Behold The Gettysburg Address Of Services Agreements: Can Lawyers Do The Same?
People will little note nor long remember what's in your retainer agreement.
Seven score and fourteen years ago, Abraham Lincoln managed in a trim 274 words to pay homage to the soldiers killed on the Gettysburg battlefield and to convey the larger significance of preserving the Union and the principles of self-governance and equality upon which the country was founded.
Yet somehow, most lawyers are unable to undertake the relatively narrow task of engaging a client without a contract between two to twenty times the length of the Gettysburg Address, as evidenced by the agreements here, here and here, which clock in respectively at 593, 1798 and a whopping 4094 words.
It doesn’t need to be this way. Recently, Boing Boing shared a design company’s trimmed down services agreement that’s a scant 119 words in length.
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Now, I know what you’re thinking — an agreement that short can’t possibly shield client against overreaching by the lawyer, or protect lawyers from malpractice claims or losing a fee — which a sound retainer agreement can accomplish.
But a closer review of Segura’s agreement shows that despite its short length, it covers many issues important lawyers. Let’s take a closer look:
You give me the money, I’ll give you creative. I’ll start when the check clears
This opening sentence, with a bit of modification, could easily be modified for a representation agreement. To comply with most ethics rules, the lawyer would need to specify the money to be given (either by including the flat fee, or the applicable hourly rate). And instead of committing to “give you legal,” a retainer agreement might want to provide a bit more detail on the scope of services. As for starting work when the check clears, this is pretty important — yet it’s also a clause that many lawyers fail to include in their engagement agreements.
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Time is money. More Time is more money
This provision conveys to clients that the complexity of a matter is directly proportionate to the cost. Shockingly, many lawyers fail to explain this basic concept to clients — thus leading to client post-invoice complaints that “this bill is for $15,000 and you said it would only be $4000.” In many of these cases, however, the lawyer — in hopes of not scaring a client off with a high estimate — provides a best case scenario estimate but fails to disclose the worst case. At a minimum, a clause like this one may prompt clients to ask a question at the outset along the lines of “when you say, more time is more money, can you give me an idea of how much more money we’re looking at.”
I’ll listen to you. You listen to me. You tell me what you want, I’ll tell you what you need. You want me to be on time, I want you to be on time
I love this provision as it aptly summarizes the ideal lawyer-client relationship — one of mutual respect, but at the same time, one where the lawyer, as the expert, maintains final say over what approach is in the client’s best interest. Again, few traditional representation agreements include this kind of clause.
What you use is yours, what you don’t is mine. I can’t give you stuff I don’t own.
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This provision requires some modification in the lawyer-client context. Whether or not a lawyer makes use of certain research or drafts in a case, if those materials are included in the client file, they become property of the client.
I’ll try not to be an ass, you should do the same. If you want something that’s been done before, use that
The first part of this clause requires some stylistic modification — perhaps substituting “I’ll act ethically, you should do the same.” Similarly, most lawyers would not have a problem with following a strategy that’s been done before; after all, following precedent is what the law is all about. That said, the clause could be modified to read “If you want the results that you’ve heard about from friends, then use their lawyers.”
Pro Bono: If you want your way, you have to pay. If you don’t pay, I have final say.”
Alas, this one needs to be altered as we all know that a client’s inability to pay doesn’t alter the lawyer’s ethics obligations. That said, this infirmity could be cured by amending the final line to state “If you don’t pay, I have the final say over terminating this engagement agreement.”
Honestly, the Segura services agreement pretty much covers the basics of the lawyer-client relationship, and then some. Of course, in recent years, bar associations have proposed more requirements, such as disclosing use of the cloud to clients — though that can be accomplished through a “Law Firm Policies” appendix rather than a clause in the retainer agreement.
Likewise, it’s imperative for clients involved in referral fee or fee sharing arrangements to document and disclose that information to clients or risk losing the fee. But that issue can be handled with a quick phrase stating “When other lawyers and I share the work, we share the fee, but you don’t bear any extra costs.
Finally, the agreement lacks an advance waiver provisions. And frankly, that’s fine with me because I’m not a fan of them anyway and believe that they ought to be used sparingly, as a situation may require and not as a standard clause in every representation agreement.
There’s nothing that gets the attorney-client relationship off on the wrong foot more than a 15-page engagement agreement full of long words, a one page paragraph on the interest rates to be charged in the event of late payments, and a conclusion that advises the client to seek independent counsel to help understand the retainer agreement. Though a short and sweet agreement like the one posted at Boing Boing may have some risks, at least, you won’t risk alienating clients with fancy words and draconian policies and losing their trust before even starting work.
Carolyn Elefant has been blogging about solo and small firm practice at MyShingle.comsince 2002 and operated her firm, the Law Offices of Carolyn Elefant PLLC, even longer than that. She’s also authored a bunch of books on topics like starting a law practice, social media, and 21st century lawyer representation agreements (affiliate links). If you’re really that interested in learning more about Carolyn, just Google her. The Internet never lies, right? You can contact Carolyn by email at [email protected]or follow her on Twitter at @carolynelefant.
