Retainer Agreement Retainer agreements.

It is, of course, a very good idea for a lawyer to have a written agreement with the client that sets forth all of the material terms of the representation.

The Mississippi Rules of Professional Conduct, however, only require a written agreement for a contingency fee. See Rule 1.5(c). The contingency fee agreement must cover the following:

– the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal;  and

– litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated.

Upon conclusion of a contingent fee matter, the lawyer must provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

In addition to being sure that the contingency fee agreement includes the required language, be sure that it does not contain any prohibited language.

In Estate of St. Martin v. Hixson , 145 So. 3d 1124 (Miss. 2014), after the client settled his personal injury claim, he filed a complaint against his attorney challenging the validity of the contingency fee agreement. The agreement in question contained these two problematic provisions:

-“No compromise can or will be made without my (our) signature(s) and without the approval and signature of my (our) attorney….”

-“My (Our) attorney may be fired only for negligent handling of my (our) claim or failure to pursue my (our) claim with ordinary legal diligence. In all other cases, my (our) attorney is entitled to a full fee as outlined above for any settlement I (we) receive in the above matter, even though other counsel may be consulted or hired.”

The Supreme Court held both provisions to be unenforceable. This ruling is correct, of course, because the claim belongs to the client (not the lawyer), and the client is always free to settle the case or to change counsel.

The Court did not, however, declare the entire contract to be void. Instead, it simply struck the unenforceable provisions. Compare that with the Fifth Circuit’s decision in Matter of P & E Boat Rentals, Inc., 928 F.2d 662, 664-65 (5th Cir. 1991). There the court (applying Louisiana law) held that no contract that is in conflict with controlling ethical standards should be recognized and enforced by the court.

The post Retainer agreements between lawyer and client appeared first on Panter Law Firm, PLLC.