It’s natural that clients want their attorneys to give them at least some idea of the likely outcome of their cases. Certainly it’s part of the attorney’s job to give the client a sense of whether the matter is likely to be resolved successfully or it lacks merit. But attorneys should never give a guaranty.
It’s essential that your client understands that your opinions on the matter’s outcome are not a guaranty. You need to make it clear that you make no promises about the outcome, and that no such promise is part of the agreement between you and the client.
To do this, consider including a provision like this in your fee agreement:
Disclaimer of guaranty. Although Attorney may offer an opinion about possible results regarding the subject matter of this agreement, Attorney cannot guarantee any particular result. Client acknowledges that Attorney has made no promises about the outcome and that any opinion offered by Attorney in the future will not constitute a guaranty.
Keep in mind that a disclaimer-of-guaranty clause doesn’t protect an attorney who makes actual misrepresentations to a client about the potential outcome of a matter. For example, in Charnay v Cobert (2006) 145 CA4th 170, 185 there was a “no guarantees” clause in the fee agreement, but the court found that the client stated intentional fraud and negligent misrepresentation claims against the attorney who falsely told the client that she didn’t have to worry about mounting litigation costs because she would recover costs at the end of the case.
Get many more sample provisions in CEB’s Fee Agreement Forms Manual. How do they compare to your fee agreements? And learn about preparing fee agreements and effective techniques for avoiding fee disputes in CEB’s program Attorney Fee Agreements, available On Demand.
Other CEBblog™ posts you may find useful:
- 2 Key Provisions for Your Fee Agreement
- What to Include in a Fee Agreement for Forming a Corporation
- Fee Agreements: Say What You Won’t Be Doing
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