True Retainer Agreement
A true retainer is a guard paid exclusively to ensure the member`s availability, a definition adopted by the California Supreme Court in Baranowski/State Bar, 24 Cal.3d 153 (1979). Had it read the entire 3-700 (D) rule (2), Ainsley would have understood that it „did not apply to a true conservation tax paid solely to ensure the member`s availability.“ (Added highlight.) The key here is that the fees are paid only for the availability of the lawyer, and that the lawyer provided it – or himself for the client during the period provided in the agreement, regardless of the lawyer`s schedule, other cases, workload, convenience or other factors. In particular, in a „real conservation situation,“ the client pays only for availability, and if the lawyer`s services are required, the services would be paid for separately, and no part of the conservation would be used for such services. See the 2011-01 Arbitration Boards (January 28, 2011). This type of conservation arrangement is quite rare, and Ainsley`s description of the conservation count indicates that it does not have a real conservation arrangement with Mr. I-Stabbed-My Girlfriend-Because-I-Was-Angry. If the client needs a lawyer for a long-term relationship, the client can hire the lawyer on a storage basis. Conservation is usually a fixed amount that the client is required to pay the lawyer on a monthly basis in exchange for the opportunity to engage him in the future when legal issues come. Rule 3-700 (D) (2) of the Rules of Professional Conduct („Rules“) provides that counsel and client, unless they have entered into a contract with a „true retainer“ (also known as a „classic retainer“), must reimburse a portion of the advance costs that the lawyer has not yet earned. This raises the question of how to distinguish a „true retainer“ from other forms of down payment.
Rule 3-700 (D) (2) itself suggests that a „real guard“ is paid „exclusively to ensure the member`s availability.“ (Added highlight.) This definition of „true retainer“ was adopted by the California Supreme Court at Baranowski v. State Bar (1979) 24 Cal.3d 153. This language is very clever on his face, but unworkable. Although it was stated in the language of the agreement that the advance was paid to ensure the lawyer`s availability and was not refundable, the advance was clearly to apply to the first ten hours of work. Therefore, the advance was clearly not paid solely to ensure the availability of counsel. The court found that the payment of 2,750 $US was not a real retractor and that counsel was required to repay any money that had not been earned. Another reason why your lump sum agreement is always refunded is the fact that the case law has also taught us that if your retainer is related to a particular service, then it is not a real tidy at all. (Matter of Fonte (Rev.Dept. 1994) 2 Cal. State Bar Ct.Rptr. 752, 757; In re C- P Auto Transport, Inc. (BC ED CA 1988) 94 BR 682, 686-687]) Lawyers: Beware of the „real retainer“ and always record simultaneous periods, even if your case is a lump sum or contingency.