Limited Retainers

Whether acting as a solicitor or litigator, it is possible to be retained to perform legal services for part, but not all, of a client’s legal matter.  These agreements should be in writing and clearly explain the limited scope of the retainer so that the lawyer and the client understand the limitations of the service to be provided and the risks of the retainer. 
Section 3.2-1A of the New Brunswick Code of Professional Conduct provides at paragraph [3] of the commentary that a lawyer who acts for a client only in a limited capacity which includes an appearance before a tribunal must be careful not to mislead the tribunal as to the scope of the retainer and should give consideration as to whether disclosure of the limited nature of the retainer is required in the circumstances.  Also review paragraph [7A] of the Commentary to rule 3.1-2 of the Code of Conduct.  A lawyer considering providing legal services under a limited scope retainer must carefully assess if under the circumstances it is possible to render those services in a competent manner.
Be aware of the risks associated with limited retainers. You cannot contract out of negligence, and a provision in an agreement that purports to exempt you from liability for negligence or relieve you from regular responsibilities is void.  (See subsection 83(9) of the Law Society Act, 1996.)
If you are entering into a limited retainer, make sure it is carefully worded and that your client:
  • appreciates the limited nature of the retainer;
  • understands the risks involved; and
  • enters into the limited retainer with informed consent.