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10 TIPS FOR A TIP TOP RETAINER

AGREEMENT:21st century style!

Carolyn Elefant, MyShingle.com, Carolynelefant.com

MSBA Solo Day Nov. 2012

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Tip 1: A retainer isn’t just any old form, run of the mill agreement

pulled off an online site

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Tip 2: Retainer can’t be static, must evolve with the times.

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What’s changed?

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Today’s Clients•More sophisticated

•Greater access

•More skeptical of lawyers

•Shorter attention spans

•Less patient (want quicker turn around)

•Demand for unbundled services

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Today’s Law Practice

•Larger firms

•Outsourcing

•Electronic billing and documents

•Alternative fee agreements

•Virtual offices and mobility - work on the run

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Tip 3: Think about all 3 elements of the retainer agreement & don’t be afraid to disrupt.

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Quickest, easiest and absolute best

way to cut through the legalese and clarify your retainer….

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RETAINER AGREEMENT

Contract between lawyer and client

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Tip 4: To get started, strip it down

My retainer agreement must be brief!

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Work to be done

Price to be paid

Bare Essentials

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Scope of Representation

•What you will do

•What you WON’T do (limited scope)

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Unbundled Representation

•Requires fully informed client

•May have a checklist/menu of what you will and won’t perform

•Explain (and even have client sign off on) client’s obligation to undertake aspects of work (e.g., filing corporate papers or complaint)

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Fee Agreements

•Flat Fees

•Refundability

•“Magic language”

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Flat Fee Conundrum

•To the trust account?

•Payment at the end?

•Define “as earned” in fee agreements

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Flat Fee Samples:

•Hypothetical: Flat fee is considered earned on receipt (if permitted under rules)

•The fee is $X. One third is due and earned on receipt on Milestone; one third due on Milestone 2; balance after Milestone 3, or satisfactory final resolution of case whichever comes first.

•Or, collect flat fee after work is done (for smaller matters)

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Tip #5: A rose is a rose a rose.

A retainer is a retainer is a retainer whether called a click wrap or term of service or subscription

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Whether you use subscription

services, coupons or bidding

systems, you need a retainer and reasonable fee provisions

apply

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MAGIC LANGUAGE

•Contingency agreements (specified percentages)

•Statutory fees

•Attorneys right to attorneys fees

•Fee splitting

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Other 21st Century Considerations

•Outsourcing: can you send work overseas or out of the firm?

•Document retention: hold old paper files for HOW long?

•Electronic billing

•Email security

•Third party document retention and use of cloud

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TIP #6: Decide what stays in and what comes out

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• How often can clients call?

• Do you charge for phone, research, travel, etc...and if so how much? Or do you NOT charge for it (but include in overhead)

• How quickly will you return phone calls?

• What are your office hours?

• Do you want your clients to friend you (Social media)?

• Document retention: hold old paper files for HOW long?

• Are there any federal/state requirements for holding personal information?

• Do you run a green office?

• Have you undertaken added security enhancements?

• Should parents bring kids to meetings? Do you have childcare?

• What’s the cancellationpolicy

• Who handles client complaints?

In v. Out

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TIP #7 FORM = SUBSTANCE

•21st century readers - electronic

•Graphics

•Clean font

•readable layout

•Mobile compatibility

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TIP #8: DON’T FORGET A

SIGNATURE STYLE!

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Resources for Retainer Agreement Design

•Matt Butterick - Typography for Lawyers (book and website)

•Jacob Nielsen - Web usability - http://www.useit.com/

•Lisa Solomon, Pixel Persuasion: Writing for the 21st Century Reader (online CLE or legalresearchandwritingpro.com)

•Professional designers (odesk, elance, local)

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TIP #9:

MAKE IT

READ!

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•Flesch-Kincaid readability test: http://flesh.sourceforge.net/; online readability test (with suggested improvements) http://www.online-utility.org/english/readability_test_and_improve.jsp

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FEE AGREEMENT FOR DEFENSE IN CRIMINAL PROCEEDINGS

THIS AGREEMENT is made and entered into this (date) day of (month, year), by and between the law firm of (your law firm name), hereinafter referred to as “law firm” and (client name(s)), hereinafter referred to as “client(s).”

WITNESSETH:

WHEREAS, the law firm is a limited liability partnership of regular practicing attorneys located in (county, state) and certain members of said law firm represent Defendants in criminal proceedings, and

WHEREAS, the client(s) may be or has/have been charged in the (district, county, state) District Court with the crime of (specific offense), and

WHEREAS, the client(s) is/are desirous of hiring said law firm to prevent the filing of said charges and/or to defend him/her/them on said charges(s).

NOW, THEREFORE, the client(s) and law firm do hereby mutually agree that the law firm shall represent the Defendant in connection with the criminal matters above referred to.

Client(s) agree(s) to pay law firm a retainer fee of $(dollar amount) for representation in connection with the above set forth matters. Said retainer fee $(dollar amount) shall be paid on the (date) day of (month, year) and $(dollar amount) on the (date) day of each month thereafter until paid in full. That representation shall be provided at the rate of $(dollar amount) per hour with the retainer charged for such representation to be the retainer fee as agreed above.

Amounts paid as retainer fee shall be initially deposited in law firm’s trust account, in the client’s name. Client(s) agree(s) that law firm may, on the 10th and 20th day of each month, withdraw from said account and retain as fees an amount commensurate with the work performed to date by law firm on client’s behalf. Client(s) will be provided with a monthly statement of said withdrawals.

Client(s) further agree(s) that in the event said retainer fee has been exhausted prior to the completion of representation that the law firm shall thereafter render a monthly bill for services rendered at the aforesaid hourly rate and that the same shall be promptly paid by client. Law firm may withdraw as counsel for client if fees are not promptly paid.

Client(s) further agree(s) to pay the law firm on a monthly basis all out-of-pocket expenses advanced by law firm on client’s behalf. Said funds will not be paid from the funds in the trust account set aside for attorney’s fees. Funds for out-of-pocket expenses may be established in a separate trust account for that purpose or paid promptly when billed by law firm on a monthly basis as agreed by the client(s) and the law firm. Said out-of-pocket expenses shall include but not be limited to copying costs and costs of experts, reports, records, and mileage at the IRS rate.

In the event client(s) desire(s) that law firm withdraw from legal representation or law firm withdraws from said representation and the retainer fee has not been exhausted, the law firm shall be entitled to such portion of said retainer fee as shall be commensurate with the work performed to date by law firm for client(s). Any amounts remaining shall be refunded by law firm to client.

__________________________________(Your law firm name)

By: _______________________________(Your name)

__________________________________(Client name) Date

__________________________________(Client name) Date

Sample Fee Agreement from Online Form Provider

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Online Provider Score

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21st Century Retainer Score

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Heatmaps http://uxdesign.smashingmagazine.com/2009/09/24/10-useful-usability-findings-and-guidelines/

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Tip 10:

CarolynElefant.com

Carolyn.elefant@gmail.com