The Retainer Letter As a Walk Down Memory Lane

I may not be a contract aficionado like Ken Adams, but I love a good retainer agreement.  Though  clean, crisp language and brevity makes me swoon as much as any other lawyer, my affinity for retainer agreements reaches far deeper than the surface:  quite simply, I’m a sucker for the stories behind the the whereas clauses.

The search terms “retainer agreement” and “form” draw more traffic to this site than nearly any other.  And while I gladly accomodate these inquiries, a retainer agreement, done right, is far more than just a form or a template:  it’s a living, breathing, ever-evolving document that reflects our personal history as lawyers.

Just as paging through a photo album triggers old memories, so too does a skim through a retainer letter.   Spend a little time with some  old-time lawyers and ask them to go through their retainer agreements with you and you’ll see what I mean:

Ah, yes – that’s the withdrawal clause that I added after that nice little old lady who promised that she was good for the money wouldn’t pay me and I couldn’t get out of the case.

Mmm, I remember that.  I came up with the provision that gives people a discount if they pay in full upfront after I was nearly evicted after I couldn’t make rent for the third month in a row – even though I had $10k in outstanding accounts.

Gosh, I don’t recall exactly where that section on conflicts waiver came in – I must have lifted it from the agreement that we used when I was at biglaw.

Ugh, that’s the provision that I had to add to comply with the D.C. Bar’s Legal Ethics Opinion 355 on flat fees after that annoying decision in In Re Mance that prohibits treatment of flat fees as earned on receipt.

We call it the “practice” of law because in many ways, law is a craft that we never perfect.   Yet over time, we improve and ripen with experience; becoming a little wiser, a little savvier and also, sadly, a little more jaded.   Our retainer agreements document our transformation, reminding us of just how far we’ve come and — each time they fall short and necessitate another change — of how far we still have to go.

Now it’s your turn:  share some of the clauses that you include in your retainer agreement in the comments below — and more importantly, the stories behind them.

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