Lawyer Retainer Agreement Myths

Before Heather Hui-Litwin became a lawyer, she was a client and then, a self-represented litigant.

When Heather was a client, she felt very intimidated by my lawyer.  She assumed that she had no choice but to accept the retainer agreement as is. In other words, the thought of negotiating a retainer agreement with a lawyer never crossed her mind.

Heather’s colleague, James Cooper, a lawyer in Toronto, has recently explained to Heather that this is just not so. In fact, as a client, you have a lot more rights than you expected in your relationship with your lawyer.

Here are some myths James wrote about, in his excellent blog
Common Myths about Legal Retainers

1. “It’s all or nothing”

James explains that you can hire a lawyer on a limited scope basis. As James puts it, this is when you hire a lawyer on a “task by task” basis. This is indeed why the Self-Rep Navigators exist: we are a group of lawyers who offer legal services under limited scope retainers. We get together on a regular basis to discuss the practical aspects of such services.

2. “Lawyers are Retained by the Hour”

Many clients dread the open ended concept of the hourly fee billing.  They believe that they cannot raise any concern with their own lawyer over spiralling costs. They feel that they are at the mercy of their lawyer, and are forced to accept whatever the bill comes to. James reminds us that if you don’t raise your concern, your lawyer may well assume you are fine with the costs.

James puts it as follows:

If the consequent unforeseeable spiralling of hours is an ongoing concern with you, then you must realize your existing power to design and/or change the compensation basis of your retainer agreement as you go forward.  Though your lawyer might propose from the outset that they be compensated by the hour, you are not bound to agree to it.  You are free to suggest that the lawyer provide a fixed fee for certain enumerated tasks, with the lawyer, in such instances, taking on the risk of additional work arising from unforeseen circumstances.

I certainly never knew that I had the option to do so!

3.”Once work on a task commences you cannot stop the clock”

James tells us that this is not true. You are allowed to tell your lawyer to stop work. However, of course, you are obliged to pay for all work that has already completed.

What is even more surprising is that  when you have a lawyer on record on your file, I had assumed you are forbidden to speak to other lawyers on your case. Although technically the Rules of Professional Conduct states that lawyers are allowed to provide second opinions, this always seem to be impractical in many cases.

James explains that retainers are not “exclusive”:

If dissatisfied for any reason, you can unilaterally end the retainer and seek out alternative counsel, with your only obligation being to compensate the lawyer for the time expended on the file up to that point. In all cases, you are not obligated to stick with the lawyer that you have formally retained.  Your lawyer is not like a real estate agent.   Once retained, they do not have exclusive “dibs” to the work on your file.  In the end, whether or not they continue to work on your file at any point really depends on you.

4. “It’s for the lawyer to determine what is billable and what is not”

This is a real eye opener. I always thought a lawyer can dictate what’s billable. I assumed that it’s customary amongst lawyers to bill for every single minute of “work” they do on your file, whether it’s phone calls or emails to you (or anyone).  While I can certainly see the reason why lawyers impose this type of billing (to avoid their clients going on and on), I have also heard complaints from other litigants about how their lawyer drags out phone conversations, much to their distress. It never occurred to me that you can “negotiate a ceiling” to such communications.

Myth 5: “You must sign the lawyer’s standard form retainer agreement”

Again, this is a surprise. I had also assumed I had to sign the retainer, and had no choice but to accept all terms and conditions. James reminds us that this simply is not true.

Myth 6: “The Retainer Agreement must be in Formal and Prescribed Format”

James explains that as long as there is agreement in writing, a retainer is created. In fact an agreement may even be created in social gatherings.

Myth 7: “The Lawyer ‘Owns’ the communications in your file”

I remember wondering about this very question myself when I was a client!

I have heard many litigants express concern to me that because lawyers are seen to belong to a private club “members of the legal profession”, they don’t feel they can trust that their own lawyer is truly acting in their best interest. James suggests asking your lawyer to cc you on all email communications, and include you in conference calls to opposing counsel.

Myth 8: “The Lawyer is the ‘Boss’ of the Solicitor-Client Relationship”

This goes back to the point raised before, that many clients feel intimidated by their lawyers. Clients often assume they should just “listen” to their lawyer, even when they don’t understand the advice, or agree with it.  On the other hand, a lawyer cannot simply act as a “hired gun” and carry out “orders” given by her client when it is not reasonable or legal to do so.

James writes:

..you should never feel bullied by the lawyer’s expertise to take a course of action that you do not feel comfortable with – whether the proposed course of action is to proceed with a lawsuit, to drop it, or to settle.

One last suggestion on hiring lawyers, which is perhaps obvious: you should not procrastinate when you’re looking for a lawyer. When you leave things to the last minute, and you are desperate, you will likely be tempted to agree to any retainer without careful consideration or willingness to enter into any negotiation process.

I recommend that you read James’s article in full, which can be found here:
Common Myths about Legal Retainers

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