Can You Get Your Retainer Back From a Lawyer? Here’s How
Learn how to assess your legal retainer, understand refund eligibility, and navigate the process of recovering unused legal fees.
Paying a retainer fee is often required when hiring a lawyer, securing their commitment to your case. But if the relationship ends prematurely or you question the value received, you might wonder if you can get that money back.
Whether a refund is possible depends on the specifics of your agreement, the work performed, and applicable ethical rules governing attorneys.
Reasons for a Refund
Certain situations may warrant asking for a refund of retainer funds.
Service not rendered
If a lawyer does not perform the legal services paid for in advance, you may be entitled to a refund. Advance payments for specific services are generally considered unearned until the work is done. Should the representation end before the lawyer completes the agreed-upon tasks, any unearned portion of the retainer typically must be returned. This applies regardless of who terminates the relationship.
Overbilling
Overbilling occurs when a lawyer charges fees that are unreasonable given the circumstances. Ethical rules require lawyers’ fees to be reasonable, considering factors like the time and complexity involved, the skill required, and the results obtained.1American Bar Association. Model Rule 1.5: Fees Examples of overbilling include charging for work not done, billing excessive time for tasks, performing unnecessary work, or billing for services outside the agreed scope without consent. If you believe you were overbilled, you might be due a refund for the excessive charges.
Breach of contract
A lawyer’s failure to fulfill fundamental obligations outlined in the retainer agreement can also be grounds for a refund. This might involve neglecting the case, missing deadlines, failing to perform agreed-upon actions like filing documents, or inadequate communication. Such failures could constitute a breach of the agreement, potentially entitling the client to a refund of unearned fees, or fees paid for work improperly handled due to the breach.
Key Clauses in a Retainer Agreement
Your retainer agreement, the contract outlining the attorney-client relationship, is crucial in determining refund eligibility. Pay close attention to the scope of services clause, which defines the specific legal tasks the attorney will perform. This clarifies what work is covered by the retainer fee.
The fee structure section explains how charges are calculated, such as hourly billing or a flat fee for a defined task. It should specify the rate and explain how the retainer payment functions. Most often, a retainer acts as an advance deposit held by the lawyer, drawn against as work is performed and costs are incurred. This is typically called an “advance fee retainer.” Ethical rules generally require lawyers to deposit these funds into a special client trust account, separate from their operating funds.2Association of Legal Administrators. A Primer on Using Attorney Trust Accounts The money remains the client’s property until the lawyer earns it by completing the work.
Some agreements might specify a “general retainer” or “true retainer,” paid solely to ensure the lawyer’s availability and prevent them from taking conflicting cases. These are sometimes considered earned upon receipt and may be labeled non-refundable, though the enforceability of such clauses can vary and is subject to review for reasonableness. The agreement should clearly state the type of retainer and how it is earned.
Ethical standards, like those reflected in the American Bar Association’s guidelines, mandate that a lawyer’s fee must be reasonable (Rule 1.5). Factors determining reasonableness include the time and labor required, the novelty and difficulty of the questions involved, the skill requisite to perform the legal service properly, the fee customarily charged in the locality for similar legal services, the amount involved and the results obtained, and the experience, reputation, and ability of the lawyer performing the services.3American Bar Association. Comment on Model Rule 1.5: Fees
The agreement should also detail billing practices, including the frequency and detail of invoices and the process for drawing funds from the retainer deposit. Regular, detailed statements help track how the retainer is used.
Finally, the termination clause outlines how either party can end the representation and what happens to remaining retainer funds. Ethical obligations (reflected in ABA Model Rule 1.16(d)) generally require the lawyer to promptly return any unearned portion of an advance fee retainer upon termination, after accounting for completed work and incurred expenses.4American Bar Association. Model Rule 1.16: Declining or Terminating Representation The agreement might also include clauses on dispute resolution, such as mediation or arbitration, for handling disagreements over fees.
Examining Billing Statements
Reviewing your lawyer’s billing statements carefully helps you manage costs and understand how your retainer is used. These statements should detail the services performed, time spent, and expenses incurred. Regular review allows you to track progress and verify charges.
Check the level of detail for each entry. Vague descriptions like “legal research” hinder assessment. Look for specifics: the task performed, date, time spent, and who performed it. This detail helps confirm the work aligns with the agreed scope.
Note how time is recorded, often in increments like 6 or 15 minutes. Understand the minimum billing increment. Verify the billing rates applied correspond to the person performing the work (partner, associate, paralegal) and that the assigned personnel level seems appropriate for the task. Charging excessively high rates for routine tasks could be deemed unreasonable.
Scrutinize listed expenses, which are costs incurred by the lawyer apart from fees. Common examples include court filing fees, deposition transcripts, and expert witness fees. These charges must also be reasonable, typically reflecting actual costs without markup. Look for itemized expenses, not lump sums, and request documentation for significant costs if needed. General office overhead is usually included in the hourly rate, not billed separately unless agreed upon.
Certain billing patterns warrant attention. “Block billing,” grouping multiple tasks into one time entry, can obscure how time was spent. While not always improper, it merits closer review. Also, watch for potential “double billing,” where the same time block might be charged to multiple clients. Consistent review helps ensure charges accurately reflect services rendered.
The Refund Request Process
Discussing a potential retainer refund should start with direct communication with your attorney, followed by a formal written request via letter or email. This creates a clear record. State that you seek a refund of unearned funds and explain why, referencing specific circumstances like uncompleted services or billing concerns.
In your written request, refer to the terms of your retainer agreement, pointing to relevant clauses about scope, fees, or termination. Reference the billing statements, showing the total retainer paid, the amount billed, and the resulting balance you believe should be returned. Specify the exact refund amount sought. Maintain a professional, factual tone.
Your lawyer has an ethical duty to address your request. Widely adopted ethical rules (like ABA Model Rule 1.16(d)) require lawyers to promptly refund any advance payment of fees or expenses that has not been earned or incurred upon termination of representation. “Promptly” means without unreasonable delay after necessary accounting.
The lawyer should provide a final accounting detailing services, earned fees, and incurred expenses, reconciling this with the retainer held. If the lawyer agrees with your assessment, the refund should follow. If there is disagreement over the amount earned, the lawyer is generally still obligated to return the undisputed portion promptly. Keep copies of all correspondence.
Fee Dispute Resolution
If direct communication fails to resolve disagreements over the final bill or retainer refund, several options exist. Many state and local bar associations offer fee dispute resolution programs, often providing a less formal and costly alternative to court.
Fee arbitration is a common option. The dispute is submitted to a neutral third party (an arbitrator or panel) who reviews evidence from both sides and issues a decision, often binding, on the fair value of the legal services. Initiating arbitration usually involves filing a request with the bar association program. While voluntary for clients, participation is often mandatory for attorneys if requested by the client.
Mediation may also be available. A neutral mediator helps the client and attorney communicate and work towards a mutually agreeable settlement. The mediator does not impose a decision. If successful, the agreement is documented; if not, parties can pursue arbitration or other options.
If bar association programs are unsuccessful or unavailable, pursuing the matter in court is possible. Small claims court offers a simplified forum for disputes involving smaller sums, often allowing self-representation. Jurisdictions set monetary limits for small claims cases.
For larger amounts or more complex cases, a lawsuit in the regular civil court system is an option, though typically more formal, time-consuming, and expensive, often requiring legal representation. Regardless of the venue, ethical principles requiring reasonable fees and the return of unearned funds remain relevant. While bar disciplinary committees focus on misconduct rather than resolving simple fee disagreements, persistent refusal to return unearned funds could potentially trigger an investigation. Your retainer agreement might also specify a required dispute resolution method, such as mandatory arbitration.
