by jennifer j. rose
Sometimes the willingness of the family law client to sign a retainer
agreement, and even pay the retainer, just isn't enough to make sure
that you are going to get paid. You may know that your client simply
does not have the financial resources to fund costly litigation such as
a child custody case, modification, appeal or other protracted
Perhaps the client's mother, boyfriend, or even new spouse promises to
pay your fee. Your first indication of their interest in the case may
be that check which your prospective client brings to your office, drawn
upon the account of a third party. Your client may indicate to you that
the third party will pay your fees. You know that you will need more
than the client's assurances that the fee will ultimately be paid.
Get that promise in writing from that third party. May sure that the
payor understands exactly what his or her role is in the case: the
payor is a source of payment only. Have the non-client sign a joinder
and guarantee agreement. The cosigner should clearly understand that
the guarantee does not create an attorney-client relationship between
the cosigner and the attorney. Even though the cosigner guarantees
payment of attorney's fees, the consignor will have no rights to
determine the course of litigation. You have an ethical obligation to
exercise independent professional judgment on behalf of your client
which must be not impaired by the interests of the third-party payor.
Make sure that both the client and the cosigner understand that the
guarantee of payment will not get in the way of your loyalty to the
Stress to the cosigner that, while your acceptance of the prospective
client is contingent upon execution of the guarantee agreement, and
while you're truly appreciate of his or her backing, you cannot discuss
the case with the cosigner, divulge any client secrets or confidences
with the cosigner, or allow the cosigner to in any way impair your
ethical obligation to your client. Make certain that both client and
cosigner understand that the representation you render would be same,
regardless of the fee guarantee. This message is often assuring news to
a cosigner who fears that the guarantee agreement will encourage counsel
to pad fees and expenses.
Before accepting a guarantee agreement, make certain that your client
understands the agreement and consents to payment of fees by the third-
party payor. Generally, this is not a problem: the prospective client
dearly wants your representation and will almost always agree to payment
of your fees by the guarantor! Lest you fall into an unwanted ethical
conundrum, do not accept a cosigner's agreement to guarantee your fees
in the absence of the client's consent.
While you will submit a duplicate itemized statement of your fees to the
cosigner, under certain circumstances it may be appropriate to submit a
"sanitized" statement to the cosigner, which deletes certain
particulars. (In these cases, the client should be encouraged to share
his complete copy of your statement to the cosigner so that the cosigner
understands the work undertaken.) Because there is no attorney-client
relationship between the attorney and the cosigner, the cosigner could
be subject to a subpoena to testify. A subpoena duces tecum could yield
valuable discovery information to the opposing party. Similarly, the
client's itemized bill may reveal confidential information which should
not be disclosed to the cosigner.
JOINDER AND GUARANTEE AGREEMENT
FOR AND IN CONSIDERATION OF __________________________ ("Attorney")
performing legal services on behalf of and extending credit to
("Client"), we join and guarantee to pay Attorney in full any
indebtedness now or hereafter owing to the Attorney, arising out of
services provided for by the terms of the Fee Agreement executed on
______________ (date of execution of Fee Agreement), a copy of which is
attached hereto and by this reference incorporated herein. The
liability of the undersigned ("Guarantors") shall be full and absolute
as though the same were parties to the Retainer Agreement.
The guarantors understand and agree:
1. Liability for payment of this debt does not create an attorney-
client relationship between Attorney and Guarantors.
2. Execution of the joinder and guarantee agreement does not entitle
Guarantors to control of litigation.
3. The Guarantors are not entitled to inspection of Attorney's files or
information concerning this case.
4. The Attorney will act and rely upon this agreement in extension of
credit on behalf of the Client.
This joinder and guarantee agreement shall be immediately binding upon
the Guarantors and shall continue in full force and effect until the
Guarantors have given written notice to the Attorney not to extend
further credit. Delivery of notice shall operate to prevent any
liability on the part of the Guarantors for future indebtedness, but
Guarantors shall remain liable upon all indebtedness then existing.
DATED this ________ day of ___________________, 20___.
jennifer j. rose practiced matrimonial law in Iowa and now lives in
central Mexico as an eccentric recluse and legal consultant
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