will you return phone calls?
• What are your office hours?
• Do you want your clients to friend you (Social media)?
• Document retention: hold old paper files for HOW long?
• Are there any federal/state requirements for holding personal information?
• Do you run a green office?
• Have you undertaken added security enhancements?
• Should parents bring kids to meetings? Do you have childcare?
• What’s the cancellationpolicy
• Who handles client complaints?
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24. TIP #7 FORM = SUBSTANCE
• 21st century readers - electronic
• Graphics
• Clean font
• readable layout
• Mobile compatibility
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28. TIP #8: DON’T
FORGET A
SIGNATURE STYLE!
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31. Resources for Retainer Agreement
Design
• Matt Butterick - Typography for
Lawyers (book and website)
• Jacob Nielsen - Web usability -
http://www.useit.com/
• Lisa Solomon, Pixel Persuasion:
Writing for the 21st Century Reader
(online CLE or
legalresearchandwritingpro.com)
• Professional designers (odesk,
elance, local)
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33. TIP #9:
MAKE IT
READ!
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34. • Flesch-Kincaid readability test:
http://flesh.sourceforge.net/; online
readability test (with suggested
improvements)
http://www.online-utility.org/english/readability_te
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35. Sample Fee Agreement from Online
Form Provider
FEE AGREEMENT FOR DEFENSE IN CRIMINAL PROCEEDINGS
THIS AGREEMENT is made and entered into this (date) day of (month, year), by and between the law firm of (your law firm name), hereinafter referred to as “law firm” and (client name(s)), hereina
to as “client(s).”
WITNESSETH:
WHEREAS, the law firm is a limited liability partnership of regular practicing attorneys located in (county, state) and certain members of said law firm represent Defendants in criminal proceedings, a
WHEREAS, the client(s) may be or has/have been charged in the (district, county, state) District Court with the crime of (specific offense), and
WHEREAS, the client(s) is/are desirous of hiring said law firm to prevent the filing of said charges and/or to defend him/her/them on said charges(s).
NOW, THEREFORE, the client(s) and law firm do hereby mutually agree that the law firm shall represent the Defendant in connection with the criminal matters above referred to.
Client(s) agree(s) to pay law firm a retainer fee of $(dollar amount) for representation in connection with the above set forth matters. Said retainer fee $(dollar amount) shall be paid on the (date) day o
year) and $(dollar amount) on the (date) day of each month thereafter until paid in full. That representation shall be provided at the rate of $(dollar amount) per hour with the retainer charged for such
to be the retainer fee as agreed above.
Amounts paid as retainer fee shall be initially deposited in law firm’s trust account, in the client’s name. Client(s) agree(s) that law firm may, on the 10th and 20th day of each month, withdraw from s
and retain as fees an amount commensurate with the work performed to date by law firm on client’s behalf. Client(s) will be provided with a monthly statement of said withdrawals.
Client(s) further agree(s) that in the event said retainer fee has been exhausted prior to the completion of representation that the law firm shall thereafter render a monthly bill for services rendered at th
hourly rate and that the same shall be promptly paid by client. Law firm may withdraw as counsel for client if fees are not promptly paid.
Client(s) further agree(s) to pay the law firm on a monthly basis all out-of-pocket expenses advanced by law firm on client’s behalf. Said funds will not be paid from the funds in the trust account set a
attorney’s fees. Funds for out-of-pocket expenses may be established in a separate trust account for that purpose or paid promptly when billed by law firm on a monthly basis as agreed by the client(s)
firm. Said out-of-pocket expenses shall include but not be limited to copying costs and costs of experts, reports, records, and mileage at the IRS rate.
In the event client(s) desire(s) that law firm withdraw from legal representation or law firm withdraws from said representation and the retainer fee has not been exhausted, the law firm shall be entitle
portion of said retainer fee as shall be commensurate with the work performed to date by law firm for client(s). Any amounts remaining shall be refunded by law firm to client.
__________________________________
(Your law firm name)
By: _______________________________
(Your name)
__________________________________
(Client name) Date
__________________________________ 35
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36. Online Provider Score
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37. 21st Century Retainer Score
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38. Heatmaps
http://uxdesign.smashingmagazine.com/2009/09/24/10-useful-usa
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41. Tip 10:
CarolynElefant.com
Carolyn.elefant@gmail.com
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