Shattered condo balconies What to do when glass breaks on a building

Shattered condo balconies What to do when glass breaks on a building

December 31, 2007

A retainer agreement does not need to be a lengthy or overly complicated document, but it does need to clearly set out the terms of engagement between lawyer and client, says Toronto litigator Jonathan Miller.

The Shibley Righton LLP litigation associate says while a retainer agreement is not terribly different from other types of contracts, it's key to define what the relationship is between the two parties and to set out the obligations of both parties.

He says the importance of a retainer agreement is really demonstrated when there is a breakdown in the lawyer-client relationship or in situations where the client wants to have the lawyer’s account assessed.

"This allows the lawyer and client or the assessor to review the written terms of the relationship," he says. "Ultimately, it is a simple way to minimize risk to both the lawyer and client when there is a discrepancy between them."

The retainer agreement can include anything from the scope of what the lawyer is being retained to do, to who is going to work on the file, to what kind of rates the client can expect to pay, Miller tells AdvocateDaily.com.

He adds that it may be prudent to set out issues regarding accounts, such as payment terms, in the retainer.

Another issue worth detailing in the agreement, he says, would be the terms on which the lawyer can terminate his or her representation of the client.

“It doesn’t have to set out an exhaustive list but should give some awareness to the client that it’s a two-way street,” he says. “They need to cooperate with the lawyer as much as the lawyer needs to co-operate with them to proceed with their file. I think it’s important to do the converse as well, and include something to let the client know it’s within their rights to terminate the lawyer-client relationship at any time upon reasonable notice to the lawyer.”

A retainer agreement should set out who will have carriage of the file — presumably this would be the lawyer sitting down and discussing the agreement with the client.

Miller says if it’s anticipated that a mix of senior counsel and associates or articling students will work on a file, it’s key to address the different hourly rates a client may be charged.

“In doing so, it’s advisable to say where the work is appropriate, it will be handled by a student or an associate and include the hourly rate the client would expect to pay for an associate’s work,” he tells the online legal publication.

It is also important to address any kind of disbursements that are associated with the file in the retainer agreement. For example, the cost of printing, copying, couriering, filing fees, etc.

“The agreement should set out whether those costs are going to be included in the account or if it’s something that is going to be paid for by the client,” he notes.

If at any point during the lawyer-client relationship, the terms or scope change significantly, it may be worth revisiting the retainer agreement, he says.

“If, for example, another lawyer is going to take carriage of the file, you may want to have a discussion and have the client sign off on the change in lawyer — particularly if there is going to be a change in fees that are going to be associated with the change,” Miller says.

When meeting with a client to discuss the retainer agreement, Miller says this is an ideal time to discuss the best method of communication between lawyer and client going forward.

“While it doesn't need to be included in the retainer agreement, it is an appropriate time to set out expectations the client can have in terms of updates, such as whether it’s going to be letters or emails back and forth, or telephone calls and emails,” he says.