The Importance of Retainer Fee & Agreements in Surrogate Process

Every time an attorney represents a client in an assisted reproduction matter, or any matter, there should be a written fee agreement, called a “Retainer Agreement,” “Representation Agreement,” or “Fee Agreement.” The fee agreement protects the client by providing an exact description of what professional services will be provided, called the scope of representation. It will also describe how much those services will cost and how payment must be made. Whether it is an hourly or flat fee matter, certain topics should always be covered. The following list is not exhaustive; there may be other topics that should be covered in a particular fee agreement.

Agreement for Attorney for Intended Parents

The Agreement for the intended parents should cover at least the following:

Scope of representation, meaning what exactly will the attorney do, e.g., draft the Surrogacy Agreement, review the surrogate’s maternity coverage, and/or represent the intended parents in the court proceedings regarding parentage.

Whether the matter will be billed hourly or as a flat fee

·   If the matter is hourly, then the rate per hour for attorneys, paralegals, and assistants

·   If the rate is subject to change

·   The minimal increment of hourly rate that will be billed

·   Frequency of billing and how the bill will be sent

·   Authorization to use email to communicate, encrypted or unencrypted

·   If the matter is a flat fee, then the exact amount of the fee, a detailed explanation of what is included in the flat fee

·   The amount of the advance due before the attorney will start working on the matter

·   Any refund policies

·   Indicate that any work outside the scope of representation must be authorized by the client

·   If there are two intended parents versus a single intended parent, the joint representation should be addressed, along with potential conflict of interest issues and what happens if they arise.

·   How the client may terminate the representation and how the attorney may terminate the representation

·   How any unearned money in trust will be returned to client

·   How additional advances may be requested

·   How long the client file will be stored before destruction or deletion

·   If it is an interstate arrangement (e., the intended parents live in one state and the surrogate or donor lives in another state), the fee agreement should make clear to the client where the attorney is licensed to practice law and where she is not.

Agreement for Attorney for Surrogates and Donors

In most cases, the intended parents will pay the fees of the attorney for the donor and/or surrogate. The intended parents should expect a fee agreement from that attorney, even though they are only the payor and not the client. (The donor or surrogate is the client.) The fee agreement should contain at least all of the information listed above. Additionally, it should make clear that the attorney will only represent the donor or surrogate (and if applicable, his or her spouse or partner), will not be able to share confidential information with the intended parents without the client’s permission, and will not offer advice to the intended parents, even though the intended parents will pay the fees.

The attorney for the donor or surrogate should also have a written fee agreement with the client, i.e., the donor or surrogate. The Agreement for the donor or surrogate should cover at least the following:

·   All the same items listed above for the intended parents’ fee agreement.

·   Define who is the client (the donor or surrogate) and who is the payor (the intended parents). This should be very clear to the client.

·   A provision in which the donor or surrogate consents to the intended parents paying her or his attorney fees and a provision in which the attorney promises that this payment arrangement will not affect her or his loyalty or duties to the client.

A clear, written understanding between the attorney, the client, and the payor allows for better planning, prevents misunderstandings, and documents the parties’ intentions and responsibilities. In most states, a written agreement is required by attorney ethics rules and should be expected in all assisted reproduction matters.

Partial Information Cited From Academy of Adoption & Assisted Reproduction Attorneys