What Is a Retainer
A retainer is money paid to a lawyer at the beginning of a case, before most of the work is done. It is common in family law, criminal defense, business matters, and other cases billed by the hour or by a flat fee. The word gets used in a few different ways, so it helps to understand what you are paying for and what happens to the money.
How a Retainer Works
In the most common arrangement, you pay an up front deposit when you hire the firm. As the lawyer works on your case, the firm bills against that deposit and sends you statements showing the time spent and the balance remaining. When the balance runs low, many firms ask you to replenish it, sometimes called an evergreen retainer. If the case ends and money is left over, the unused portion is returned to you.
Some firms also use the word retainer to describe the engagement agreement itself, the signed document that sets out the scope of the work and how fees are charged. When a lawyer mentions a retainer, ask whether they mean the agreement, a deposit, or both.
Types of Retainers
Advance fee deposit. The most common type. Money is paid in advance and applied to fees as they are earned.
Flat fee paid up front. The client pays the full flat fee at the start for a defined service. The lawyer earns it as the work is completed.
General or availability retainer. Less common for individuals. A business or client pays to secure the lawyer’s availability over a period of time, separate from payment for specific work. Not every state treats this kind of retainer the same way.
The Rules That Protect Your Money
Under the American Bar Association’s Model Rules, which most states follow in some form, legal fees and expenses paid in advance must be deposited into a client trust account and withdrawn only as the fees are earned or the expenses are incurred. A trust account is kept separate from the firm’s own money. When the representation ends, the lawyer must refund any advance payment that has not been earned. Because of these rules, many states treat a “nonrefundable” retainer with suspicion, and in many jurisdictions unearned fees must be returned no matter what the agreement calls them. States adopt their own versions of these rules, so the details depend on where your lawyer practices.
What to Look for in a Retainer Agreement
- The amount of the retainer and what it covers
- The hourly rates for the attorney, paralegals, and staff, if billing is hourly
- How often you will receive billing statements
- When and how you will be asked to replenish the retainer
- What happens to unused funds when the case ends
- What costs are separate from attorney fees
Frequently Asked Questions
Is the retainer the total cost of my case?
Not necessarily. A retainer is often just a starting deposit. If your case requires more work than the retainer covers, you will likely be asked to pay more. Ask for an estimate of the total cost.
Will I get my retainer back if my case ends early?
You should receive back any portion that has not been earned. Ask for a final accounting showing how the money was applied.
Why is the retainer so large?
Retainers often reflect the expected early work in a case, such as preparing filings and attending first hearings. Contested divorces and serious criminal cases tend to require larger retainers.
Do personal injury lawyers charge retainers?
Usually not. Most personal injury lawyers work on a contingency fee and are paid from the recovery instead.