What is a retainer?
If you want to hire a lawyer, you must understand what a retainer is. This word can have at least three meanings: money, a relationship, and an agreement. All of them are important. Ask your lawyer to read this blog post and help you understand the concept of retainer, explain the details, and fill in any blanks.
Often, it’s not easy to hire a lawyer. Besides a few other things, you may have to pay a “retainer.” So this is the first meaning of this word: it’s money. The lawyer will keep the retainer in his special “trust” account and apply it to his fees and expenses. The trust account is where the lawyer keeps money that is not the lawyer’s. The retainer in this sense is a security like a mortgage. It simply guarantees that there will be some money when the lawyer bills you. It’s not a price or an estimate. You may have to top up the retainer when it runs out, especially if the lawyer charges by the hour.
Once you hire a lawyer, you begin a client-lawyer relationship with him or her. This relationship is also known as a “retainer.” But you don’t need to hire formally or to pay a money retainer for this relationship to begin. It could be automatic. For example, if a lawyer behaves as if he or she were your lawyer, and you believe that the lawyer is “your” lawyer now, a client-lawyer relationship could begin automatically. Here are some signs: the lawyer gives you legal advice regularly, acts for you, promises to help, doesn’t tell you he is not your lawyer. It could even take a lot less than that. When your lawyer “terminates” his retainer, he ends the relationship with you. He cannot always do it, but the client can do it any time.
Finally, the written agreement you sign to hire a lawyer is known as a retainer agreement or also a “retainer.” This is the third meaning I wanted to talk about. The retainer agreement is evidence of the client’s relationship with the lawyer. It proves that the client is really a client of the lawyer. It also proves that all the policies and rules in the agreement are really part of the client-lawyer relationship. The retainer probably needs to be in writing but you don’t need to sign it. A mutual email could be a good enough retainer agreement. Even a letter from a lawyer to the client could be a “retainer” in this third sense if the client does not object to it within reasonable time.
If you think you have a lawyer, ask him or her if you have a retainer between yourselves. The answer may, but hopefully won’t, surprise you. You can have a retainer (a relationship) without paying any money in trust or putting anything in writing. You may also falsely believe that you have a retainer. Such misunderstanding can really hurt you, so lawyers who cross your path will sometimes tell you and then even write you that they are not your lawyers and that there is no retainer or client-lawyer relationship between you. Don’t take it as a hostile gesture and a sign of mistrust: you can really hurt yourself if you believe someone is your lawyer and they are not. It’s second nature to lawyers to leave a paper trail to protect the public and themselves from misunderstanding and all the potential mess it can cause.