Retainer fees are payments made to an attorney in advance to secure their services for future legal representation. In most cases, retainers are refundable if the attorney does not use all the funds for the agreed-upon services. However, getting a retainer back from an attorney can be complicated. There are some exceptions to the general rule. To understand whether you can get your retainer back from your attorney, you should continue reading.
The first step in getting a retainer back from an attorney is understanding the retainer agreement. Attorneys commonly use five (5) different types of retainers. Those agreements are the following:
A general retainer is an agreement in which a client pays an attorney a set fee in advance to secure their services for a specific period of time, such as a month or a year. In most cases, a general retainer is not refundable. This is because the general retainer is usually used to reserve the attorney’s time and availability rather than to cover specific legal services or expenses. Since the general retainer fee is given in exchange for availability and not for the rendition of legal services, the lawyer will charge separate fees for legal services actually rendered.
A nonrefundable retainer is a payment made by a client to an attorney that is not refundable, even if the attorney does not perform any legal services or if the client terminates the attorney’s services before the retainer is used up. In general, with a nonrefundable retainer, the client agrees that regardless of the amount of work or outcome of the case, the fee remains the same, and the client will not be refunded any money at the end of the case. However, a lot of states have made nonrefundable retainers illegal. For example, in California, nonrefundable retainers are considered illegal. In Missouri, where I practice, there is no “nonrefundable” attorney fee. The only fee where a client is not entitled to a refund in Missouri is a fee that the attorney has already earned. Similarly, in New York, attorneys may only charge a nonrefundable retainer fee if the fee is reasonable and the attorney provides the client with a written agreement that clearly explains the terms of the fee. In contrast, in Texas, nonrefundable retainers are legal. However, a Texas attorney can still be disciplined for refusing to refund an unearned fee or charging an excessive fee.
A flat fee retainer is a fee paid to a lawyer to cover a specific set of services or representation for a particular case or project. It is a one-time fee that is agreed upon at the beginning of the representation. A flat fee retainer covers the lawyer’s services for that specific case or project. Generally, a flat fee retainer is nonrefundable, which means that the client will not be able to get any part of the retainer back at the end of the case. One exception to this rule would be if the attorney did not fulfill their obligations under the retainer agreement. For example, if a lawyer fails to perform the services they promised, the client should be entitled to a refund of part of the retainer.
An evergreen retainer is paid to a lawyer to secure their ongoing services for a certain period of time, typically on a monthly or annual basis. This type of retainer is often used for ongoing legal services, such as business or employment law matters, and the retainer is replenished as it is used up. Unlike a flat fee retainer, an evergreen retainer is usually refundable, meaning the client may be entitled to refund any unused portion of the retainer at the end of the representation. However, the terms of the retainer agreement will govern whether or not a client is entitled to a refund, and there may be some exceptions. One common exception to the refundability of an evergreen retainer is if the retainer agreement specifies that the retainer is nonrefundable. In some cases, the agreement may specify that the retainer is earned upon receipt and is nonrefundable, regardless of whether or not the client uses all the funds for legal services.
An advanced payment retainer is a type of retainer that is paid to a lawyer at the outset of a representation, and the lawyer withdraws funds from the retainer as work is performed. This retainer type is sometimes called a “prepaid” or “deposit” retainer. Unlike a flat fee retainer or an evergreen retainer, the amount of an advanced payment retainer is not a fixed fee for a specific project or period of time. Instead, the retainer is a deposit held by the lawyer in a trust account and is used to pay for the lawyer’s services and expenses as they are incurred. Generally, an advanced payment retainer is refundable to the extent that the lawyer’s fees and expenses do not use it up. For example, if a client pays a $15,000 retainer and the lawyer bills $12,000 in fees and expenses, the client would be entitled to a refund of the remaining $3,000.
Keeping records of all payments and services is vital to ensure that you get a retainer back from an attorney. This will help you to track the funds in the retainer and to verify that you are entitled to a refund. Keeping copies of all payment receipts, invoices, and other records related to the retainer and the services provided is a good idea. You should also keep records of any communication with the attorney, including emails, letters, and phone calls.
If you believe you are entitled to a refund of your retainer, you should contact the attorney and request a refund. This should be done in writing, either via email or letter. In your request, include your name, contact information, and a detailed explanation of the services provided and the unused portion of the retainer. Be polite and professional in your request for a refund, even if you are frustrated with the attorney or the services provided. An aggressive or confrontational approach is unlikely to be productive and may even harm your chances of getting a refund.
If the attorney refuses to refund your retainer, or if you cannot resolve this through direct communication, you may need to take legal action. In my experience, the easiest way to resolve an issue over a lawyer’s bill is to file a fee dispute resolution complaint with the state bar association. Most states have a fee dispute resolution process that can be used for free by clients. The systems are designed to be used by clients without having to hire an attorney to get the dispute resolved. The process is easy, and you should be able to get the billing dispute resolved without needing to hire a lawyer and spend more money just trying to get money back from your lawyer.
Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.
