The engagement agreement is the most important document in the attorney-client relationship. Properly drafted engagements clarify roles, responsibilities, and expectations, minimize disputes, and protect lawyers from liability to the maximum extent possible. Provisions on fees and expenses are, of course, fundamental, but lawyers should consider a wide range of other topics, such as scope of engagement, authority of counsel, client responsibilities and cooperation, attorney liens, file preservation and storage, use of technology in handling cases, and withdrawal and termination. This article considers an important but usually-ignored topic-choice of law ("COL") and choice of forum ("COF") clauses.
Part I of the paper examines choice of law in the absence of a COL clause. After an introduction that discusses basic choice-of-law principles and the importance of the distinction between procedure and substance, the section considers choice-of-law in three important selected issues: legal malpractice, fee caps, and lawyer liens.
Part II turns from choice-of-law principles in the absence of agreement to the issue of enforceability of COL and COF clauses. Part II(A) analyzes the case law dealing with enforceability of COL and COF clauses. The discussion shows a wide divergence among the courts in approach and results regarding enforcement of these clauses.
The extensive judicial inquiry required by this state of the law discourages lawyers from including selection clauses in their agreements. This situation creates uncertainty because parties cannot anticipate which law courts will apply to any of the varied disputes that might arise. In short, the present situation is unfair and inefficient to both client and lawyer.
In Part III(B) we contend that COL clauses should be enforceable if they meet two requirements: (1) the law chosen has a reasonable relationship to the engagement agreement, the parties, or the dispute; and (2) application of the chosen law does not violate a clear, strong public policy of the forum. We also argue that such clauses should not be subject to a requirement of informed consent. By contrast, COF clauses should be subject to informed consent because of the potential burden that could be placed on a client who would be required to litigate against an attorney in a jurisdiction other than the client's home jurisdiction. The article concludes with drafting suggestions for lawyers to consider when including COL or COF clauses in their engagements. In particular, we offer suggested language when lawyers seek informed client consent to a COF. If courts follow our proposals we believe that the enforceability of COL and COF clauses will be much clearer, that lawyers will have an incentive to include such clauses in their engagements, and that fair treatment of clients will not suffer.
Francesca Giannoni-Crystal & Nathan M. Crystal,
Choice of Law in Lawyers'. Engagement Agreements,
Dick. L. Rev.
Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol121/iss3/3