Crafting an Attorney-Client Agreement

Among your well-written briefs, checklists, witness questions, and timelines, the most important document in your client’s file may be the attorney-client agreement.

By P. Mars Scott, Family Lawyer

Your attorney-client agreement should not only state your fee arrangements with your clients, it should also define your professional relationship with your client – from the scope of your representation, to the duties and responsibilities, to how to maintain confidentiality. With a little bit of forethought, you can place provisions in your agreement that can greatly assist you with client and case management, and possibly avoid malpractice or ethical claims from being filed against you.

The Annotated Model Rules of Professional Conduct does not address written attorney-client agreements. There is no prohibition for you entering into a detailed agreement on all aspects of a client’s case. With people able to learn about the legal system on the internet, today’s sophisticated client appreciates a more detailed explanation of their professional relationship with you.

Define the Scope and Responsibilities

Start your agreement with an explanation of the scope of your representation. State exactly what you’ve agreed to do for them (e.g., ”I agree to represent you in your dissolution action filed in the 1st Judicial District Court of the State of Montana”). State when the engagement starts (“when the agreement is signed and the retainer paid”), and when it ends (“when the engagement is formally resolved and the terms implemented, or pursuant to the Rules of Professional Responsibility”). Make clear what the engagement does not include: an appeal, for example.

The agreement should define your responsibilities. Clients like to see these types of provisions in writing. For instance, you will:

• take all appropriate actions to complete the engagement;
• inform your client about developments in their case;
• promptly respond to a client’s questions;
• keep all information covered by attorney-client privilege confidential – but since that privilege is       not absolute, you may be required to disclose some information under certain circumstances;
• obtain their approval before incurring any major expenses for depositions or investigators; and
• secure their consent before settling their case.

The agreement should also define the client’s responsibilities. For instance, the client must:

• keep you updated on their contact information;
• notify you if they will be away for an extended period of time;
• check for communications from you regularly;
• be truthful;
• provide you with all pertinent information, and inform you of any new developments;
• cooperate with you and your staff;
• appear for appointments, depositions, mediations, and court proceedings;
• obtain independent tax advice (if appropriate);
• pay their bills in a timely manner; and
• treat your office personnel with courtesy and respect.

This last provision can be extremely helpful in managing clients who think problem-solving is based more on strong feelings rather than on a process, and your staff will appreciate the protection.

Managing the Case

Consider provisions for managing the case and decision making. Rule 1.2 of the Model Rules states the lawyer shall abide by the client’s decisions concerning the objectives of representation and that the lawyer must consult with the client regarding the means by which they are to be pursued. The Comment to this Rule notes that a lawyer and client may disagree about the means to be used to accomplish the client’s objective; because of the varied nature of the matters about which a lawyer and client might disagree, and because the actions in question may implicate the interests of a tribunal or other person, the Rule does not prescribe how such disagreements are to be resolved.

Your signed attorney-client agreement could help resolve some of these issues ahead of time. For example, stipulate that you may assign associate counsel, paralegals, legal assistants, and staff at your discretion to assist in the prosecuting of the engagement – or that you will make the final decision to grant continuances, set deadlines, or discuss issues with opposing counsel. These types of provisions can avoid stressful case-management discussions with your clients later on.

Think about explaining certain issues that clients may not be aware of in the agreement. For example, note that attorney-client privilege does not apply to the third parties, so if they discuss their issues with third parties, those parties could be subpoenaed to testify about those discussions; or that if they use their work computer to communicate with you, that communication is not a privileged and it may also violate their company’s policies. Point out that the internet is not secure – especially if they’re using free Wi-Fi – and if they use email or text messaging to communicate with you, they assume the risk. Note that intercepting or reviewing emails intended for another person may violate state and federal laws and that you might not be able to use the information in their case. It’s better to have these types of warnings in writing at the beginning of the case than to put them on a checklist of things to discuss with your client; you could forget to do so, or your client could say they don’t remember the warnings.

Other general provisions to consider include the length of time you will keep their records; that you make no warranty about the outcome of their case; how you will manage their money held in your trust account; and your billing and collection policies.

End the agreement with standard contract provisions for choice of law, severability, time is of the essence, complete and binding agreement, and acknowledgements.

Among your well-written briefs, checklists, witness questions, and timelines, the most important document in your client’s file may be the attorney-client agreement. The formality of the agreement gives your clients confidence that they are working with a professional law firm that takes legal responsibilities seriously, and it gives you a restful night’s sleep because you know that the most important issues in your relationship with your client have been disclosed and agreed upon by both of you.

Mars Scott is the owner and founder of P. Mars Scott, P.C. Law Offices in Missoula, Montana. He has practiced family law for 36 years, is an AAML Fellow, has a Martindale-Hubbell AV Preeminent rating, and is past-president of the Family Law Section of the State Bar of Montana. www.pmarsscott.com

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