In the lawyer-client relationship, there is a built-in tension between the lawyer-professional role and the lawyer-businessperson role. That tension is often most taut at the outset. The client wants access to the lawyer’s knowledge. The lawyer wants a fee. The lawyer-businessperson wants to maximize profits and minimize loss, but the lawyer-professional is constrained by rules of professional propriety.

The parties are not free to negotiate whatever terms of engagement suits them. A handshake will not do. In most cases, the terms of engagement must be in writing. There was such a writing in the form of a retainer agreement recently examined by our Supreme Court in Delaney v. Dickey, (A-30-19). In Delaney, the retainer agreement contained a not uncommon clause requiring arbitration of “any dispute with respect to the Firm’s legal services and/or payment by you of amounts to the Firm”. The retainer agreement designated JAMS as the private arbitration organization to handle any conflict.

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