Retainer Agreements Can Help Avoid Malpractice Claims

April 12, 2024

Steve Schwartz

By Steven H. Schwartz

As published in the April 2024 edition of Missouri Lawyers Weekly

A well-drafted retainer agreement can reduce your chances of being sued for legal malpractice or make such a claim easier to defend. A good retainer agreement sets forth the responsibilities and expectations of both the client and the lawyer. Here is a non-exhaustive list of things you should consider including in the agreement:

Client Identity: It is important to specify in the retainer agreement who the lawyer is representing. For example, is the lawyer representing the entity (e.g., corporation, partnership) or the individual, or both? Lawyers must be mindful of who they represent so the lawyer can manage the attorney-client privilege, protect client confidentiality, and avoid conflicts of interest.

Scope of Representation: A lawyer should always specify in the retainer agreement the scope of the lawyer’s representation of the client. If the lawyer is retained to handle a specific dispute or lawsuit, the retainer agreement should so specify. If this is not done, the parties’ expectations may not match. For example, if a lawyer is hired to file a workers’ compensation claim for a client, are they also responsible for pursuing any civil suit against a tortfeasor who is not the employer? If a lawyer is retained to handle a divorce for a client, are they also responsible for filing any tort claims (e.g., assault and battery) that may be available against the other spouse? By limiting the lawyers’ responsibility in the retainer agreement, the lawyer may avoid being sued for failing to handle matters outside of the lawyers’ scope of representation.

Client’s Responsibilities: The agreement should set forth the clients’ responsibilities such as providing timely information and responding to requests.

Termination of the Relationship: The agreement should state that the client has a right to terminate the lawyer at any time. The agreement should also state the conditions under which the lawyer has a right to terminate the agreement — e.g., for non-payment of fees, or if the client refuses to follow the lawyers’ advice or fails to communicate with the lawyer. The agreement should set forth the obligations that the lawyer and client will have to each other upon termination. For example, it should state that, upon termination, the client is obligated to pay all unpaid fees and expenses, and it should state whether the lawyer is going to maintain an attorneys’ fee lien on the case.

A retainer agreement is just one tool that can help avoid disputes between a lawyer and a client.

Steven Schwartz is a principal at Brown & James in St. Louis who has defended lawyers in legal malpractice cases, malicious prosecution cases and ethics complaints for more than 30 years. He can be reached at sschwartz@bjpc.com. The views expressed in this article are not intended to be taken as legal advice.