What is an Engagement Agreement?

An engagement agreement is a written agreement in which two parties contract for the provision of goods and/or services. One party provides the good or service, the other party receives and pays for it. Exactly who, what, when, where, and why are all matters left to the parties. Not to sound too nebulous, there are in fact guidelines and even rules. But the engagement agreement is very much a creature of the parties' design.

One can be excused for believing that an engagement agreement is basically an employment agreement. Indeed, in certain circumstances, there are virtually no differences between the two types of contracts. For example, if a company signs an engagement agreement with an individual-say, General Motors engages Ms. Jones to be its Vice President in charge of marketing-then this arrangement is pretty much identical to GM having hired Ms. Jones by way of an employment agreement. In both scenarios and in both documents, Ms. Jones works for GM, is compensated by GM, and likely receives a number of the same benefits-stock, options, healthcare coverage, severance compensation, even relocation expenses perhaps. Further, both agreements will carry a term of employment, provisions for termination by the parties, and non-competition and/or non-solicitation clauses. What is more, in both cases, Ms. Jones will probably be authorized to sign documents on behalf of GM, binding it. Ms. Jones is thus not an independent contractor but rather, an employee, with all the benefits and all the liabilities attendant to that position. Thus, in this scenario of Ms. Jones working for GM, there is nothing to separate engagement agreements-as a category, bear in mind-from employment agreements.

Let us take another scenario, however-one that shows engagement agreements in a different, perhaps more familiar light. In this scenario, GM signs an agreement with Ernst & Young for the latter to provide accounting services to the former. In this case, Ernst & Young works for GM but in the capacity of an independent contractor. Ernst & Young receives compensation from GM for its services (and probably gets reimbursed for its expenses, too), but the employees of Ernst & Young do not receive the same benefits-healthcare, 401K, severance, and so forth-from GM as do the regular GM employees, like Ms. Jones. Moreover, while Ernst & Young may have the capacity to act on behalf of GM, as its agent, it also may not. GM would have to grant this right to Ernst & Young-the mere fact of engagement by GM does not convey this right. At the same time, the engagement agreements for Ms. Jones and for Ernst & Young probably both discuss term, termination of the agreement, and non-competition, among a number of boilerplate provisions.

In the latter scenario with Ernst & Young, perhaps the definitive characteristic is the independent contractor status of the party being engaged. Typically, such party is being asked to perform a service that a normal employee cannot and would not to that level. This service could be nearly anything, from legal and accounting services to artistic and entertainment ones.

As was previously mentioned, engagement agreements are highly adaptable to the parties' wishes. Whereas an engagement agreement to hire a law firm would talk about malpractice, client's funds, billing, and confidentiality, among other matters, an engagement agreement to hire a carpenter would talk about craftsmanship, timeliness of services, installation of the finished product, and so forth.