Part of my work involves the drafting of retainers. These can be conditional fee agreements. These can be damages based agreements. They might include discounted conditional fee agreements. They might include collective conditional fee agreements. The retainer may not be for contentious work at all and instead be a non contentious business agreement permitted by the Solicitors Act 1974. There are many different ways to structure an agreement where a solicitor’s costs are contingent upon success, providing due thought is applied to the process and the requisite care is taken. Sometimes the waters of enforceability can seem very chill and deep.
In addition to the retainer, or rather as part of it, I also draft client care letters. Although these do form part of a retainer, frequently the terms relating to fees and the payment of costs will form part of a separate agreement, perhaps falling into one of the categories noted above. But often a client care letter has it’s chief importance in relation to some of the other, regulatory requirements that a solicitor is subject to. Often a client care letter will need to be supplemented by a set of terms of business, in order to bring clarity to the client, that the most important terms are in the letter, albeit that the detail may be contained in the small(er) print.
In this respect solicitors should be aware of the Law Society Client Care Guide to Engaging Clients and the Practice Note published by the Law Society entitled Client Information Requirements. Although these documents are voluminous, they provide useful pointers as to both (1) what information should be provided to a client and (2) when that information should be recorded in writing. The latter document also acknowledges the phenomenon that sometimes “less is more”. That is, the more information provided to a client, the less likely that they are to understand it. Although I believe that the best retainer is one that is circa 2000 words long a client care letter could/may usefully, cover the following topics:
Engaging clients
Discuss and agree the service to be provided.
Advise whether the outcome justifies the costs.
Explain what will happen.
Advise on potential complications.
Explain how communication will take place
Email/telephone/video/face to face etc
The name and status of the person dealing with the matter
The person with overall responsibility
Best possible costs advice.
Clear concies and accurate information about likely overall costs.
How charges are calculated.
Whether rates are likely to increase.
Anticipated disbursements.
Potential for liability for an opponent’s costs.
VAT.
Explain billing requirements.
Funding options including Legal Aid, CFA and insurance.
Key information
How to complain.
How to complain to the Legal Ombudsman, the timeframe and how to contact them.
How to challenge or complain about a bill.
How the solicitor is regulated.
Any separate business that they refer clients to and how they are regulated.
In addition consideration must be given to information required by the Provision of Services Regulations 2009 and the data protection legislation. A lot of this detail might usefully be folded away into a set of standard terms of business, which might include:
Terms of Business
Standards of service the client can expect.
Information on professional indemnity insurnace.
How bank accounts will be verified to prevent fraud.
Data protection
Storage of documents.
Confidentiality and disclosure.
Outsourcing of work.
Auditing and vetting of files.
Clauses limiting liability.
The process for terminating the retainer.