A retainer agreement is a contract between you and your lawyer detailing your respective rights and responsibilities. The retainer is a formal contract and, as such, will guide any disputes between the parties. This means you should take it as seriously as any other contract for a serious amount of money (such as buying a house or a car). The problem is that most people are not in a very good position to understand or negotiate a contract. This post will try to give you some pointers.
DO I NEED TO RETAIN A LAWYER?
The alternative is to go “pro per” or “pro se“, which means you represent yourself. Over 50% of people represent themselves in family court. I would not normally advise self-representation in a contested case (although I represented myself for about 6 months in my own 2 year case as I gained experience in the law). I was lucky, however, to find a very experienced paralegal, who was able to draft my legal documents for around $100 per hour (much less than the $250-$500 charged by lawyers) but remember that paralegals cannot give you legal advice.
A halfway step is to consider hiring a lawyer in an “unbundled” capacity. This means that you will do certain task and your lawyer will do other (perhaps more complex) tasks. An unbundled retainer agreement is basically the same as a normal retainer agreement except it will limit your lawyer’s responsibilities in the case. Your lawyer will still need to send a notice to the court when he withdraws (although the judge may not require a hearing). Opposing lawyers do not like dealing with unbundled lawyers because they don’t know who to communicate with (because they are only meant to communicate with your lawyer if you have one).
I have also attempted to negotiate a fixed fee agreement with one of my lawyers but it did not work out very well because the opposing lawyer pulled all sorts of dirty tricks to waste my lawyer’s time thus making the fixed fee a very unattractive proposition amd leading to his withdrawal from my case when he figured his billable hours on the case exceeded the fee he had received.
Most lawyers also require a retainer fee deposit at the time of signing the retainer. I have been asked for deposits ranging from $1,000 to $15,000 (for the same case). Generally, the more expensive the lawyer the higher the deposit required. But, all deposit amounts are negotiable – don’t be afraid to ask to put a smaller deposit down.
Lawyers like fee deposits -they get your money in advance (which they are supposed to place in a trust fund so it doesn’t get mixed up with the lawyer’s money). The great thing (for lawyers) is that they get to transfer funds everytime they bill you – even if they make a mistake! A fee dispute may take six-twelve months to resolve – and the whole time they have your money.
THE PROBLEM WITH RETAINER AGREEMENTS
Once you sign a retainer agreement, the other side’s lawyer cannot talk to you – only to your lawyer. You cannot talk to the judge without the judge’s permission. You cannot switch lawyers or represent yourself until your retained lawyer has been given permission by the judge to withdraw. The judge has to believe you are competent to represent yourself – and will usually warn you that “a lawyer who represents himself has a fool for a client”. This is allegedly to protect you from exploitation by the other side. In practice, it allows a lawyer you may not like or even want to keep billing you for their services! It can take 1-2 months to get a hearing before a judge to allow withdrawal.
Your lawyer will also want you to top up your deposit as it gets depleted. This can serve as an early warning sign that you cannot pay your bill. For instance, the retainer agreement might state that your deposit must stay above $5,000 and you have 30 days to deposit new funds once it drops below that amount.
Most retainer agreements will focus on:
1) The scope of the representation and duties owed by the lawyer to the client
2) Amount of Fee Deposit
3) Legal Fees – amount you will be charged for legal services (usually per hour)
4) Billing information
Things to Watch Out For
Retainer agreements are usually strongly written in the lawyer’s favor (suprise, surprise). Beware the lawyer that charges a minumum time period (usually 10-15 minutes) for anything to do with your case – even reading a one-line email or dropping off a document to the office next door! At $300 per hour, that’s $50 for taking 10 seconds to read an email. One of my lawyers routinely CCed my emails to 3 other people in the office (who then all charged me for reading the email)! If I had my way, I would insist that:
a) lawyers charge clerical rates for clerical work (e.g. $30 per hour instead of $300), and:
b) certain tasks (such as reading emails) should attract no charge unless they are responded to.
c) ideally you should not have to pay for mistakes, errors, and rework.
Note, that many lawyers will refuse to alter their boilerplate agreement. Be prepared to keep looking.
Also, many lawyers put a clause in the retainer that allows them to hold your file when they withdraw unless you are completely paid up. One way around this is to KEEP COPIES OF ALL PAPERWORK TO AND FROM YOUR LAWYER.
The Nevada Rules of Professional Conduct allow a client a right to set objectives (like ‘I want to get a divorce’ or ‘I want to settle this case’) but allows their lawyer the right to choose the legal tactics to reach those objectives. Lawyers are supposed to consult with their clients on tactics but ultimately they can change tactics whenever they want. In my experience, they are likely to try and run up as many billable hours as they possibly can. Lawyers are supposed to act in your best interest but it is very difficult to sue or discipline an attorney who deliberately delays your case. My advice is to weigh the benefits of finding a new attorney against the cost and delay of waiting for your current attorney to withdraw.
1) Don’t try to fight a contested divorce without a good attorney
2) You can save money by writing an ‘unbundled’ retainer agreement or using a paralegal if your case is simple or you have some experience of the law
3) Once you retain a lawyer you can no longer speak to the other party’s lawyer or to the judge
4) A retained lawyer cannot withdraw without the court’s permission (which can take weeks)
5) Lawyers like large fee deposits
6) Watch out for dirty tricks and hidden assumptions in your retainer agreement