Workers Compensation Retainer Agreement

What to Consider When Reviewing and Signing an Attorney-Client Engagement Agreement for Workers Comp

A Contract of Representation Explains What to Expect from Your Lawyer During a Workers Comp Claim and What You Should Do to Help the Case

Most professional relationships between injured employees and workers comp attorneys start with an interview. 

During the interview, the attorney will ask questions about your background, the accident, notice, and medical treatment to evaluate your credibility, predict potential defenses (willful misconduct/violation of a safety rule, statute of limitations, etc.) and determine the likelihood that workers compensation covers your claim. And you will decide if this attorney is the best person to look out for your interests. 

After the interview and, in some cases, additional investigation such as requesting medical records and reviewing them, the attorney will agree to represent you.

When the attorney accepts representation in your case, the two of you have entered into a contract. This contract is an Attorney-Client Engagement Agreement, also called a Workers Compensation Retainer Agreement.

This article explains what to look for when reviewing the Retainer Agreement from your attorney. Though there is not a “one-size-fits-all” approach to an attorney-client relationship, there are certain things the Engagement Agreement should address so that you know what to expect during the workers comp claims process.

While you’re here, check out the other articles on the site. No matter where you are in your case, you’ll find information that helps you protect your right to workers comp benefits and negotiate a top-dollar workers compensation settlement for your injury.

You can also call me at (804) 251-1620 or (757) 810-5614 or complete the form to your right to schedule a free consultation.

Do Attorney-Client Engagement Agreements Have to be in Writing?

Some jurisdictions require Attorney-Client Fee and Retainer Agreements to be in writing. But Virginia does not. 

Even if your state’s bar or Workers Compensation Commission does not require a written Retainer Agreement, you and your lawyer should put the deal in writing. This is the best way to avoid disagreements or uncertainty in the future. 

What Items Should the Workers Comp Attorney Engagement Agreement Include?

The Retainer Agreement should include:

• Legal matter covered by the contract: The document should specify what work the attorney is responsible for, including the accident date, the type of claim, and what court has jurisdiction. These details are essential, particularly if you have past workers compensation cases that remain open. Or if you have a Social Security Disability claim or third party action arising from the work incident (automobile accident, product liability, intentional tort, etc.). Though some attorneys, like me, handle these types of claims simultaneously, others do not.

• Fee amount: The contract should state how the contingent fee is determined. Usually, the gross amount of the settlement determines the workers compensation attorney fee. But further clarity is necessary if the case resolves by structured settlement or a lump sum plus the funding of a Workers Compensation Medicare Set-Aside (WCMSA). There should also be language stating how to calculate attorney fees if either party terminates the contract early.

• Right to associate with other attorneys: The contract should state whether your attorney can associate with other lawyers to prosecute your case. This is common and should not cause concern if the attorneys will split fees and not charge you additional monies. It’s similar to when a primary care physician refers you to an orthopedic surgeon to evaluate Magnetic Resonance Imaging (MRI) after a work-related back injury.

• Legal Costs: The Retainer Agreement should state who will pay for the expenses connected to bringing your case. In workers comp, legal costs include medical records and reports, doctor conferences, court reporter fees for depositions, narrative reports, and expert witnesses’ questionnaire responses. Usually, your attorney will advance these costs. But you must reimburse these costs when the attorney-client relationship ends or you settle your case.

• Settlement: The client always has the final say in whether to accept a settlement offer. The Engagement Agreement should state that.

• Appeals: The Retainer Agreement should state whether the attorney agrees to appeal any adverse decision. It’s rare for the contract to promise representation after an unfavorable decision from the Deputy Commissioner or the full Commission in a work injury case.

• No Guarantee: The document should state that the attorney cannot guarantee a specific result. If your attorney promises a particular outcome, then I recommend finding a new attorney. Litigation is unpredictable.

• Agreement to cooperate with your attorney: You hire an attorney to make your life easier and give you the best chance of a fair result. But that doesn’t mean you can ignore the case. The Retainer Agreement should state your responsibilities and what actions you should take to help your attorney get the best possible result for you. These duties may include telling your attorney if you move or change your phone number, cooperate in the case’s preparation and trial, and show up to scheduled mediation or depositions.

• Right to terminate services and withdraw as counsel: Either party may terminate the contract for legal services. Your attorney, however, is bound by Rule 1.16 of the Rules of Professional Conduct, titled Declining or Terminating Representation. This means your lawyer must ask the Workers Compensation Commission for permission to withdraw from the case. The Commission will usually grant the motion if it believes withdrawal will not harm your legal rights.

• Right to a copy of the file. As the client, you can get a copy of your case file. The Retainer Agreement should state this fact and clarify who is responsible for copying charges related to the request.

Sample Workers Compensation Retainer Agreement

I, ______________________________, retain and employ COREY R. POLLARD, ESQUIRE and JENKINS, BLOCK & ASSOCIATES, P.C. to represent me in my workers compensation claim arising out of an industrial accident that occurred on ________________. I understand that no attorney-client relationship is created until Jenkins, Block & Associates; P.C. receives and acknowledges my signed original workers’ compensation retainer agreement (the “Agreement”).

As compensation for your services, I agree to pay attorney fees as follows, subject to the approval of the Virginia Workers Compensation Commission:

1. Fees awarded by the Virginia Workers Compensation Commission in the future for professional services following a hearing or the entry of an Award Order based on stipulation or Award Agreement Forms, a request for penalties, or otherwise.

2. Twenty percent (20%) of a lump sum settlement.

3. Eighteen percent (18%) of awards for permanent partial disability benefits.

4. If the workers compensation insurance carrier or my employer made a settlement offer before I signed this Agreement, the attorney fee is the lesser of:

          A. Fifty percent (50%) of the difference between the last settlement offer made to me by the workers compensation insurance carrier or my employer and the final lump sum settlement amount, or

          B. Twenty percent (20%) of the total final lump sum settlement amount.

Jenkins, Block & Associates, P.C. has searched for conflicts of interest and confirms that there are no conflicts.

Jenkins, Block & Associates, P.C. will investigate my workers compensation claim and if, after investigation, it is the attorney’s judgment that this case has no merit to proceed, the attorney may withdraw from this Agreement by giving written notice of the same to me.

I agree, subject to the Virginia Workers Compensation Commission’s approval, that attorney fees may be deducted from my workers compensation benefits and sent directly to my attorney. I agree to pay Jenkins, Block & Associates, P.C. for their services if ordered to do so by the Virginia Workers Compensation Commission. All fees are subject to the approval and discretion of the Virginia Workers Compensation Commission.

I understand that Jenkins, Block & Associates, P.C. reserves the right to associate with another law firm and agree that it can share fees based on its agreement with that other law firm.

In addition to attorney fees, I understand that there may be expenses such as court costs, court reporter fees, medical reports, expert witness fees, and other expenditures or obligations incurred in connection with this matter. I agree to reimburse the firm for these expenses if I authorized the firm to incur these expenses.

I authorize Jenkins, Block & Associates, P.C. to incur reasonable costs connected with the litigation of this matter. I understand that Jenkins, Block & Associates, P.C. is not obligated to advance expenses associated with medical reports and expert witness fees.

I understand that the attorney cannot guarantee a specific outcome. If I do not win the hearing on my claim, I acknowledge that my attorney doesn’t have to file an appeal with the full Virginia Workers Compensation Commission. Similarly, the attorney is not obligated to file an appeal with the Court of Appeals of Virginia or other appellate courts absent the execution of an additional retainer agreement.

I understand the attorney will not settle the claim without my authorization.

I agree to read the new client information provided to me and all correspondence from this office. If I do not understand any portion of written materials or communications from this office, I will call and request an explanation.

I agree to report developments and information to my attorney if they may impact my workers compensation claim. This includes, but is not limited to, medical appointments, changes in telephone number or address, job offers, and a return to work.

If I am receiving wage loss replacement benefits or the employer or its insurance carrier is paying for medical treatment, and either of these things stops, I will notify the attorney.

I understand that I can terminate this agreement before recovering indemnity benefits or medical care or negotiating a settlement. If I do so, I agree to pay the attorney a reasonable fee from the later recovery or settlement plus unpaid expenses related to prosecuting the claim to the date the attorney-client relationship ended. The Virginia Workers Compensation Commission will determine the appropriate fee.

If requested, Jenkins, Block & Associates, P.C. will copy my file when the attorney-client relationship ends and give me a copy. I understand that I’m responsible for mailing and copying charges related to this request.

The attorney might determine that I have a viable Social Security Disability claim or third-party action arising from the work injury. Should I choose to hire the attorney for one or more of those matters, I will execute a separate Retainer Agreement specific to that claim.

_______________________    ___________________
Claimant                                    Date

A Record of Success Getting Benefits and Settlements for Injured Workers

Few things are as difficult as figuring out the workers comp claims process while dealing with an injury or occupational disease.

Fortunately, you don’t have to do it alone. 

Call me today for a free consultation: (804) 251-1620 or (757) 810-5614. See why other attorneys in Virginia have voted me one of the best work injury lawyers in the state.