Retainer - Feeding The Sharks

Choosing a criminal defense lawyer is an important decision. Criminal defense lawyers are not all the same; every one of them is different in the way they handle cases, be it their experience, ability, or style. A lawyer who would be the best in one type of case may not be in another. Also, depending on the magnitude of the charges and the case, the retainer quoted by a criminal defense lawyer may seem to the naive client to be extremely high; sometimes as much as an expensive car or even a moderately priced house. But remember what is at stake in a criminal case, the liberty of the person accused. The experienced attorney knows that when compared to trying to keep your liberty, money is much less important to you than staying out of jail.

Therefore the attorney will charge you as large a fee as he can get away with.


The amount of the retainer paid (whether high or not) is not necessarily indicative of quality performance. Be wary of lawyers who solicit your business or promise good results. They make money from high client turnover, and high turnover means that they must plead clients guilty and move on to the next case. No lawyer can ethically or realistically promise a good result. It is a sad fact of life that 99.9% of all criminal defendants are convicted when they go into court. Some cases, therefore, must be pleaded because “damage control” is all the criminal defense lawyer can do in that particular case. However, the best plea offers are obtained by the best trial lawyers because the prosecutor knows that the risk of his loss at trial is greater.

The government creates entire bodies of laws – statutes, motor vehicle codes, building codes, compulsory education laws, and so on ad nauseam. They can now legally control YOU, the office person they created with your new driver license, car registration, voter registration, house deed, school enrollment and many more binding contracts….. Now you know why you had to sign all of those new state documents – they are hidden invisible contracts – compelling you to perform for your masters.

If you do not exactly perform as required for your slave masters — they will arrest you and drag you into their courts. The judge will not allow any constitutional law or state law arguments. The only thing the judge will look at during your trial is the terms of the contract that you signed – and 99.9 percent of the time — you are in violation of those equity contract agreements. — Game over — you lose.

Criminal defense lawyers often charge flat rate fees, plus expenses. It is a harsh reality of criminal defense work that when the client is convicted, he or she could end up in prison and be unable to make payments on fees or will be disappointed in the outcome of the trial and just refuse to continue to make payments to the defense attorney who lost his case. Therefore, the fee quoted is based on the lawyer’s experience in what type of work will be required and how much time it will take. Some lawyers have payment plans.

Keep in mind, however, that retaining a lawyer requires the lawyer to take time and devote his or her knowledge and expertise to your case, and, depending on the case, the work might be performed in the near future. Ordinary people who work for a living expect to be paid timely as soon as their labor is completed. Stores and suppliers expect to be paid shortly after they deliver.

So, you will be very surprised to find out you must pay your criminal defense lawyer in advance, shortly after you retain him or her, even though they have not yet done any work for you. This arrangement protects the attorney and also relieves him from having to do a good amount of work as you have paid in advance and now his work does not have to bring any guaranteed result.

It is not the defense attorney’s job to prove his client innocent. His job is to protect his clients Rights. When that is translated it means that if the defense attorney has done his job and protected his client’s Rights, then there are no appeal-able issues once his client is convicted.


Most defense attorneys do not negotiate their fees because they know that they have you bent over a barrel. Most will, however, make reasonable accommodations for payment of the fee as long as one-half is paid before the first court appearance, and the balance is paid within 60 days of them being retained. The total amount is due well before the trial date and your failure to fulfill the fee agreement will allow them to withdraw and leave you stranded in court. Normally they will not refund to you the retainer you paid as they will claim it is for payment of all the pre-trial work they, or their staff, performed on your case.


What is a Retainer?

 Most lawyers require a retainer agreement, which is also known as a “work for hire” contract. This document typically includes the type of work the attorney is doing for the client, all associated fees, and the general rights of both parties entering into the agreement.

What is a Retainer Fee?

A retainer fee is an advance payment that a client makes to his or her lawyer before the lawyer performs any legal work for the client. It is similar to an allowance in that the lawyer is able to draw funds for various fees as the case proceeds. Retainer fees are almost always required for cases involving a trial or a lawsuit. These amount of the retainer varies based on the type of lawsuit or case. Retainer fees are usually worked out through a retainer fee contract, which is basically a contract stating the amount of money to be paid and how it can be used.

Why Should I Have to Pay a Retainer Fee?

When hiring an attorney, a potential client is often asked to pay an upfront fee called a “retainer” in order to hire the client. Many clients wonder why they should have to pay such a fee, particularly when they are sometimes non-refundable and they have not yet received any benefit from hiring the attorney. What happens if the case settles shortly after paying the retainer fee and before the attorney has done much work?

What are the Benefits of Retainers?

A client may choose to pay using a retainer fee in order to demonstrate that they are serious about their case and wish to retain the lawyer’s services. Retainer fees help to establish a harmonious attorney-client relationship. It indicates that the client can trust the lawyer with their funds and that the two are willing to work together. Retainers are beneficial for both the attorney and the client because it allows the client to manage how much they spend, as well as, ensures that the law firm is paid for the work they do. Traditionally, when the retainer account gets low or has been fully used, the client either refills the account or can chose to end the services. Usually, the money from a retainer fee is placed in a separate account from the lawyer’s personal funds. This ensures that the lawyer will not use the money for their own purposes before services are actually rendered. Additionally, all expenses and hours worked are entered with descriptions and provided to the client.

Pro-Retainer Fees

There are a number of very reasonable reasons an attorney might want to request the upfront payment of a retainer fee? It compensates an attorney for the use of his or her name, reputation, and expertise, even if only because the attorney’s name gains leverage for the client and allows the case to settle more quickly. In fact, having the right attorney can sometimes achieve a settlement after only a phone call or a letter. There is obviously value to this benefit, and from a fairness standpoint, it only seems appropriate that the attorney should be compensated for use of his or her reputation.

Similarly, the fee compensates the attorney for agreeing to be on standby for the case. By doing so, regardless of the course of events in the case, the attorney is potentially foregoing other gainful employment and business opportunities in order to remain available when needed for the lawsuit.

Of course, retainer fees also protect an attorney after the work has begun. For example, if the case proceeds and work is required of the attorney, the attorney can use the retainer fee to defray costs as s/he performs necessary work on the file. Similarly, should a disagreement arise or some other unforeseen circumstance that would make it impossible for the client to pay the attorney as originally agreed, the retainer fee ensures that the attorney receives at least some compensation for the time devoted to the matter.

Anti-retainer Fees

Of course, there are a number of arguments against collecting an upfront retainer fee, as well. For example, some clients might be put off by the idea of prepaying for someone’s services, and look elsewhere for another attorney who does not charge a retainer fee. Naturally, that means the best instance in which to charge a retainer fee is when the attorney is specialized in a hard-to-find discipline, the number of attorneys in that field/location is very low, or the attorney is exceptional in some other way (board certification, particularly well-known in the community, etc.). Just as in economics, scarcity often creates value, and this gives exceptional attorneys an advantage when negotiating retainer fees.

Another argument against retainer fees is that some clients fear that if little or no work is done by the attorney before the case settles, the client will have effectively paid for nothing. Of course, as noted above, the counter-argument is that the party is buying the opportunity to work with the attorney and utilize his or her reputation. Failing to pay the retainer fee for fear of paying for “nothing” is a one-sided view that does not take into account the attorney’s sacrifices in agreeing to forgo other work in order to take on the case and, of course, the attorney’s reputation value. Indeed, the opportunity cost of not paying the retainer fee to retain an attorney may be much higher than the fee itself! Nevertheless, many attorneys are willing to forgo a retainer fee or refund it if little or no work is done on the case prior to settlement.

The final argument against retainer fees is that some clients, when presented with two similarly qualified attorneys, may tend to choose the one who does not charge a retainer fee. Not collecting a retainer fee may actually serve as a way for newer attorneys to get into the marketplace and compete against more seasoned attorney lawyers with well-developed reputations.

Common Practices for retainer Fee

If an attorney does decide to charge a retainer fee, there are some common practices that may be wise to observe. For example, the retainer fee is often based on a multiple of the attorney’s hourly rates and the number of hours the attorney reasonably believes could be expended in a set period of time. Alternatively, the fee could simply be an arbitrarily selected number, but must usually have some relation to the matter at issue and will often be regulated by the bar association of that state.

Remember, actual time spent on the case is usually tacked on in addition to the retainer fee, and the retainer is merely a deposit. Nevertheless, many attorneys will use the retainer fees to pay off the initial charges on a matter until the fee is depleted. At that point, the attorney will usually switch to a standard hourly billing arrangement, or may request the payment of another deposit before work can continue (a replenishable retainer).

Are there Other Types of Fees?

While retainer fees are the more traditional way of paying for legal services, another common type of payment is called a contingency fee. This type of fee differs from a retainer fee because the lawyer does not request any money upfront, but instead the lawyer is paid by taking a percentage of the client’s monetary award. This is often used by the ambulance chasing attorneys in personal injury cases. The monetary risk is solely on the lawyer because the lawyer receives nothing unless the client wins the case or receives a settlement agreement.

What are Unearned and Earned Retainer Fees?

“Unearned” retainer fees refers to the money that is placed in the retainer account before the lawyer has earned them. This would be the “allowance”. The lawyer is not entitled to touch this money until they have documented “earned” fees that include logged hours, materials, or additional overcost fees. A well written retainer fee agreement will be clear about how unearned and earned monies are defined.

What is a Retainer Fee Dispute?

The most common dispute is with “left over” funds. This occurs when attorneys fail to return the leftover funds in a timely manner, or the relationship ends on negative terms and the client and attorney disagree on what should be paid on the final bill. Another common dispute is where the lawyer uses retainer money before earning it. This is usually the result of a poorly-written retainer fee agreement.

Do I Need ANOTHER Lawyer?

If you believe you have a retainer fee dispute, an experienced malpractice attorney could help direct you to the resources available to you and inform you of your rights. The retainer agreement usually has a fee arbitration clause in them and that refers to programs that are run by state bar associations and are usually free or low cost. If the issue cannot be resolved through arbitration, they it would be highly advisable to seek an attorneys help in reaching a mutually agreeable resolution.


The choice to charge a retainer fee or not is ultimately the attorney’s preference in most cases. While the bar association or other governing bodies may occasionally mandate certain deposits and fees, this is the exception, not the rule. An attorney’s choice of whether to charge a retainer fee, and how much that fee should be, may have certain pro’s and con’s, so it is important for the attorney and anyone evaluating an attorney, to determine whether that individual is sufficiently qualified, experienced, and well-known to warrant charging such a fee and how much a reasonable amount is. Naturally, most attorneys are willing to work with a client to figure out the best approach that will be fair to both the lawyer and the client, but understanding the attorney’s relative value and scarcity in the marketplace can give each side additional leverage in any resulting negotiation.



In The United States, we have the very best legal system that “money can buy”.