What are retainers, and why do lawyers charge them?

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“Anybody who thinks talk is cheap should get some legal advice.”
– Franklin P. Jones

What is a retainer?
Even if you have never before spoken with a lawyer or seen the inside of a courtroom, you have probably heard that lawyers collect “retainers” as payment for their professional services. If you think you will need to work with a family law attorney, it may help you to know what lawyer retainers are, and how this unique sort of business arrangement actually works.

Although lawyers in some areas of practice are only paid if there is a financial recovery for the client, lawyers in other fields (including family law practice attorneys like me) charge for the time they actually spend working on your case. The only way that I can guarantee being paid for the work that you ask me to do is to collect a “retainer,” which is an agreed-upon amount of your money that I put in reserve to pay for the work you require. I use the money in your retainer fund to pay your invoice for you each month. A retainer needs to be large enough at least to cover anticipated work and expenses to the end of each billing period. In my Pittsburgh family law office, the billing period is a single calendar month.

Why do lawyers charge retainers?
Lawyers expect to be paid for their time and professional services, just like anybody else who works for a living. While I do my best to work with people facing difficult financial circumstances, it would be business suicide to take my clients’ financial problems onto my own shoulders. The family lawyer who turns himself into a living credit card will have as many clients as he likes until the lights go out and the heat shuts off, because promises don’t spend when the time comes for him to pay his own bills.

A retainer is not just a guarantee that I will get paid for my work, it is also my assurance that you will take your case as seriously as you should. There are plenty of ways to get more “bang” for your legal buck and to keep the cost of your litigation manageable, but the best outcomes for your family law case usually do not come from indiscriminate fighting. In my experience, the clients who want their family lawyers to run a tab for them are often the same ones who expect their lawyers to attack, attack and attack.

How is a lawyer’s retainer different than a legal fee?
Usually, a lawyer’s retainer and a lawyer’s fee are two different things. A lawyer’s fee is what he charges for the services you are asking him to perform, usually identified in a fee agreement that states how much you agree to pay the lawyer for each hour of his time. The retainer is the money set aside to pay that fee as the lawyer earns it, and unless the fee agreement says that no further payment will be due – and always read a fee agreement carefully before you sign! – you can expect to be responsible for replenishing the retainer balance so that the lawyer never works himself “into the red” on your case.

How do lawyers calculate retainers?
Since the object of the lawyer’s retainer is to make sure that money is put aside to pay for services to be rendered, some retainers will be larger than others because some cases require more work than others. If I know that I need to “hit the ground running” for you by drafting multiple documents and by appearing in court several times in the near future, I am more likely to charge a higher initial retainer than if your case is likely to begin with casual exchanges of correspondence and documents as we try to resolve issues through negotiation before anything much happens in court.

If I know that my opposing counsel will be somebody who loves an angry client and likes to litigate every last little thing (and sadly, there are lawyers like that out there!), odds are I will charge my client a higher retainer than if I know my opposing counsel shoots straight and will work with me either to negotiate a fair outcome, or at least to minimize the number of issues over which we are actually fighting.

What do lawyers do with retainers?
The Pennsylvania Rules of Professional Conduct for lawyers require us to maintain a trust account that is separate from our general operating funds, into which we deposit funds that do not (or do not yet) belong to us.

Will lawyers take payments instead of a retainer?
Many years ago I added up what non-paying clients owed me, and realized that if they all paid their debts at once I could live very nicely for a whole year of leisure. After that, I decided that working for “payments” was all-too-often the same thing as working for free. Who can afford to do that for any length of time and expect to stay in business?

Lawyers have families to support and bills to pay, just like you do. Don’t expect any of them to extend you credit without very good reason, or without some form of security in return. We know perfectly well (from bitter experience) that people who have to choose between paying for something they need now, or paying for something they have already received, will choose the current expense every single time. Wouldn’t you?

Can I make my ex pay my lawyer?
Family courts in Pennsylvania will sometimes award attorney fees, but it is not as common as some might wish and you must never depend on getting them. Whenever a family law attorney is pursuing counsel fees for a client, the odds are strong that he is going after them to get his client reimbursed, rather than working to get paid at all.

Never expect your divorce lawyer to gamble with his fee, or to take somebody else’s risks. The best family lawyers will make sure that you have the opportunity to choose for yourself the chances you will take in your case, and they will also help you to understand the possible consequences of those choices, but they cannot take those chances for you. The reason is simple: this is your case, and not your lawyer’s. You brought your attorney in to guide you and to stand up for you, and if he does his job properly he will give you the very best opportunity to protect your rights and to claim what is yours. Your lawyer can never control the result of his efforts, however, because only the judge can do that; and if your lawyer is ever foolish enough to guarantee anything at all about the outcome of your case, be sure to get that guarantee in writing.

Your lawyer will refuse to put your risks onto his own shoulders. It has nothing at all to do with whether he “believes” in your case; it’s just that he believes in making a living, too.

If you need legal assistance with your divorce or family law matter in Southwestern Pennsylvania, call my law office to set up a personal consultation with a Pittsburgh family law attorney, and to learn more about what to expect in Pennsylvania family court. This blog will feature periodic updates. Consider subscribing! Please do not comment anonymously, and do not post anything that you consider confidential. I try to be responsive to commentary and questions, but know that posting here will not create an attorney/client relationship and that I will not offer legal advice via the Internet.

Michael B. Greenstein
Greenstein Family Law Services, P.C.
1789 S. Braddock Avenue, Suite 590
Pittsburgh, PA 15218

Phone: 412-371-4500
Fax: 412-371-4501
http://www.greensteinfamilylaw.com

2 thoughts on “What are retainers, and why do lawyers charge them?”

Dolores Stone said:

January 14, 2018 at 6:22 pm

Do lawyers return any of the retainer fee. I have been paying monthly bills along.
Case is closed. $2,000. retainer fee left.

- Michael B. Greenstein said:
  
  January 24, 2018 at 12:50 am
  
  You should review your fee agreement with your lawyer for the answer to that question, but you may indeed be entitled to a refund. Most of the time, unearned portions of a retainer remain your money, and can be refunded. Lawyers don’t usually just get to keep money that was never used to pay your bill, but definitely start by reviewing your fee agreement and your lawyer’s invoices to ensure that what you think is a positive retainer balance really is that.
  
  Once you have done that and are still convinced that your current understanding is correct, contact your lawyer’s office and ask the same question.
  
  If you don’t get an answer that satisfies you from your lawyer, the ultimate recourse is to contact the Disciplinary Board of the Pennsylvania Supreme Court. Rule 1.5 of the Rules of Professional Conduct provides that lawyer fees must not be excessive. Keeping a retainer that was never used to pay for services rendered and expenses incurred after your case ends risks crossing that line.
  
  My Pittsburgh family law office generally treats an initial retainer as a minimum fee (and our fee agreement covers that), but all subsequent replenishments are fully refundable except to the extent that they have been used.