Retainer Agreements and Engagement Letters
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An attorney earns his or her living based
on the time spent on the case, and usually
deserves to be (and insists upon being) paid
promptly. Except in cases financed by unions
or other interested organizations, or in
the rare circumstances where a court appoints
counsel who agrees to act "pro bono"
(as a public service), attorneys commonly
ask for a retainer fee. This is paid in advance,
generally when the client signs the retainer
agreement. Nasty surprises are possible.
The fee contract between an attorney and
client may be called a retainer agreement
or fee letter. Some states require these
to be in writing (even if only the attorney
has the professional expertise to know what
he is drafting) and construe them against
the attorney or use panels of both attorneys
and laymen to interpret them. Others side
with the attorney, sometimes allowing just
his word about the fees he intended to charge.
Attorneys may avoid initial fee discussions
by promises of wanting to start the relationship
of trust on a good footing. Yet if the retainer
agreement refers to a pay increase, when
the client really wants a transfer, a less-ethical
attorney may sometimes choose not to inform
the client about prompt transfer offers without
the pay, or fail to inform the client in
a hostile work environment that a pay increase
would require a resignation or other lost
legal protections.
Partly because of the MSPB's secrecy and
the middle-class status of most federal employees,
lawyers practicing before the MSPB almost
never accept cases on a contingency basis
(depending on a successful trial outcome).
Bar associations may also have lists of attorneys
with reduced fee plans, but that may only
indicate the attorney's inexperience. Unions
may have fee arrangements with certain attorneys,
or underwrite members' legal costs. Other
federal employees must pay up front, which
puts them at a disadvantage. Most federal
district courts (and appellate courts other
than the Federal Circuit) have arrangements
whereby they require attorneys who practice
before them to accept some cases for indigent
clients (try referring to the Equal Access
to Justice Act or pro bono or in forma pauperis at the district
clerk's office to find out the local rule and procedures).
Bills are never pleasant. However, they provide
important information. Attorneys whose fees
are either way above or way below those of
other attorneys, or whose bills lack corroborating
statements showing what they did and how
fast, deserve to be questioned before payment.
Of course, clients who receive bills and
choose not to pay can expect the attorney's
zeal to lessen.
Another common problem involves an attorney
who fails to bill, and then on the eve of
trial or settlement presents a huge bill
and refuses to work further, or to explain
what work he has done or to turn over the
file until he is paid in full. Explicit legal
ethics discussions usually refer to criminal
or divorce cases, although the tactic is
also common in the employment context. The
MSPB has never named or otherwise rebuked
an attorney for using it. Thus, some attorneys
using it may actually charge far more for
negotiating settlements than they would be
granted if their bills were reviewed by a
court.
Sometimes the agency or other employer pays
the employee's attorney's fees. The statutes
permit attorney fee awards only after a successful
trial, which means months and months after
the retaliation occurred and after fees mount
and perhaps the client's name is published
in a public or government database for future
reference checkers to review. The delays
and risk are usually why the attorney asked
for the retainer in the first place. Ethical problems abound, because the attorney is supposed
to advocate his client's interests, not his
own wallet, nor those of the agency. Yet
agencies paying attorneys to counsel their
clients to leave is fairly common, because
no one wants to be fired or demoted as well
as have to pay attorney fees for the privilege.
If an attorney mentions the agency paying
his fees without a trial, the best advice
is either get another attorney, or at least
take notes about the attorney's explanation of the
consequences. Despite the profession's ethical
guidelines, lazy attorneys know malpractice
suits are rare and difficult. Plus, the MSPB
protects such attorneys--never publishing
the names of attorneys missing deadlines,
and generally going out of its way to say
that this had no effect on the client-employee's
case. |
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