Is this retainer agreement a true or classic retainer?

Asked over 3 years ago - Los Angeles, CA

The legal services to be provided by Attorney to Client are as follows: REPRESENT CLIENT IN ONE ORDER TO SHOW CAUSE HEARING. This retainer does not include representation in any further hearing or appearance and does not include an appearance in any trial. Should any further bearing become necessary, a subsequent retainer shall be completed. Additionally, this retainer does not cover any appeals or preparation of enforcement documents, such as Qualified Domestic Relations Orders.

The client acknowledges that the attorney has explained to satisfaction that this fee is non-refundable. Additionally, this fee is being paid for the purpose of assuring the availability of the firm in this matter and to ensure that the firm does not represent the other party in this matter.

Additional information

While the last line indicates the availability of the attorney, which on its own would constitute a true retainer, my confusion comes from the fact that under "Legal Services to be Rendered," the agreement is that the attorney will "Represent [Me] in One Order to Show Cause Hearing." The wording here sounds to me like this is a security retainer for the attorney to represent me in an show cause hearing, nullifying that this is, indeed, a true retainer since a true retainer is SOLELY for the lawyer's availability, not for a specific service. Hope this makes sense!

About the agreement being non-refundable: In CA, only true retainers are non-refundable, even if the agreement says it’s non-refundable, it is unless it is a true retainer. Oftentimes, attorneys will write up a security retainer or advance payment retainer and include that these are non-refundable. But, according to state law they are. The law>agreement. That's why I want to be absolutely 100% sure this is, indeed, a true retainer.

Attorney answers (4)

  1. Answered . I think it's a problem that you aren't asking your own attorney to clarify a point on his own retainer agreement. If you don't feel comfortable asking him/her about it, you should find another attorney.

  2. Answered . Good answer above. Also, one cannot properly discuss one part of a document without seeing the entire document.
    A new trend is "unbundling" of services. Instead of doing the entire divorce, you hire someone to do just one hearing and/or one pleading, or trial only. It has its benefits and risks.
    I personallly don't ever hear anyone use the terms "true" or "classic" except when contrasted to an "unbundled" relationship. The real issue is whether there is a "meeting of the minds" about what your attorney will and importantly will not do for his/her compensation.
    This is analysis not advice. Please see my disclaimer below

    The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may... more
  3. Answered . I concur with my colleagues. If you're not comfortable enough to talk to your attorney regarding his own retainer then there are some fundamental issues.

    This appears to be a limited scope retainer.

    Good luck to you.

    http://www.pacificpremierlaw.com

    Attorney's response does is not intended as legal advice is intended for informational purposes only. Attorney's... more
  4. Answered . To be a valid contract, there must be mutual assent or a meeting of the minds. This is judged objectively. That is, the contracting parties' intent will be gleaned from an objective standpoint.

    In a valid written contract the writing should control the validity and meaning of a contract. Of course, any ambiguity of a written contract will be construed against the drafter of the contract as they [the drafter] were in the best position to create a contract that reflected the intentions of the parties when it was formed.

    Getting to your specific question now, you do seem to have a very good understanding of the requirements for a "true retainer." The key really boils down to whether you would be expected to pay for ANY legal services after the retainer is signed and payment is proffered. A true retainer will cost something. And when you pay to retain a lawyers time for a specified period or event, that's all you are getting for your money. You're not getting legal services. Of course, a lawyer can provide free legal services if they so desire, but barring that scenario, any legal services to be performed pursuant to the retainer would cost you [the client] more money.

    You need to ask yourself a question, did you expect to pay for the lawyer's services for his/her representation of you at the OSC hearing? If yes, then the contract you signed was most likely a true retainer and the lawyer earned his fee when you signed the contract and he promised to make himself available for your needs in connection with the OSC hearing. If no, and you expected that your payment for the retainer included the lawyer’s representation of you for the OSC hearing, then the retainer may constitute an “advanced fee,” that would need to be earned by representing you in the matter.

    The language of this retainer seems to point towards it being a “true retainer” but without knowing what you and your attorney discussed, I cannot say with any certainty.

    This website contains general information about legal matters. The information provided by Jacob Regar is not... more

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