My husband recently started a new position at a technology company that, like many others, eats its own dogfood, i.e., it uses the product that it makes. For lawyers, our dogfood is our advice to our clients. But how many lawyers “eat own dogfood” when we draft retainer agreements for our clients?
This article, NY Panel Finds Fee Clause Violates Public Policy (law.com – 10/12/06) describes the decision in Ween v. Dow, a case that came about because the lawyer who drafted the retainer agreement with his client didn’t eat his own dogfood. On its face, Ween seems like a run of the mill collection action by an attorney against his former client for a $74,000 balance of attorneys fees. But the client opposed the collection motion, arguing that the fees were unreasonable. Further, the client challenged the attorney’s claim for fees in connection with the collection action, arguing that the provision in the retainer agreement that provided for collection of fees violated public policy.
The court deferred action on the reasonableness of the fees, finding
that sufficient issues of fact justified denial of summary judgment.
But the court attacked the provision of the retainer agreement allowing
the lawyer to recover fees for a collection action against the client. From the article:
In this matter, we find … the very nature of
the provision … to be unfair and unreasonable,” Nardelli wrote,
noting that there was no similar provision for the client to possibly
recover attorney fees from the lawyer in the event of a successful fee
challenge. “Aside from its lack of mutuality,” the judge continued, “the
clause, even if not so designed, has the distinct potential for
silencing a client’s complaint about fees for fear of retaliation for
the nonpayment of even unreasonable fees.”
Virtually no attorney would advise a client to enter into a contract
where one side could recover fees for collection actions but the other
could not. Yet when it comes to their own agreements with clients,
these same attorneys reject the same advice that they’d give to their
clients in any other circumstance, and draft provisions that favor one
side – the attorney. (As an example, a reciprocal provision in a retainer agreement would
permit clients to recover attorneys fees in the event that the client
sues the attorney fo a refund, alleging that the attorney’s fees were
unreasonable or in violation of applicable ethical rules).
To my mind, the attorney’s failure to treat a client in an agreement
with him the same way as he would if representing the client against a
third party ticked the judge off, causing him to invoke the eloquence
of a Renaissance philosopher:
Sir Francis Bacon, in commenting on the essence of the attorney-client
relationship, stated that ” [t]he greatest Trust, between Man and Man,
is the Trust of Giving Counsell. For in other Confidences, Men commit
the parts of life; their Lands, their Goods, their Children, their
Credit, some particular Affaire: But to such, as they make their
Counsellors, they commit the whole: By how much the more, they are
obligated to all Faith and integrity'”
The quote is one that all of us lawyers should remember, but the judge
needn’t have gone back so far in history. It would have been enough to
tell this lawyer to eat his own dogfood. Are you eating yours?