“I know lawyers who won’t even start discussing settlement until they have burned through their retainer.” This comment was made by a family law attorney about other lawyers in that field.
I wish I could say the comment shocked me, but it didn’t. There are some lawyers who feel entitled to the retainer they collect. They view it as a minimum payment for every case. That, of course, isn’t what a retainer is designed to do. It’s supposed to be a way for the lawyer to make sure that clients are serious about moving forward. It’s a way for the lawyer to deal with a legitimate problem–clients who ask the lawyer to do work on their behalf, but don’t pay for the lawyer’s work. The retainer is especially appropriate if the attorney and client haven’t worked together before.
But that doesn’t mean that the lawyer is automatically entitled to be pocket the entire amount of the retainer. Retainers come into play when clients are paying by the hour. Thus, lawyers are entitled to the retainer only if they legitimately devote enough time to cover the retainer amount.
As the client, there are a few things you can do to avoid lawyers who see the retainer as a minimum down payment. First and most importantly, avoid non-refundable retainers. Second, negotiate the smallest retainer you can. It’s hard to know in advance which lawyers have the entitlement mentality, so protect yourself and put the lawyer in the position of having to invoice you for the vast majority of the hourly work they do for you. You can save thousands of dollars in legal fees by holding firm and negotiating a small initial retainer.