2 Harv. Negot. L. Rev. 69 (1997)
Game Theory and Nonrefundable Retainers: A Response to Professors Croson and Mnookin

handle is hein.journals/haneg2 and id is 75 raw text is: Game Theory and Nonrefundable
A Response to Professors Croson
and Mnookin
Lester Brickman & Lawrence A. Cunninghamt
In the inaugural issue of the Harvard Negotiation Law Review,
Professors David Croson and Robert Mnookin attempt a game-theo-
retic defense of the nonrefundable retainer.' A nonrefundable re-
tainer is an attorney fee arrangement that requires a client to pay
her lawyer a specified dollar amount in advance and entitles the law-
yer to keep the fee even if he does no work. For nearly a decade, we
have argued that nonrefundable retainers are unethical as a matter
of professional responsibility and unenforceable as a matter of law.2
In the last few years, numerous courts have evaluated the enforce-
ability of these agreements, choosing to ban these fee devices on ethi-
cal and legal grounds.3 Scholars of ethics have participated in a
t The authors are both Professors of Law, Benjamin N. Cardozo School of Law,
Yeshiva University. Professor Cunningham was visiting at The George Washington
University Law School when this article was written. The authors thank Professor
Thomas D. Morgan for reading and commenting upon an earlier draft.
1. David C. Croson & Robert H. Mnookin, Scaling the Stonewall: Retaining
Lawyers to Bolster Credibility, 1 HARv. NEGOTIATION L. Rzv. 65 (1996).
2. See  eg., Lester Brickman & Lawrence A. Cunningham, Nonrefundable Re-
tainers: Impermissible Under Fiduciary, Statutory and Contract Law, 57 FoRHAMi L.
Rv. 149 (1988) [hereinafter Brickman & Cunningham, Fiduciary, Statutory and
Contract Law]; Lester Brickman & Lawrence A. Cunningham, Nonrefundable Retain-
ers Revisited], 72 N.C. L. Rv. 1 (1993) [hereinafter Brickman & Cunningham,
Nonrefundable Retainers Revisited]; Lester Brickman & Lawrence A. Cunningham,
Nonrefundable Retainers:A Response to Critics of the Absolute Ban, 64 U. CiN. L Rav.
11 (1995) [hereinafter Brickman & Cunningham, A Response to Critics]; Lester Brick-
man & Lawrence A. Cunningham, Brief of Amicus Curiae in Opposition to Respon-
dent-Appellant's Appeal, In re Cooperman, 633 N.E.2d 1069 (N.Y. 1994), reprinted in
Brickman & Cunningham, A Response to Critics, supra, app. at 42.
3. See, eg., In re Cooperman, 633 N.E.2d 1069 (N.Y. 1994); Wong v. Michael
Kennedy, P.C., 853 F. Supp. 73 (E.D.N.Y. 1994); In re Mills, 170 B.R. 404,409 (Bankr.
D. Ariz. 1994); In re National Magazine Publ'g Co., 172 B.R. 237 (Bantr. NJ). Ohio

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