Historically, legal services agreements (also known as retainer agreements) have been one-sided and designed to protect the attorney and the law office, rather than the client. Here are five clauses commonly found in nonprofit legal services agreements that should be reconsidered from a client-centered, trauma-informed lens.
You must cooperate/you must be truthful.
These types of assertions are not commonly found in private practice client letters nor in bar association best practices but routinely appear in legal services agreements for free services. Clauses like this communicate bias against the community you serve, and does not have the potential to meaningfully change your client’s behavior.
You consent to communicate a certain way.
Instead of seeking your client’s blanket consent to use your preferred method of communication, you should have a discussion with your client about the safety issues associated with different forms of communication (for example, emails or other electronic messages may not be secure), and let your client know that they may change the way they communicate with you at any time.
You consent to share the details of your case with our funders/for fundraising purposes.
It is inappropriate to require a client to allow you to share details or information about their case for purposes unrelated to the legal proceedings. The consent obtained may not be real or informed, especially if the client feels that they do not have anywhere else to go. While some funders of legal services will require disclosure of certain information about clients and cases, those requirements should be phrased as notice rather than consent.
You consent to our chosen forum if we have a dispute.
Requiring a low-income client to agree to your chosen forum in the case of a dispute may not be ethical, and again, may not constitute real, informed consent. This is particularly true where the forum chosen by the attorney is out-of-state or requires the client to pay any portion of the cost of arbitrating or mediating the dispute.
By signing this agreement, you agree that you read it, understand it, and received a copy.
Your legal services agreement might contain language like this to act as a safeguard against legal liability, but the clause has no real legal effect. It adds words that increase the cognitive load on your client without adding value to the legal relationship.
To request a free copy of the ABA Commission on Domestic & Sexual Violence Model Legal Services Agreement, please visit bit.ly/ABAMLSA
The ABA Commission on Domestic & Sexual Violence offers access to justice and safety for victims and survivors of domestic and sexual violence. Working closely with local and national partners, the Commission promotes robust and life changing legal responses that provide ongoing support for gender-based violence survivors on their journeys toward lives free from violence and full of opportunity. Visit americanbar.org/cdsv to learn more about the Commission.