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The Retainer

A retainer is a term given to describe a contract for services between a professional and their client. Retainers are known by a range of terms:

client retainer
client agreement
service contract.

Regardless of what term is used to describe the agreement between client and community organisation, the law would most likely recognise it as a retainer. Services offered by community organisations are probably no different from any other services such as hairdressers, plumbers, carpenters etc.

The significance of a retainer is that it describes what services are going to be provided by the professional to the client. The fact that no money passes hands for the services may not affect the existence of a retainer. The scope of the retainer is significant because it sets up the expectation that the client takes away with them after they leave the office.

The scope of the retainer is important for a number of reasons:

it establishes the terms of the contract for services between the worker and client
it establishes the extent of any duty of care owed by the worker to the client
it establishes whether a community worker has breached relevant codes, policies, rules or laws
it may be relevant to professional regulatory or disciplinary proceedings
it may be relevant to internal industrial disputes.

Although few community workers are sued for negligence or breach of contract, it does happen from time to time. Duty of care has become something of a bogeyman for community workers, rarely encountered but frightening nonetheless.

The retainer, when utilised, may assist to clarify some points of potential future contention, including:

how personal records are dealt with including relevance of privacy laws
the relevance of mandatory reporting laws
the circumstances in which confidence can be breached.

For example, if a community worker agrees to undertake a certain piece of work for a client, say the drafting of a letter on their behalf, and they fail to do that work they have breached the contract between themselves and the client. Additionally, they may have breached their duty of care to the client and may be found to have been be negligent as well.

When considering the use of a retainer or similar client agreement, ask yourself:

Is there a standard form of client agreement used?
What does the client agreement contain?
Do client agreements need to differ in specific cases, and if so, how?
Does the client agreement mention issues such as privacy, mandatory reporting, and has the client been made aware what happens to their records, including storage and data transmission to funding bodies?

Importantly, the retainer establishes the expectations of the parties about what is going to be done and thereby achieved.

Limiting the scope

The confines of the retainer are the most important part in establishing expectations and limiting liability. There is clearly a huge amount of variation between what community organisations do for their clients so therefore the range of retainers between community workers and their clients varies greatly.

For example community organisations that offer counselling and support services to people with relationship issues may each provide a different combination of one or more of the following:

information to clients
non-professional support for clients
ongoing professional counselling or therapy for clients
primary dispute resolution services for clients
crisis counselling for clients
advice for clients.

Each of the services offered by an organisation usually sets up a different retainer with a client in that it sets up different terms of service between community organisation (and worker) and client, in particular being different:

types of assistance
durations of assistance
methods of service delivery
requirements for qualification, accreditation
professional, ethical and conduct obligations.

Being clear about what work is going to be done is the key to managing expectations between community workers and clients. This includes clients expectations before, during and after your work with them. Issues that need to be discussed with a client are varied and may include:

the nature of the services to be provided
whether the contract is time-restricted or open- ended
whether the services are contingent on other happenings
whether information or documentation is required to ensure the services can be delivered
whether the services are offered under a service agreement or for another party
whether there are any fees associated with the services
whether there are any relevant legislative standards.