You have asked your friends, looked at websites and finally settled on a lawyer who seems to be a good fit for your case. But before you become a client of that lawyer, you must first retain them.
Unfortunately, retaining a lawyer is not always straightforward. The process involves checking whether the lawyer can take your case and defining the circumstances of your working relationship. The steps below identify the process of retaining a lawyer and some things you should consider.
1. The Prospective Client
Once you connect with a lawyer but before you retain them, you are a prospective client. A “prospective client” is defined as anyone who discloses confidential information to a lawyer for the purposes of retaining the lawyer. A lawyer has a duty to keep confidential the information they receive from a prospective client.
Nevertheless, it is in both your and the lawyer’s best interest to minimize the exchange of confidential information before the lawyer is actually retained. From the would-be client’s perspective, the application and scope of a lawyer’s duty of confidentiality to prospective clients is not clear-cut. For example, if you do not disclose any confidential information, you may not be considered a prospective client. Even if you are a prospective client, any duty of confidentiality that the lawyer owes you may be overridden in certain circumstances.
The lawyer too faces risks by receiving confidential information from prospective clients. In some situations, a lawyer cannot act against a prospective client even if that prospective client does not end up retaining the lawyer.
2. Conflict Check
Before a lawyer is retained, they must perform a conflict check. A conflict check ensures the interests of the prospective client do not conflict with duties the lawyer owes their other clients. The information needed to complete the conflict generally includes:
- Who is the prospective client
- Who, if anyone, is adverse or potentially adverse to the prospective client, and
- What is the general nature of the advice the lawyer will be providing.
If you are not sure whether you need to disclose certain information before you retain the lawyer, it is better to withhold the information.A careful balance needs to be struck here. The lawyer needs enough information to do the conflict check, but not too much information, in case the lawyer is in conflict. Usually, individuals contacting lawyers provide more information than is necessary. If you are not sure whether you need to disclose certain information before you retain the lawyer, it is better to withhold the information. Instead, ask the lawyer whether information of that general type is necessary for the lawyer to complete the conflict check or determine whether they are able to assist you. The lawyer will be in the best position to judge whether that information is needed or if it is better dealt with after they are retained.
3. Engagement Agreement and Retainer
Assume the conflict check comes back clear, and the lawyer is able to assist you. Next, the lawyer and the prospective client will most often enter into a written engagement agreement that outlines both of their responsibilities. A well-drafted engagement agreement will be written in easily understandable language and usually addresses:
- the identity of the client
- the scope of services the lawyer will provide
- the fee structure and billing model
- how the lawyer may communicate with the client, and
- circumstances in which the lawyer may withdraw from representation.
The content and structure of engagement agreements varies widely. For example, certain lawyers have fixed fees while others prefer to charge an hourly rate. The lawyer may also require an up-front monetary retainer to ensure they will receive at least some compensation for the services they perform. There is no required method for paying your lawyer. However, lawyers have ethical responsibilities that may limit their ability to accept creative payment schemes.
The content and structure of engagement agreements varies widely.More recently, engagement agreements have come to address certain technological aspects of the practice of law, such as:
- how your confidential information will be stored (e.g. on which cloud computing storage service and where their servers are located)
- the platforms the lawyer may use to communicate with you (e.g. by email or Zoom).
As a client, you should be comfortable with how the lawyer will manage your confidential information and communicate with you. If you are not, ask the lawyer for other arrangements.
When completing the engagement agreement you may also be required to provide proof of your identity, such as a copy of personal identification or certificate of incorporation. Lawyers are required to collect this information to reduce the risk that their services will be used in fraudulent or illegal activity. Lawyers will ensure that any personal information you provide is treated and stored confidentially.
Having accepted the engagement agreement, you have retained a lawyer. Your lawyer now owes you certain duties, including:
- a duty of competence, which involves the lawyer knowing the substantive law and the general legal principles and procedures for areas in which the lawyer practices, and
- a duty to avoid conflicts of interest, which reflects the lawyer’s loyalty to you as a client.
The most practical benefit of retaining a lawyer is that solicitor-client privilege now protects most communications between you and your lawyer. This means a lawyer cannot disclose these communications without your instructions, except in very limited circumstances. This privilege is absolute in scope and permanent in duration.
Fundamental to an effective lawyer-client relationship is the client providing all honest and relevant information to the lawyer.These are all important benefits of the lawyer-client relationship and good reasons to consider retaining a lawyer. However, you too have a role to play in helping your lawyer to meet their duties. Fundamental to an effective lawyer-client relationship is the client providing all honest and relevant information to the lawyer. Without a full understanding of the client’s situation, even the most skillful lawyer cannot serve the client effectively.
Finding and retaining a lawyer is the first step in an effective lawyer-client relationship. Your legal issue may be urgent. But taking time to assess whether the lawyer is able to assist you and to define how you would like the lawyer to represent you will avoid issues and improve the quality of service the lawyer can provide.