Sloppy Retainer = Pro Bono

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Sloppy Drafting of Retainer Means Client's Estate Not Liable for Expert Fees
Michael Booth
New Jersey Law Journal
March 31, 2009

Someday, someone will devise a bullet-proof retainer agreement by which to make a client unequivocally responsible for all litigation fees and costs. Until then, Farmer v. Estate of Patel (.pdf) offers a teaching example of what not to do.

The Retainer Agreement

In addition to legal fees, you may be required to pay for expenses in connection with the institution and prosecution of your claim. Such expenses may include, among other things, expert's fees and expenses for other testimony or evidence, court costs, service fees, investigators' fees, deposition costs, cost of briefs, transcripts on appeal and photocopying, long distance telephone and postage expenses.


Meanwhile, the medical malpractice suit went on, though Patel died in early 2002 before trial. It ended in an Atlantic County jury's no-cause verdict.

Farmer then billed the estate's executor but was paid only $13,000 so he sued.

Decision

Any ambiguity had to be construed against the lawyer who drafted it.

The term "may be required to pay" was not specific enough

Farmer did not make full and complete disclosure to the client of all material facts and potential consequences from signing the retainer agreement.

Nor did he renegotiate the retainer agreement with Patel's executor, whose command of the English language is limited.