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On Balance

Small Matters: I Never Said I Would Do That

By Megan Zavieh

In some high-volume practices, a typical engagement can be very small. Some solo lawyers make a practice out of hundreds of single-hour consultations. For lawyers in these consultation-heavy practices, it should be routine to have clients sign a simple engagement agreement that clearly lays out the limited nature of the representation.

In practices where larger engagements are the norm, though, lawyers may not even think to have retainer agreements in very small matters. Not having one could be a costly mistake, regardless of practice size.

Must You? Should You?

Typically an engagement that takes only a short amount of time need not have a retainer agreement under the ethics rules. In California, for example, Business and Professions Code Section 6148 requires a written retainer agreement only in cases where fees are expected to exceed $1,000.

However, the lack of an ethics requirement for an engagement agreement does not mean that you should skip having one. A written agreement spelling out exactly what you are agreeing to do for any client is highly recommended, and all the more in these small matters. If you end up facing an ethics complaint from a client in a one-hour matter, it is a foregone conclusion that you will spend more money and time defending yourself than you ever earned from representing that client.

Forgotten But Not Gone

Short engagements are easy to forget, and that is a large part of the problem when it comes to ethics complaints. A simple consultation may yield a page of notes, if that, and probably no other documents. Perhaps you made a copy of a traffic ticket or short contract about which the client had a question. But it is highly unlikely that you will have any sort of substantive file on the case. Your memory will probably have about as much space devoted to the matter. Have someone ask about a consultation you did last year, and the client’s name may not even sound familiar.

Good luck defending an ethics charge with much gusto when you have virtually nothing to go on.

By Way of Example

Consider this scenario. Your work is general civil litigation and basic criminal defense. You receive a call from someone who was issued a traffic citation, who asks you to meet for a consultation. You do, receive a small payment for your time, and give the client basic information about the process of fighting a traffic ticket and advice on how to fight the charges. You explain the court process, the deadline to resolve the ticket and send the client on his way to appear in court on his own behalf.

Months later, you receive a call from this client asking why you did not come to court with him. You do not remember the consultation or the client, angering him and baffling you. The next time you hear the client’s name is from the state bar, investigating a complaint against you. The bar alleges you failed to meet your duties to this client. According to the bar, you were supposed to appear in court and try the client’s traffic matter.

How do you defend yourself? You have no recollection of the client, no file on the client, no retainer agreement and no contemporaneous documentation from the engagement. All you have are angry phone calls and perhaps emails from the time just before the client complained to the bar. You find yourself in a classic game of attorney said/client said.

The Agreement to the Rescue

Had you entered into a simple engagement agreement with the client when you met to consult, you would likely be saved from a massive headache and thousands of dollars in defense costs. The agreement would explain that you were retained for a consultation and nothing beyond that initial meeting. You will definitely consider it worth the trouble when it saves you from ethics charges.

Megan Zavieh focuses her practice exclusively on attorney ethics, providing full and limited scope representation to attorneys facing state bar disciplinary action, and providing guidance to practicing attorneys on questions of legal ethics. She has been representing attorneys facing disciplinary action before the California State Bar since 2009 and is admitted to practice in California, Georgia, New York and New Jersey, as well as in Federal District Court and the U.S. Supreme Court. 

Illustration ©ImageZoo.

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Megan Zavieh Megan Zavieh

Megan Zavieh is the creator and author of “The Playbook: The California Bar Discipline System Practice Guide.” At Zavieh Law, she focuses her practice exclusively on attorney ethics, providing representation to attorneys facing disciplinary action and guidance on questions of legal ethics. Megan is admitted to practice in California, Georgia, New York and New Jersey, as well as in multiple federal courts and the U.S. Supreme Court. Her latest book, “The Modern Lawyer: Ethics and Technology in an Evolving World,” (ABA 2021 ) covers how to run a modern practice while staying in line with current ethics rules. She podcasts on Lawyers Gone Ethical, blogs on ethics at California State Bar Defense and tweets @ZaviehLaw.

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