Retainer Fees and Agreements

Retainer Fees in Donor and Surrogacy Arrangements: what to expect

Every time an attorney undertakes representation of a client in an assisted reproductive technology matter, there should be a written fee agreement. The fee agreement protects the client by providing an exact description of what professional services to expect, how much those services will cost and how payment will be arranged. Whether the matter is accepted on a hourly or flat fee basis, certain principles should always be addressed.
This explanation is not all inclusive and there may be other terms that should be part of particular fee agreement.

Retainers and Fee Agreements for Intended Parent Attorney

The Agreement for Intended Parents should:
o Always be in writing
o Clearly state the matter for which retainer is accepted
o Define the parameters of representation, and the attorney’s duties under the agreement
o Describe how the attorney bills
• If the agreement is based on hourly fees, then the rate per hour (for attorney, paralegal or assistant), if the rate is subject to change, the minimal increment of hourly rate that will be billed, frequency of invoicing, how bill will be sent (and request for authorization to send bill electronically, if applicable)
• If the agreement is based on a flat fee, the exact amount of the fee, the attorney’s exact responsibilities under the agreement, and whether there is expectation of further fee under certain circumstances. Expenses should be, to the extent practical and possible, estimated and described, and should be separately outlined on any bill.
o Note that fees are held in attorney escrow account until they are earned and, for hourly rate matters, both earned and invoiced. These accounts are non-interest bearing.
o State the amount of the retainer fee.
o Explain refund policies
• For unearned monies, refund should always be available, and the agreement should state under what circumstances a refund is due the client. When a flat fee has been paid, attorney should provide a framework for return of unearned fees. For hourly rate matters, attorney should only bill for work that has been done. In both circumstances, unearned money should remain in attorney trust account.
o Contain a statement that no retainer fees are earned upon receipt, and that no unearned amounts are nonrefundable.
o State who the attorney represents, and indicate that the attorney will only advise the client and not any other party.
o Indicate that any additional work must be authorized by the client
o Address potential conflict of interest issues and what happens if they arise, and state that such conflicts can be avoided if each intended parent has a separate attorney. The clients may, however, agree to proceed with joint representation.
o Acknowledge that client may terminate the relationship with the attorney at any time, and any unearned funds would be returned to client.
o State that any retainer amount may have to be replenished if funds are depleted or further work requested by client.
• The agreement should be signed by all parties.
• The attorney’s representation commences when the signed retainer has been returned with the requested retainer fee.

Representation of Surrogates and Donors
Donor/Surrogate Attorney Fee Agreements with Intended Parents

Intended parents will, in most cases, pay the legal fees for representation of donors or surrogates. The intended parents should expect a fee agreement from the donor’s/surrogate’s lawyer, and it should contain all of the information about charges that would ordinarily be in any fee agreement. Additionally, it should state that the donor/surrogate attorney will only represent the donor/surrogate (and, if applicable, his or her spouse or partner), will not offer advice to the intended parents, and will establish the attorney-client relationship with the donor/surrogate, not the intended parent, even though the intended parent or parents will pay the fees.

Retainer Agreements with Donor/Surrogate Clients

Counsel for the donor/surrogate should also have a written retainer agreement with tat attorney’s client . These Agreement should :
o Always be in writing.
o State the matter for which representation is accepted.
o Define who is the client.
o Define the parameters of representation, and the attorney’s duties under the agreement.
o If both the donor or surrogate is married or has a partner who is a party, and the attorney represents both the donor and partner or surrogate and partner, the agreement should address potential conflict of interest issues and what happens if they arise, and state that such conflicts can be avoided if each partner has a separate attorney. The clients may agree to proceed with joint representation, but only if they are in agreement about the donor or surrogacy arrangement.
o Address the potential for conflict when another party pays for the client’s legal representation, and should contain an explanation that attorney’s duties are just to the client, regardless of who pays the fee, and allow the client agree to representation under that circumstance, or have the option for client to pay independently.
o If an inter-state arrangement, (where the intended parents live in a state different from the state where the donor/surrogate lives), or where the agreement is interpreted under the laws of another state where the donor’s or surrogate’s attorney does not practice), a statement that the attorney does not practice in the other state, and the attorney will make necessary accommodations to reliably convey accurate information about the other state’s laws and procedures.
o Allow the client to terminate the attorney-client relationship.
o Be signed by the client.
o Copy provided to donor/surrogate.

A clear, written understanding between the attorney and the client allows for better planning, prevents misunderstandings and documents the parties’ intentions and responsibilities. It is a necessary element of the attorney-client relationship and should be expected in representation for ART arrangements.