Retainer agreements and the “Rule of Practice”
Time is money and this couldn’t more true than when it comes to getting paid for the work you do. In the decision Ross, Barrett & Scott v. Simanic 1997 CarswellNS 347, Justice Moir stated at paragraphs 24:
Lawyers have a duty to establish their retainers with clarity and to reduce the contract to writing. A rule has has developed because of that duty: where there is no written retainer, and there is a conflict in the evidence of the lawyer and the client as to a term of the retention, weight must be given to the version advanced by the client rather than that of the lawyer.
This guiding principal is sometimes referred to as the “rule of practice”. A clear written explanation will help reduce the likelihood of a fee dispute developing or, if one does develop, assist the lawyer with substantiating the fee.
Sample retainer agreement (long)
Sample retainer agreement (short)
Engagement letters or fee agreements?
The RPM program has consistently advocated (strongly!) the need for lawyers to use retainer agreements with their clients. So why aren’t we using them? Retainer agreements (or engagement letters, if you prefer) are more than just establishing how much your client can expect to pay, and should reference the following:
- identity of the lawyer and the client;
- scope of service: what you have been retained to do and what you have not;
- delegation of work;
- withdrawal of termination of services;
- your method of communication;
- file retention and destruction
- a successor lawyer clause;
- fees and rate changes; and
- billing format.
The list is not exhaustive! Engagement letters establish the parameters of the solicitor/client relationship by allowing you to communicate your expectations to your client, and assist in managing theirs.