An attorney in CA is required to enter into a written retainer agreement with a client anytime the fee exceeds $1,000. Naturally the client should be able to see a copy and negotiate its terms before signing.
Most criminal lawyers work on a flat fee which means they estimate how much your case will cost and you pay up front. You should still be provided a retainer agreement.
Basically there are two types. In the retainer used by criminal lawyers the fee is usually considered a fee to guarantee the availability of the lawyer and is earned when paid. So if a case settles early most lawyers are reluctant to refund anything as they have born the risk that the case won't settle and their time will far exceed the amount of the retainer.
In the hourly retainer agreement the client agrees to pay the lawyer by the hour and gives the lawyer an advance to get him started. So imagine in this case that you pay a $1,000 advance. The lawyer works for $250/hour and bills you once a month for his time. If you don't object to the bill he deducts it from the retainer he already has in his trust account and pays himself. Your obligation is to then bring the retainer back up to the $1,000 level.
Obviously in the classic retainer agreement if their is money left over at the end of the case the lawyer has to refund it to you.
The problem sometimes arises in flat fee agreements that the client is not satisfied and wants some or part of his money back. The position of the state bar is that even though the agreement was for a flat fee the lawyer must describe the work done and show how the retainer was exhausted. If he can't the bar may order a partial refund.
If the fee was truly to guarantee availability the bar supports it being earned when paid but the retainer agreement must explicitly state this.
If you are negotiating with a lawyer who will not give you a written retainer spelling out your rights or who has one but will not let you see it you should get another lawyer. You are headed for trouble.
I agree with Mr. Kaman, that a lawyer who wants to hide the ball in terms of explaining how his or her fee is determined and the terms and conditions of the representation are, is likely to be a problem. In many cases, clients can't afford two bites at the attorney apple, and if a problem develops with the lawyer, they will have to come up with money for a new attorney and, in the case of firing the former attorney, many times won't be able to rely on a refund in most cases until well after the criminal case is resolved.
For some types of cases, especially white collar cases, you may find an hourly retainer with a minimum fee. This can be helpful in situations where neither the attorney nor the client can form an opinion as to how much time the case will take, but gives both the lawyer and the client some flexibility.
While fees are usually negotiable between an attorney and his or her client, for everything but the most complicated matter or matters, you should probably look for a flat fee agreement. I have seen clients grossly overpay on an hourly basis for criminal defense cases that could easily have been handled by a more experienced attorney for a lesser flat rate.
It's entirely fair, when you're interviewing prospective lawyers, to ask how they arrive at their fee and how much time they anticipate they will devote to your case. If the attorney won't tell you these things you should get someone else.
Your additional information fleshes things out a little bit. It sounds like the lawyer might not think you two are a good match.
It takes some time to prepare a fee agreement, which should include an advisement that you are entitled to consult with an independent attorney of your choice before signing. This lawyer may not think you are serious about hiring him or her, and probably doesn't want to conduct further negotiations without some indication you are willing to pay the fees.
Some potential clients will ask for a consultation, then make repeated calls about a case. I've even spent a couple of hours of my time with people, only to see them in court, trying to represent themselves with the strategies I've outlined during our discussions.
When a lawyer says he or she "has spend enough time already discussing the case for free with the client," it's usually an indication that your relationship is already strained. If you're now posting on Avvo, asking whether the lawyer should prepare a fee agreement for your review, it's probably a good indication you should find a different lawyer, because you're already off to a bad start.
Please understand that this is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. It's impossible to give detailed, accurate advice based on a few sentences on a website (and you shouldn't provide too much specific information about your legal matter on a public forum like this, anyway). You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information.
Flat fees are standard in the criminal defense field, and are actually a benefit to both attorney and client by providing certainty in the fee. If you have a retainer and hourly billing, you will still be liable to pay after the fee is exhausted, and are usually required to post another retainer at that point. A flat fee limits your liability. Many lawyers who bill hourly are tempted to "churn the file", doing busy work to rack up billable hours. You want the lawyer to spend time on productive lawyering for your benefit, not running a billing meter. As for sending you the written retainer, it sounds as though you are doing this long distance, which is not optimal. While I understand your desire to see the agreement in advance, I also understand that the attorney does not want to spend time and money, drafting and sending you a retainer agreement, for you to look over. Many people who do so are not serious about hiring a lawyer, and waste the attorney's time. If you are serious, I suggest that you visit the lawyer in person.