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Interview - Jul 25, 2003

“The dynamics of attorney-client relations can become severely disrupted if the lawyer works on a material-placement project on a contingent fee basis.”

picture John J. Tormey III, Esq. is a music and entertainment lawyer with his own practice in New York. In this three-part interview, he talks in great detail about the legal issues artists may encounter during their careers in the music industry. Part 1 deals with topics such as how to value a prospective attorney, methods of payment and the problems inherent to percentage deals, important issues concerning the contracts between clients and lawyers, and more.

DISCLAIMER: Neither this interview nor any part of it is intended to constitute legal advice with respect to any particular situation or fact pattern. Secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies to one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.

How did you start as a music business attorney and what route have you taken through the industry over the years?

I come from a theatrical and show business family. I worked as a musician with a number of bands, and played with some great people. My father is still an actor, working in film and television in New York. In retrospect, I don’t think I ever accepted the possibility that I might end up in any business other than the proverbial family business. So what did I do? I picked out the law school that had what I believed to be the best offerings in copyright and entertainment law; I went to Los Angeles for a spell, the one city with which I knew I needed to be familiar in order to maintain an entertainment law practice; and I studied with some brilliant professors (and fellow students).

One of those professors was an L.A. entertainment lawyer who, among others, was credited for handling the Michael Jackson/Paul McCartney song catalogue acquisition. This professor took me through my first critical analysis of a record contract, among many other practical drafting exercises that helped turn me into an entertainment lawyer. I owe him a huge debt of gratitude, as I do my other mentors along the way. To this day I thank my mentors every chance I get.

In my third and final year of law school, I searched the LEXIS database and figured out the identity of the New York law firm at which I most wanted to work. I was thrilled to get an offer from that firm. Among many other areas of renown, the firm handled the well-known George Harrison “My Sweet Lord/He’s So Fine” music copyright infringement litigation. This topic exactly tracked my academic interest, and obviously appealed to me as a (recently-retired) rock musician. Suddenly I was swept up in the New York court system and the intensity of the practice generally, making court appearances for firm clients on a regular basis.

In other words, I pursued a career as a litigator first, in the belief that this is what lawyers must do. I was right. To this day, I know that a background in litigation is essential to the careful and quality drafting of contractual and other documents. Litigation teaches you what happens to others when their badly drafted documents end up under the hot lights of judicial scrutiny. Better yet, litigation teaches you how to keep your own documents out of court. Litigation teaches you how important it is to stay out of court - how important it is to avoid the oft-futile and always-expensive exercise of shooting reams of paper back and forth between you and the other side. A thoughtful and well-drafted document is your best shot at staying out of court on a business transaction.

Therefore, I evolved into a transactional lawyer. I took positions as Counsel to The Walt Disney Company, and then as Senior Counsel and Senior Litigation Counsel to Miramax Films. But I became most happy with my career path, when I started my own law practice. I now have a general practice, the majority of which consists of entertainment work. The majority of my entertainment work, this month anyway, is comprised of music work. The thing is, these ratios can change, depending upon forces of which I’m not necessarily in control - and I don’t need to be. At any given time I could be handling matters in music, film, TV, radio, publishing, interactive - and a whole host of other types of matters.

I love the variety. It keeps things interesting, it continually broadens experience and ability, and it gives me the opportunity to meet a heck of a lot more people than if I was stuck to an assembly-line-desk extruding the same cookie-cutter deals day-after-day. Unfortunately, many lawyers find themselves victim to the mind-numbing repetition of the latter scenario, which is one of the several reasons why many lawyers are unhappy with their practice and unfortunately with their lives. As for me, I love what I do, and wouldn’t have it any other way.

Do you value your experience as a musician?

Yes, I have been very lucky, but some of my former band mates have been even luckier than me! Those of my band mates and other friends that succeeded in music, had more innate musical talent and more determination to make it as musicians. (I say “determination”, because most if not all sacrificed to get there).

As an actor’s son, on the other hand, by the time I was a young teenager, I was already concerned about how I would make a steady living. Those that have had artists as parents will probably understand. The economics of making a living from your art, the rejections at casting calls, the repetitive stress of touring... well, those types of experiences are a good deal less romantic than they might otherwise seem to non-artists. Because of my upbringing, I was realistic about the economics of art and I think that's what kept me from pursuing a career as a musician. But I applaud the courage of others who do.

I started playing guitar at about age 14 or 15, on an old Kay guitar that I am guessing my Dad probably used when imitating Elvis. I had a few fine guitar teachers. I progressed from a Guild S-60D, to a Dickey-Betts-red Les Paul. I went to a private school called Collegiate on the West Side of Manhattan. I played in a band there with a guy named John Hermann - now known as Jojo Hermann, keyboard player for Widespread Panic. John and I graduated and went on to different colleges.

I went to Harvard and played in a band there with an axe-man named Tom Morello, formerly with Rage Against The Machine and now with Audioslave. At college I also jammed with Alison Brown (of Compass Records and Grammy fame), Don Braden and Avram Fefer (jazz sax-men extraordinaire), and a legion of other talented musicians and good friends. I played in an alternative rock band in Manhattan in the early 1990s. I used to practice guitar anywhere from 6 to 12 hours a day. Needless to say, these days I don’t have that kind of time, because I’m practicing something else - entertainment law.

What particular experiences have contributed significantly to your understanding of the music business?

The most important? My answer to Question #1 above - seeing how much money people end up wasting, when litigating ill-conceived and badly drafted deals that really should have been papered correctly in the first instance.

More recently, a few other things.

First, hearing the complaints from A&R folk, as to how most people (artists and otherwise) mis-approach them with submission material. (Please see the answer to “Do you accept unsolicited material?” in the next part of this interview).

Second, perceiving the disturbing recent trend in the music business, wherein bluster and intimidation are thought to take precedence over quality and diplomacy. I’m an old-fashioned guy. I learn more about a person and their business interests by listening to them than by talking at them.

Third, a story I heard about, which initially had nothing to do with the music business. In the earlier days of the digital age (the 1990s ), a screenwriter tried to e-mail himself his own script, from his L.A. office, to his NY office. The screenplay got picked off. Suddenly, his hot little script that he was ostensibly trying to option or sell on a “first-look” basis, was now posted on the Internet. Whatever “buzz” and economic momentum he had earlier created for this hot new yet-unseen piece, he now completely eviscerated by his own e-mistake.

I’ll leave it to your musician-readership to deduce how this story applies to the music business in 2003. To paraphrase Paul Simon, “I think they’ll know exactly what I am talking about”.

When did you start your practice, how many people work there and who are or have been your clients?

Though I have been practicing law since 1987, I started my own law practice in the late 1990s after my Disney and Miramax gigs. I started alone, and I still work alone. To paraphrase Audioslave, “alone” is the only way I want to work, and is the only way that I can work. It sure makes the law firm partnership meetings a lot easier!

My former employers are public record, although I don’t discuss the identities of my clients.

First, my belief is that the confidentiality of attorney-client communications (or, a bit more in the vernacular, “the privilege”), actually prevents a lawyer from disclosing the names of his or her transactional/advisory clients. That is why, when asked, I have always perceived the client-identity question as a trick question of sorts - whether the questioner knows it at the time or not. Would you want your lawyer to disclose something that you told him/her in confidence? Of course not. Besides, that would be prohibited by law, at least under my conservative interpretation and understanding of the relevant rules governing lawyer conduct.

Second, most of my work is transactional and advisory these days. When a lawyer handles a litigation for a client, the client’s name often becomes introduced into the court record and therefore usually becomes a matter of public record. There is nothing wrong with a Johnny Cochran identifying O.J. Simpson as one of his trial clients in the recent past. However, the matters which I typically handle now, are not in court, are not in the papers, and are not on TV. They are private economic transactions.

Even the fact that a client has come to me for advisory or transactional work, is something that should be presumed private. Sometimes, clients come to me with matters that would be embarrassing if known (e.g., a deal blown by a predecessor), or are otherwise sensitive. If one went to a doctor with a medical problem, one wouldn’t want to read about it in the papers or on the Internet. In this respect, lawyers are like doctors. They maintain client confidentiality. I sure do.

Third, remember that I’m constantly inundated with e-mails, faxes, and phone calls from artists seeking representation. Some are serious, some less so - and it’s often difficult to discern which is the case at the outset. For those in a position like mine, the “Who do you know?” game is one which is oft-abused, not to mention a big time-waster when played repetitively with different people day-after-day. Some others still play it.

For example, at one point, it seemed like there were 10 or 12 firms all claiming to be representing a major female pop star. In point of fact, it was very unlikely that all 10 or 12 firms were handling her work. But after all, what would a new prospective client contacting that firm then do, to verify the firm’s claim - call the pop star on her cell phone while she’s on the tour bus? (If the prospective client had that kind of access, he/she probably wouldn’t need the firm anyway!)

In short, I avoid the “Who do you know?” game. If a client hires me, I want that client-decision to be based upon my abilities, CV, years of practice, and professional reputation - and not upon the ether of primordial schmooze.

Fourth, I think it would be tacky and foolish to use my clients’ identities for my own personal economic gain. And, I don’t think my clients would like that too much, either. My loyalty is to my existing clients, period. It’s obviously more important for me to maintain my valuable relationships - and friendships - with my existing clients, rather than add a few more new clients at the margin.

If an artist wants to surf the client-rosters of music representatives, that artist would be better off talking to non-lawyer agents and non-lawyer managers, instead. Such agents and managers may be under no such similar code of professional conduct prohibiting the disclosure. What the artist should never forget is that all lawyers, including entertainment lawyers, are members of the Bar and officers of the Court, and are ethically bound and legally bound to do the right thing. Lawyers are easily locatable and publicly accountable servants.

Let’s assume that a lawyer is challenged by an artist to take an action prohibited by law or the Canons of Ethics - for example, “Will you include illegal material in a submission package to a label?”; or, “Will you tell me one of your client I.D.’s or client confidences, so I can decide whether or not to give you new work?”. Well, the artist should not be surprised when the lawyer rejects that kind of challenge out-of-hand.

And ironically, that’s exactly what the artist should want - a lawyer who is a lawyer first and an entertainment-type second - a lawyer who follows the rules, the law, and the Canons of Ethics. If the lawyer offers to do otherwise, then it’s time for the artist to find another lawyer.

What areas of entertainment law do you specialise in?

I think that the Bar tends to look askance at lawyers who tout themselves as having “specialties” or “expertise”. I know that I do.

Good lawyers always know that we are accountable to higher authorities, including the Bar, the judiciary, the law, the Disciplinary Rules, and the Canons of Ethics generally. After all, we call it “The Practice”, with an understanding that no individual is bigger than the law itself, and that there is always more to learn.

Yes, I have law practice areas in which I repeatedly dwell, such as music and the various other entertainment topics which I have mentioned in this interview. But a solo practitioner is often called upon to be a generalist - for example, if asked, to help a film director client with a will and estate matter; or, if asked, to help a composer client with a divorce matter. If that lawyer cannot bring at least some of the skills and experience of a generalist to his or her client base... well, that lawyer may not have a client base remaining for very long.

Accordingly, lawyers who self-tout a “specialty” or “expertise” may end up profiling themselves in too limited a fashion. Remember, there is no separate Juris Doctor sheepskin reading “entertainment lawyer”. Rather, we are all lawyers. We are lawyers first. Most of us love variety in our work, and love to attack challenges. I do.

When I am asked what I do and what I have done, I usually point to my Law Practice Statement and CV at I have a general commercial practice, wherein I handle transactions and business-formations, and advise clients. The subject matter areas which I handle include, but are not limited to, music, film, TV, theatre, publishing, interactive, Internet, corporations and LLC’s, and employment work.

What factors should an artist consider when deciding whether to work with an attorney or not?

Some of the factors that an artist should consider; besides, obviously, cost and affordability. First of all, God forbid, does the lawyer already represent the party(ies) on the other end of the same transaction? If so, it could likely be a conflict of interest, and the artist likely wants to cease disclosing any more about that prospective deal to that lawyer! (And remember that the entertainment community and entertainment bar comprise proverbial small worlds). A prospective client’s first question to a lawyer should always be “Do you represent the other party to my prospective deal?”

Also - for how many years has the lawyer been practicing? Does the lawyer have any law firm experience? Does the lawyer have any litigation experience? (This next one is very important but oft-overlooked): Does the lawyer have any experience working within the inside of any entertainment companies, as in-house counsel or otherwise? And finally, is the lawyer presently available, and does the lawyer in fact have the time to devote to the matter in order to handle it properly?

Should certification for entertainment attorneys be introduced?

California has identified certain subject areas for certification, but I don’t recall seeing that entertainment per se has been added to that list. I am admitted to practice law in New York (where I reside), California, and D.C.

My own feeling is that an “entertainment lawyer” certification is probably unnecessary, because most prospective clients are smart enough to ask the right questions of a lawyer in whom they are interested. Want to find out what the lawyer has done? Ask the lawyer for his/her résumé or CV. The prospective client can usually tell if the lawyer has relevant experience.

Beyond that, lawyers are ethically bound and legally bound to make honest disclosures and determinations, regarding what matters fall inside and outside their own practice areas. This is in the lawyer’s own interests, too. A lawyer knowing nothing about immigration law, for example, would likely be making a mistake taking on a fast-moving INS proceeding mid-stream. I can’t say that this type of thing never happens - but it is unlikely to happen.

What resources might one use to find out more about a particular attorney in the U.S.?

There are two important ones that should always be used. These are the same steps that I take when checking out a lawyer whom I don’t already know.

First, make contact with the state bar or other relevant governmental authority wherein the attorney was admitted. Confirm, preferably on paper somehow, that the attorney is admitted to practice law, is in good standing, and has no record of public professional discipline. If looking up a Manhattan-based New York attorney, for example, you could first phone the Office of Court Administration. Then, assuming that the attorney was admitted in the “1st Department” (many Manhattan lawyers were), you could phone the 1st Department and confirm that the lawyer has no record of public professional discipline. Any other jurisdiction or state should have a similar authority, which should be able to provide you this type of information (by phone or otherwise).

Second, access the Martindale-Hubbell lawyer directory. When I myself research a lawyer, I will either phone Martindale-Hubbell (in extreme cases), or else simply access the company’s website. There are also printed editions of the Martindale-Hubbell directory available in libraries and for purchase. Martindale-Hubbell is considered by the Bar to be the foremost authority on lawyer information. Martindale-Hubbell has a tiered rating system whereby lawyers are graded, on their abilities, and on their professional ethics. A peer rating system is used that is quite stringent. The “AV” rating is the prized highest rating, and it is the one that I am fortunate enough to have and maintain.

If someone asks me “Should I work with a lawyer who does not have an AV rating with Martindale-Hubbell?”, I am probably too biased under the circumstances to answer them. But suffice it to say that I believe in the Martindale-Hubbell rating system, and it is one upon which I and many others rely, when researching other lawyers.

If someone asks me (thankfully it's a rare question!) whether he or she should work with a lawyer who has a record of public professional discipline, it would be a situation that would need to be handled with sensitivity and care. I would generally suggest that the questioner carefully and fully investigates, as far as possible, what the actual facts of the disciplinary action were/are; consider (as always) other options for choice of counsel; and never work with any lawyer if they have any remaining doubts about the lawyer’s character once this investigative process concludes.

The whole essence of working with professionals, such as doctors, lawyers, and accountants, is that society has, in essence, pre-screened these people for you. Society has made them publicly-accountable. Their maintenance of their license to practice their craft indeed depends upon same. The whole essence of the societal distinction between professionals and others, is that you can look up a professional’s record. To fail to look up a professional’s record before working with him or her, would be a big mistake - and it is a mistake that people have paid for, dearly, in the past.

An artist pays an attorney either a flat rate, on a time basis or through points on any deals derived from the attorney’s work. Which of these options do you prefer and why?

Essentially there are three bases upon which a lawyer can work:

(A) on a time-and-expense basis, at an hourly rate, out of an advance-paid retainer fee
(B) on a flat-fee basis
(C) on a “contingency”, “contingent fee”, “commission”, “percentage”, “equity”, “points”, or “back-end” basis - otherwise colloquially (and often disparagingly) referred to as “on the come”.

There are also hybrid arrangements that incorporate some or all of the above, and those arrangements are as creative as the lawyers and clients who think them up. Some arrangements by definition don’t apply to some situations - as an example, a criminal defense lawyer couldn’t defend a criminal defendant on a contingent fee basis, for obvious reasons.

In my entertainment and other matters, I only work on a time-and-expense basis, at an hourly rate, out of an advance-paid retainer fee. Being that much of my client roster consists of artists and other creative folk, I maintain flexibility on the numbers on a case-by-case basis. I make every effort to determine numbers that are affordable to a prospective client given their project budget, resources, and fact pattern. I don’t determine those numbers until I first hear what the requested task really is - in the context of a “live” situation in each case.

Flat-fee arrangements with clients, on the other hand, often end up with the lawyer getting burned. But in fairness, the lawyer should not be expected to absorb the risk, inherent in many transactions, that the deal becomes more complicated or takes unexpected turns through no fault of the lawyer’s own.

Contingent fee arrangements raise far too many practical and ethical concerns. The road is littered with bad percentage deals. Why do they raise so many problems?

Well, first, let’s say a music client, a guy who is a lead singer and songwriter in a band, retains a lawyer to shop a CD, on a percentage basis. Let’s say he agrees to pay the lawyer 10% of earnings on some defined basis. That artist is actually betting against himself - betting against his own success. After all, the only situation in which that percentage deal would turn out to be a good one for the artist, is if the lawyer spent 50 hours of shopping time and came up empty - because in that case, the artist would be spared having to multiply 50 hours by the lawyer’s hourly rate and paying it.

On the other hand, consider how horrible a deal it would be for the artist if the lawyer were immediately successful, and on the first submission to a label, the label immediately signed the artist to a huge, long-term and lucrative multi-CD deal! In that latter case, the lawyer may have only spent a few minutes or a few hours of work, but would now be contractually entitled to 10% of this artist’s earnings, perhaps in perpetuity. So, the contingent fee arrangement is great for the artist who ultimately loses, and likely horrible for the artist who ultimately wins. It’s obvious.

I’m therefore very skeptical about a prospective client who approaches me and is immediately willing to bet against himself/herself. And the converse is also true - this person is essentially asking me to bet on them, often without my knowing much about them, their music, or their history. But I’m not a betting man. I’ve seen enough sad faces driving out of Monticello and Monmouth Racetrack to know why. By definition and by training, I’m risk-averse - indeed, I’m paid by people to, among other things, advise them on how to eliminate or reduce risk. Why would I take an unnecessary risk myself?

I do realize that many artists do not have the economic means to retain counsel on a time-and-expense basis, and I sympathize with that. I grew up in an artist family, after all, and many of my friends still struggle economically to stay working in their respective art forms. But those artists who cannot afford to pay for legal services, should in my view instead concentrate their energies on finding non-lawyer agents or non-lawyer managers with whom to work. In a perfect world, every artist would be assigned a free lawyer, I suppose - but this isn’t a perfect world. One of the keys to success is working within yourself and staying within your own means.

Second, the dynamics of attorney-client relations can become severely disrupted if the lawyer works on a transaction or on a material-placement project, on a contingent fee basis. A contingent fee arrangement raises the “motivational curve” problem. Anyone who has ever commissioned material-placement work from a contingent fee rep, probably already knows what I mean.

Let me give you the typical scenario, which I hear from artists disgruntled with the work of their former reps: “The guy sent out 5 CD’s to his buddies, in the first 2 weeks. Nothing happened. Then, I kept calling him and he’d never return my phone calls”. Well, guess what? There is probably a graph in an economics textbook which tells you exactly why that happened.

You see, the rep who works on the basis of a contingent fee arrangement is banking on a quick score. Time is his resource, just like money is the client’s resource. The only way the deal works out well for the rep, is if the rep does a minimal amount of work at the front-end, and then gets a big (and arguably disproportionate!) pay-out as a result. If the demo CD is issued, and then the A&R folk don’t rave about them, well... the rep is probably inundated with inquiries from other eager artists. The rep figures that he might as well just jump to the next vine. The rep can send the next artist’s CD out, and hope for a quick score from the second CD... or the third... or the fourth.

In short, the motivational curve is steep - the honeymoon period with a contingent fee rep is often far shorter than an artist would ever expect. If that contingent fee rep also happens to be a lawyer, then that lawyer may well be facing some ethical issues for having failed to zealously represent the client under the Canons of Ethics - and suddenly the retainer agreement between lawyer and client, and the specific promises and disclaimers made therein, become very relevant and interesting. If a lawyer works on a time and expense basis, on the other hand, there is no motivational curve problem. It is “pay as you go”.

Third, a lawyer shopping a record deal on a contingent fee basis may, at least subliminally, allow his/her desire for a sooner pay-out compromise his/her obligations to represent the client’s best interests. What do I mean? Well, take the hypothetical situation of a small-time and seemingly shady label offering the artist-client an actual but small advance amount in exchange for a 5-year recording and touring commitment. Assume that the artist at that point has no other pending bona fide offers.

One of the lawyer’s functions in that scenario, is to counsel the artist as to: (A) why 5 years is actually a heck of a long time relative to an artist’s expected career length; (B) why the lawyer believes the label to be shady; (C) why the label’s first-form boilerplate is oppressive and one-sided, skewed against the artist; and (D) why the advance is too small relative to other future alternatives that the artist might soon have.

But let’s also assume that the lawyer has already put 50 hours into this material-placement work for this artist, and is paying a ton of rent and overhead in his L.A. office. Do you seriously think for a minute that, human nature being what it is, the contingent-fee lawyer won’t at least on some subliminal level steer the artist towards taking the bird-in-hand and accepting the small label’s advance?

My point is, that lawyer’s “advice” will likely turn out contrary to what is actually in the artist’s best interests, under that fact pattern. A lawyer handling that same scenario on a time-and-expense basis will advise that client objectively and fairly, in a manner unaffected by the lawyer’s own personal or pecuniary interests. Whose advice would you believe to be more credible?

Fourth, taking on contingent fee work raises practical and administrative problems for the lawyer. The lawyer has to then essentially follow the client around, tracking the success (vel non) of the entertainment project weekly or even daily, to ensure that payment for services is received. I myself am too busy working for other clients, to spend time and energy doing that. A contingent fee arrangement increases the odds of a billing dispute, especially if the subject client project is successful.

The contingent fee arrangement makes lawyer and client adversarial with respect to each other, from the get-go. Imagine a lawyer spending 2 or 3 hours negotiating audit rights with each client, at the front end of each and every retainer agreement, assuring that the lawyer can inspect and audit the client’s books and records so as to assure accurate payment for services. My point is that lawyer and client should not start as adversaries - rather, they should start together in a business relationship borne of respect, whose precepts are mandated by the Bar and the law. Nothing should compromise the lawyer’s objectivity and professionalism.

I could go on. Suffice it to say, that I think contingent fee arrangements with lawyers are probably best relegated to plaintiff personal injury (“P.I.”) work alone, but are a bad idea and a recipe for disillusionment when applied to material-placement projects and other entertainment matters. I know that I don’t work that way. Even if J.D. Salinger came out of hiding and asked me to work on contingency to market film rights to “Catcher In The Rye”, I would (respectfully) decline.

The only fair way to bill, that is fair to both parties, is on a pure time-and-expense basis, akin to a taxi meter or a utility such as gas or electric. Legal services are a resource, and a valuable one. Clients should pay to the extent that they draw upon that resource. And, under the law, clients can pull the proverbial plug at any time.

Is there a contract between the artist and the attorney? If so, what important points should this contract include? Time periods, for example?

Absolutely yes, there should be a contract between lawyer and client. Some states require them, and in my view, all states should require them. The document is typically referred to as a “retainer agreement”. No one should enter into any business arrangement without a prospective, bilaterally-signed written agreement. Contracting for legal services is no exception. In my view, if the prospective client finds a lawyer willing to work without such a writing - then the prospective client should find another lawyer! The writing protects both parties, including the client.

Keep in mind also, that there is a whole well-developed body of law that governs the relationship between attorney and client. The lawyer is not allowed to “contract around” most if not all of those principles. For example, a lawyer can’t make a client sign a retainer agreement promising not to sue the lawyer in the future for legal malpractice. The lawyer can’t make the client waive bar requirements and Ethical Canons - rather, they are absolute and apply to all the lawyer’s conduct, forever.

In New York, we have a mandatory disclosure known as the “Statement of Client’s Rights” - a copy is posted at These rules and tenets are subsumed into every attorney-client arrangement by operation of New York law. All clients should know these principles, and in my view every state should require such a disclosure. And if one’s home state does not require same, it is theoretically possible to ask the attorney to sign onto such a “statement of client’s rights” as part of the retainer arrangement, as a pre-condition for the client’s decision to retain the lawyer.

In other words, even with the pre-existing client-protective default presumptions of attorney-client law, it is still important that the client be mindful of attorney-client issues prospectively from the get-go, and clarify them in writing whenever needed. (After all, the client is representing himself/herself until he/she retains the lawyer!)

As for time periods, I suppose that they could appear in a retainer agreement, but typically that would be a red herring. First, the attorney is already professionally and legally obligated to act promptly when representing a client. Second, under the American system, the client has the absolute right to fire the lawyer at any time for any reason, or even for no reason at all. So, the client’s real remedy is not to impose written timetables on the lawyer, but simply fire the lawyer in the event of a defaulted or sluggish response. Naturally, any such termination should be done with a dated writing.

The most important issues in a retainer agreement, in addition to those alluded to above, would be hourly rate, description of initially-expected services, obligations of both parties, and billing procedure.

Answers (c) 2003 John J. Tormey III, Esq. All Rights Reserved.
Questions (c) 2003 Hitquarters. All Rights Reserved.

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Interviewed by Stefan Sörin

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