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The Art, Science & Ethics of the 21st Century Retainer Agreement

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The legal profession is transitioning to what’s been branded the new normal, but the development of the necessary tools for serving 21st Century clients is lagging far behind.  Sure, the infrastructure that we use to serve clients is changing; lawyers are finally coming up to speed on Cloud Computing, transitioning from desktops to more mobile and cost-effective laptops and ipads and accelerating adoption  of client portals to more efficiently and effectively meet the needs of clients.  But technology advancements, while significant, are also superficial if we don’t adapt the way we practice law to the needs of today’s clients.

Of course, there’s also lots of big-picture, blue-skying at various blogs about what lawyers need to change.  The ABA Journal has an ongoing feature on the New Normal authored by various high-profile thought leaders, and I’ve mused on various futuristic topics here at MyShingle.  But absent from these conversations offering the 30,000-foot blueprints are the nuts-and-boltsy changes that we need to make the shift, specifically, developing new ways of analysis that add order to information overload, creating documents that are easily read and understood by today’s diminished attention-span and fast-paced consumers or developing simple to use, standardized metrics for setting alternative fees.

Two of my friends and colleagues are doing some of the “grunt” work on this new frontier.  Ken Adams at Koncision painstakingly crafts exquisitely high-end templates for use in automated contract assembly, while Lisa Solomon teaches a program entitled Pixel Persuasion: Legal Writing for the Twenty-First Century.  And now, it’s my turn to jump in  with my own offering, initially unrolled at the ISBA Solo/Small Firm Conference:  The Art, Science and Ethics of the 21st Century Retainer Agreement.

It’s no secret that today’s retainer agreements haven’t kept pace with the times.  Few of them reflect the realities of today’s practice, such as use of outsourcing and offshoring, alternative billing and electronic document storage and communication.  Moreover, retainers are written in legalese, often long and bulky and incomprehensible to today’s consumers.   Still, that’s not the case everywhere; a few years back, Sam Glover at Lawyerist offered a  shortened-version of the retainer agreement.  Embedded above is one that I threw together that doesn’t just streamline the terms but attempts to account for new developments like outsourcing and digital documents while reflecting emerging concepts of form design.

The retainer embedded here is just a mock-up sample.  In a few weeks, I’ll be unveiling a full-blown webinar on the Art, Science & Ethics of the 21st Century Retainer Agreement.  The webinar will consist of a presentation, along with an ebook collection of sample retainer agreements along with clauses and phrases, citations to ethics rules and opinions – and, as a bonus, forms for outsourcing arrangements, options for mobile signature, vendor agreements and more.  Right now, I’m trying to get a sense of the interest level in this product – so if it sounds like something that might interest you, please fill out the form below.  You’ll receive a copy of a short-version of my presentation on the 21st Century Retainer just for entering your name.


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  • Ethics-wise, I think it is hard to deviate from legalese, particularly when a state bar posts model agreements that contain what the general public considers legalese.  We do keep up with the evolution of technology, such as including the use and risks of electronic storage and transmission of sensitive data (the suggested model language from the ABA on this is really, really long btw.)  But as one person high up in the food chain at the California State Bar said at a CLE recently, it’s all well and good to put such updated provisions in there, but you still cannot contract away your liability.

  • myshingle

    That is a good point. I have been wanting to dissect the California agreement for a while because it is one that had lots of mandatory requirements. I’ll be covering more state specific issues in the webinar – and I hope it’s clear that this template shouldn’t be used without running an ethics check first

  • I’d agree with Mr. Curl. In New York, failure to include required elements in your retainer agreement can result in the court refusing to enforce your contractual right to be paid.

  • Linda Albert

    for such an informative article and the extensive explanation, it’s been very
    useful.  Agreement Templates

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