Why scope matters more than the fee
Most retainer arrangements fail for one reason: nobody wrote down what “everything” meant. The business assumes that court appearances, a new joint-venture agreement and a data-protection audit are included; the lawyer assumed contracts and notices. A retainer works when the scope is specific enough that both sides know, on any given day, whether a piece of work is inside or outside it.
What to define
1. The entities. The company and every related entity the retainer covers — subsidiaries, the proprietorship, the partners’ LLP. Work for an entity not listed is out of scope.
2. Categories of work. Contracts (drafting and review, with a rough volume), notices (sent and received), recovery (from reminder to notice), advisory queries (with a turnaround), litigation management (status tracking and coordination), board and management support (a monthly call), and compliance (specific statutes only).
3. What is excluded. Court and tribunal appearances, filings, arbitrations, transactions above a stated value, regulatory investigations, and work requiring specialist counsel — each quoted separately and approved in writing before it begins.
4. Volume. A retainer that covers “up to N documents or hours a month” with a rate for excess is fairer to both sides than an open-ended one; unused capacity is not usually carried forward.
5. Turnaround. Routine documents in a stated number of working days; urgent items by agreement; a named backup during the lawyer’s court commitments.
6. Who may instruct. One or two named people. Instructions from others are confirmed with them. This protects the company from unauthorised work and the lawyer from conflicting instructions.
7. Conflicts. How potential conflicts with other clients are checked and disclosed, and what happens if one arises.
8. Fees and expenses. The monthly fee, the billing date, the rate for out-of-scope work, court fees and out-of-pocket expenses billed at cost, GST, and the notice period for ending the arrangement.
9. Confidentiality and data. Where documents are stored, who has access, and how the business’s data is handled and returned.
Records the business should keep
A retainer runs on records, and the business’s own housekeeping determines how useful it is:
- a contracts register — every agreement, its date, term, renewal and notice provisions;
- a matter tracker — every dispute, notice and case, with the next date and the responsible person;
- a notices file — everything sent and received, with proof of despatch and delivery;
- board and shareholder records — resolutions, minutes and filings;
- statutory registers and compliance calendar — GST, labour, MSME, RERA, data protection, as relevant;
- a standard-terms library — approved templates for customer, vendor and employment agreements, updated by the lawyer as the law changes.
Instructions and communication
Agree on a single channel for instructions (email to a dedicated address, with WhatsApp for urgency only), a monthly written status report on every open matter, and a quarterly review of the arrangement — what was used, what was not, what should change. Ask for a short written note after every court appearance in a matter the retainer covers or coordinates.
Questions to ask before signing
- Who will actually do the work, and who covers when they are in court?
- What is the turnaround for a standard agreement?
- How is out-of-scope work quoted and approved?
- How are conflicts handled if a customer or vendor of ours becomes a client of yours?
- What do you need from us in the first thirty days?
- How do we end the arrangement, and what happens to our documents?
A note on professional rules
An advocate’s retainer is a professional engagement governed by the Bar Council of India rules on professional conduct: fees are agreed with the client, not contingent on results; the advocate cannot act against the client in a related matter; and the client’s confidences are protected. A written retainer letter recording the scope, the fee and the instructions is in both parties’ interest.
Talk about your matter
This article is general information. Your position depends on your documents and dates — call or WhatsApp to arrange a consultation.