The Purpose of a Retainer
Consider the scenario of scheduling a car’s oil change for Thursday and canceling it on Wednesday. The mechanic may struggle to fill that short notice with another customer. Lawyers, dealing with cases spanning months, face potential loss if a case resolves unexpectedly without upfront payment. Finding a replacement client quickly isn’t always feasible.
This is where a retainer comes in — a fee paid to secure a lawyer’s availability for a specific period or purpose. It parallels scheduling with a mechanic; if the appointment is canceled, payment is not required, but the time slot cannot easily be filled by a new client.
The Benefits of a Retainer for Clients
For clients, a retainer offers peace of mind, ensuring dedicated legal representation when needed. It acts as insurance, agreeing that the lawyer will be available to work on your case, and as a result guaranteeing that your case will not be set aside for more potentially lucrative cases. Retainers also simplify proposals, providing a standardized contract for all clients, offering predictability in costs and the lawyer’s availability.
The Benefits of a Retainer for Lawyers
Lawyers benefit from retainers through guaranteed payment, though not covering the entire service cost. Retainers enable better prediction of work, allowing law firms to manage time efficiently. A steady income stream improves financial stability, especially in cases resolved faster than expected, ensuring compensation for the time set aside for the case.
Duration and Scope of True Availability Retainers:
In the context of a retainer, it's essential to define the duration for which the attorney will be available. This could be a specified period, such as a month or a year, with details on whether availability is continuous or limited to specific times, like business hours. Aligning the attorney's availability with the client's potential needs ensures effective and tailored support.
Considerations for Reasonable Availability:
The attorney's availability should be reasonable and aligned with the client's potential needs. For instance, if the client operates a business requiring legal assistance outside regular hours, the arrangement should account for this to provide comprehensive and effective support.
As outlined in RPC 1.5(f)(1), a true availability retainer involves a payment made by a client to a lawyer to secure the lawyer's availability for future services. The unique aspect of this arrangement is that the payment is not presumed to be applied to the client's account as the lawyer renders services. Essentially, the lawyer is compensated for being available to the client, indicating their readiness to provide legal services when needed or as agreed to.
For your availability retainer you may want to consider the following:
Specify the hours or periods during which the lawyer will be available:
Example: The lawyer will be available for services from 9:00 am to 5:00 pm, Monday through Friday, excluding all federal and public holidays.
Outline the nature of the services that will be provided during what times:
Example: The services will include telephone consultations, review of urgent legal documents, and provision of initial legal advice for unforeseen situations.
Define the reasonable expectations for contacting the lawyer:
Example: Clients are expected to contact the lawyer by phone only for urgent matters that cannot wait until the next business day.
Establish the response time for non-emergency and emergency situations:
Example: For non-emergency situations, the lawyer will respond to client inquiries within 2 business days. For emergency situations, the lawyer will respond within 1 business day.
Set the protocol for engaging the lawyer's services during what periods:
Example: Clients must contact the lawyer via the designated emergency phone number and provide a brief description of the issue to initiate services.
In conclusion, retainers offer advantages for both lawyers and clients. They ensure fair compensation for lawyers’ time and commitment, providing clients with the assurance of dedicated legal representation. The term “retainer” signifies a mutually beneficial arrangement for both parties.
As always talk to your attorney first regarding availability retainers.