Put It in Writing—It will protect you
Four good reasons to enter into a written letter of engagement or a retainer agreement with your client:
- It is most times required by the rules;
- It ensures that there is a meeting of the minds;
- It can help you in your defence against a disciplinary complaint; and
- It is sometimes a prerequisite to getting paid.
Letters of Engagement – 22 NYCRR 1215.1
In most instances, an attorney must enter into a written letter of
engagement with his/her client before commencing representation of that client. The letter of engagement must provide:
- The scope of legal service to be provided;
- An explanation of the attorney’s fees to be charged, expenses, and billing practices;
- Where applicable, the agreement shall include the client’s right to fee arbitration according to Part 137 of the Rules of the Chief Administrator.
Note: If the scope of the representation or the fees to be charged change significantly, the client must be provided with an updated letter of engagement.
Exceptions—22 NYCRR 1215.2
- The fee to be charged is less than $3000;
- The representation is the same as previously rendered to and paid for by the client;
- Domestic relation matters that are governed by Part 1400 of the Joint Rules of the Appellate Divisions;
- The attorney is admitted to practice in another jurisdiction and does not maintain an office in New York. No material portion of the service will be rendered in New York.
Domestic Relation Matters – 22 NYCRR 1400.3
- Attorneys in domestic relation matters must enter written retainer agreements with their clients;
- For actions in the Supreme Court, the signed retainer agreement along with a statement of net worth must be filed with the court;
- If there is a substitution of counsel after the net worth statement has been filed, then a copy of the attorney’s retainer agreement must be filed in 10 days;
- Signed amendments must be filed within 15 days of the signing;
- A duplicate of the filed retainer agreement and any amendments must be provided to the client.
- If the attorney seeks a security interest from the client, the retainer must state under what circumstances the attorney will do so (approval from the court and notice to the adversary is required);
The agreement shall be subject to the provisions governing confidentiality contained in Domestic Relations Law, section 235(1). The agreement shall contain the following information:
- Names and addresses of the parties entering into the agreement
- Nature of the services to be rendered
- Amount of the advance retainer, if any, and what it is intended to cover
- Circumstances under which any portion of the advance retainer may be refunded. Should the attorney withdraw from the case or be discharged prior to the depletion of the advance retainer, the written retainer agreement shall provide how the attorney’s fees and expenses are to be determined, and the remainder of the advance retainer shall be refunded to the client
- Client’s right to cancel the agreement at any time; how the attorney’s fee will be determined and paid should the client discharge the attorney at any time during the course of the representation;
- How the attorney will be paid through the conclusion of the case after the retainer is depleted; whether the client may be asked to pay another lump sum;
- Hourly rate of each person whose time may be charged to the client; any out–of–pocket disbursements for which the client will be required to reimburse the attorney. Any changes in such rates or fees shall be incorporated into a written agreement constituting an amendment to the original agreement, which must be signed by the client before it may take effect;
- Any clause providing for a fee in addition to the agreed– upon rate, such as a reasonable minimum fee clause, must be defined in plain language and set forth the circumstances under which such fee may be incurred and how it will be calculated.
- Frequency of itemized billing, which shall be at least every 60 days; the client may not be charged for time spent in discussion of the bills received;
- Client’s right to be provided with copies of correspondence and documents relating to the case, and to be kept apprised of the status of the case;
- Whether and under what circumstances the attorney might seek a security interest from the client, which can be obtained only upon court approval and on notice to the adversary;
- Under what circumstances the attorney might seek to withdraw from the case for nonpayment of fees, and the attorney’s right to seek a charging lien from the court.
- Should a dispute arise concerning the attorney’s fee, the client may seek arbitration; the attorney shall provide information concerning fee arbitration in the event of such dispute or upon the client’s request.
22 CRR-NY 1400.3
Note: Failure to comply with 22 NYCRR 1400.3 will preclude you from recovering unpaid fees. See, e.g., Bishop v. Bishop, 295 AD2d 382 (2d Dept, 2010).
RULE 1.5 (d)(5)(ii)
An attorney must not charge or collect a fee in a domestic relation matter if the client and the attorney have not signed a written retainer. See, e.g., Matter of Rosenkrantz, 305 AD2d 13 (1st Dept, 2003) (an attorney is suspended for six months for, inter alia, failing to enter into retainer agreements in domestic relation matters)
PERSONAL INJURY, PROPERTY DAMAGE AND WRONGFUL DEATH CLIAMS
Retainer Agreements to be filed with the Office of Court Administration 22 NYCRR 603.7(a) and 691.20(a)
- Applicable to attorneys practising in the First and Second Judicial Departments;
- Retainer agreements are to be filed within 30 days with the Office of Court Administration;
- Attorneys retained by another attorney on a contingency basis as a trial or appellate counsel or to otherwise assist in the representation shall file such retainer within 15 days with the Office of Court Administration;
- The name of the attorney cannot be left blank at the time the client executes the retainer;
- Filing of retainer agreement is a condition precedent to receipt of fees. See, e.g., Giano v. Loannou, 78 AD3d 768 (2d Dept, 2010); Rabinowitz v. Cousins, 219 AD2d 487 (1st Dept, 1995).
Note: Attorneys who fail to comply will 22 NYCRR 603.7 and 691.20 are often disciplined.
See, e.g., Matter of Loannou, 89 AD3d 245 (1st Dept, 2011) (an attorney is suspended for three months for, inter alia, failing to file retainer statements with the OCA in 59 matters); Matter of Kronegold, 29 AD3d 236 (2d Dept, 2006) (an attorney is suspended for two years for, inter alia, failing to timely file retainer agreements with OCA in more than 70 personal injury matters over six years).
RULE 1.5 (d)(4)
Never include a Nonrefundable retainer clause in your retainer agreement.
Whittingham Law is a Legal Ethics and Professional Responsibility Firm serving lawyers and judges in the New York City.