Retainer Fees and Agreements
Every time an attorney undertakes representation of a client in an adoption, there should be a written fee agreement. The fee agreement protects the client by providing an exact description of what professional services to expect, how much those services will cost and how payment will be arranged. Whether the matter is accepted on a hourly or flat fee basis, certain principles should always be addressed.
Retainers and Fee Agreements for Adoptive Parent Attorney
The Agreement for Adoptive Parents should:
o Always be in writing
o Clearly state the matter for which retainer is accepted
o Define the parameters of representation, and the attorney’s duties under the agreement
o Describe how the attorney bills
• If the agreement is based on hourly fees, then the rate per hour (for attorney, paralegal or assistant), if the rate is subject to change, the minimal increment of hourly rate that will be billed, frequency of invoicing, how bill will be sent (and request for authorization to send bill electronically, if applicable)
• If the agreement is based on a flat fee, the exact amount of the fee, the attorney’s exact responsibilities under the agreement, and whether there is expectation of further fee under certain circumstances. Expenses should be, to the extent practical and possible, estimated and described, and should be separately outlined on any bill.
o Note that fees are held in attorney escrow account until they are earned and, for hourly rate matters, both earned and invoiced. These accounts are non-interest bearing.
o State the amount of the retainer fee.
o Refund policies
• For unearned monies, refund should always be available, and the agreement should state under what circumstances a refund is due the client. When a flat fee has been paid, attorney should provide a framework for return of unearned fees. For hourly rate matters, attorney should only bill for work that has been done. In both circumstances, unearned money should remain in attorney trust account.
o Contain a statement that no retainer fees are earned upon receipt, and that no unearned amounts are nonrefundable.
o State who the attorney represents, and indicate that attorney will only advise the client and not any other party.
o Indicate that any additional work must be authorized by the client
o Address potential conflict of interest issues and what happens if they arise, and state that such conflicts can be avoided if each client parent has a separate attorney. The clients may, however, agree to proceed with joint representation.
o Acknowledge that client may terminate the relationship with the attorney at any time, and any unearned funds would be returned to client.
o State that any retainer amount may have to be replenished if funds are depleted or further work requested by client.
• The agreement should be signed by all parties.
• The attorney’s representation commences when the signed retainer has been returned with the requested retainer fee.
Representation of Birth Parents
Birth Parent Attorney Fee Agreements with Adoptive Parents
Adoptive parents will generally pay the legal fees for representation of the birth parent or parents. The adoptive parents should expect a fee agreement from the birth parent’s lawyer, and it should contain all of the information about charges that would ordinarily be in any fee agreement. Additionally, it should state that the birth parent attorney will only represent the birth parent(s), will not offer advice to the adoptive parents, and will establish the attorney-client relationship with the expectant parent, not the adoptive parent, even though they will pay the fees.
Retainer Agreements with Birth Parent Clients
Counsel for the birth parent should also have a written retainer agreement with the client birth parent. The Agreement for birth parents should:
o Always be in writing
o State the matter for which representation is accepted.
o Define who the client is.
o Define the parameters of representation, and the attorney’s duties under the agreement.
o If both birth parents are represented by the same attorney, the agreement should address potential conflict of interest issues and what happens if they arise, and state that such conflicts can be avoided if each birth parent has a separate attorney. The clients may agree to proceed with joint representation, but only if they are in agreement about the adoption plans.
o Address the potential for conflict when another party pays for the client’s legal representation, and should contain an explanation that attorney’s duties are just to the client, regardless of who pays the fee, and allow the client agree to representation under that circumstance, or have the option for client to pay independently.
o If an inter-state adoption, (where the adoption will be finalized in a state where the birth parents’ attorney does not practice), a statement that the attorney does not practice in the other state, and the attorney will make necessary accommodations to reliably convey accurate information about the other state’s laws and procedures.
o Allow the client to terminate the attorney-client relationship.
o Be signed by the client.
o Copy provided to birth parent client.
A clear, written understanding between the attorney and the client allows for better planning, prevents misunderstandings and documents the parties’ intentions and responsibilities. It is a necessary element of the attorney-client relationship and should be expected in representation for adoption.