- A court may be reluctant to interpret the terms of the retainer narrowly unless there is clear evidence this was agreed to by the client.
- Whether your retainer agreement is a separate document or contained within your costs agreement, it should be the best evidence of the extent of your retainer.
- Where you agree to act only on a narrow aspect of a matter, ensure this is clearly documented. Documenting what is not within the retainer can be just as important as documenting what is in the retainer.
- When instructions in a case evolve beyond what was originally anticipated when you were first retained, revise the retainer agreement and confirm this with the client.
Solicitors are rarely sued for ‘getting the law wrong’. Instead, the root cause of the claim is more likely to involve a failure in communication. In many cases, this is caused by misalignment between the solicitor’s understanding of his/her retainer and the client’s expectations.
The retainer agreement is the best evidence of the parties’ intention and the client’s instructions at the time the scope of the work was agreed to between the solicitor and the client. Careful drafting of the retainer can assist in minimising the risk of a professional negligence claim. The retainer can be a separate document but often the retainer agreement can be found within the body of the cost agreement. While a solicitor is not obliged to provide a cost agreement in matters where fees are less than $750, it is good practice to always have a retainer agreement, even for ‘low fee’ matters.
Solicitors can be exposed when acting in cases involving low fees, as there can be a tendency to cut corners with documentation. Where there is no written retainer agreement there may be no contemporaneous evidence of the instructions received by the solicitor and any agreed limits on the scope of the solicitor’s work.