What Does It Mean to Have a Lawyer on Retainer? Types, Typical Amounts, and Your Refund Rights
A retainer is the most misunderstood word in legal billing - it names three different arrangements, only one of which is ever truly non-refundable. Here is how retainers actually work, what people commonly pay, what the ethics rules require, and how to read the agreement before you sign it.
Editorially Reviewed — Content reviewed for accuracy using published legal research, government data, and verified court records. See our methodology
Reviewed by Leonard Goldberg, Editor · Last updated
The Three Kinds of Retainer
1. General (true) retainer - you pay purely to secure the lawyer's availability. It is earned when paid, whether or not any work follows; genuinely rare outside corporate practice.
2. Security retainer (advance fee) - the common one: a deposit held in the lawyer's client trust account and billed against as work is performed. The money remains yours until earned, and the unearned balance must be returned.
3. Evergreen retainer - a security retainer with a replenishment clause: when the trust balance falls below a set threshold, you are billed to top it back up.
Case Details
The rules behind this: attorney fees must be reasonable, and client money must sit in a separate trust account (in most states an IOLTA account) until earned - principles codified in the ABA Model Rules on fees and safekeeping of client property and adopted in every state's professional-conduct rules. New York goes further and flatly prohibits nonrefundable retainer fees (Rule 1.5(d)(4)); California requires a written fee agreement whenever fees are reasonably expected to exceed $1,000 (Bus. & Prof. Code § 6148), on pain of the agreement being voidable.
What a Retainer Typically Costs
How the Money Actually Flows
• You sign a written fee agreement stating scope, hourly rates, billing increments and the retainer terms
• The deposit goes into the firm's client trust account - not the firm's own account
• Monthly invoices draw the money down as hours are billed
• An evergreen clause, if present, requires topping the balance back up at a stated threshold
• At the end - or if you fire the lawyer - the unearned balance comes back to you
If any of those steps is missing from the agreement, ask before signing; under rules like California's § 6148 a non-compliant agreement is voidable at your option.
Your Refund Rights
Life of a Retainer
- 1
Engagement Letter
Scope, rates, increments and retainer type go into a written agreement - mandatory above $1,000 in expected fees in California.
- 2
Deposit Into Trust
Your payment sits in the client trust account, separate from firm money, until earned.
- 3
Billing Against the Balance
Monthly invoices draw down the deposit at the agreed hourly rates.
- 4
Replenishment
Under an evergreen clause you top the balance back up when it hits the stated floor.
- 5
Refund or Final Bill
When the matter ends, unearned funds are returned - or a final invoice settles the difference.
Watch Out For
Three retainer traps:
'All retainers are non-refundable'
False for security retainers everywhere, and New York bars nonrefundable retainer fees entirely. Only a genuine availability-only retainer is earned on payment.
Confusing retainer, flat fee and contingency
A retainer is a deposit against hourly work - not the total price, and the opposite of a contingency fee, where you pay nothing upfront and the lawyer takes a share of any recovery.
The unread evergreen clause
Clients budget for the initial deposit and are blindsided by the first replenishment demand mid-case. Find the threshold and top-up terms before signing.
Lawyer on Retainer - FAQ
What does having a lawyer on retainer mean?
Usually that you paid an advance deposit the lawyer holds in trust and bills against as work is done (a security retainer). Less commonly it means paying purely for availability (a general retainer), which is earned when paid.
Is a retainer fee refundable?
The unearned part of a security retainer must be refunded when representation ends. New York prohibits nonrefundable retainer fees outright; other states police them through reasonableness rules and fee-dispute programs.
How much is a typical retainer?
Commonly cited ranges (consumer legal-marketing sources, not official surveys): about $2,000-$5,000 for divorce, $1,500-$5,000 for misdemeanors, $5,000-$15,000+ for felonies - higher in major metros.
What happens when the retainer runs out?
The firm bills you directly or invokes the evergreen clause requiring you to top the trust balance back up. The trigger and amount should be spelled out in the agreement.
What must the fee agreement include?
The fee basis (hourly, flat or statutory), scope of services and each side's responsibilities - in California, in writing whenever costs are reasonably expected to exceed $1,000 (Bus. & Prof. Code § 6148), or the agreement is voidable.
Is a retainer the same as a contingency fee?
No. A retainer is money you deposit upfront against hourly billing; a contingency fee means no upfront payment and the lawyer is paid a percentage only if you recover - the standard model in personal-injury cases.
Why don't personal-injury lawyers ask for retainers?
They work on contingency: the firm fronts the costs and is paid from the settlement or verdict. That shifts the financial risk to the lawyer - and means a PI firm demanding a cash retainer is unusual enough to question.
Separate from this case: were you injured in the last 2 years?
Class-action payouts are fixed amounts through an administrator. A personal injury claim is a different case — and often worth far more. Free estimate, no obligation.