Also known as: retainer agreements · retainer
Written by attorneys · grounded in primary & secondary sources — see below
A contract between a lawyer and client that establishes the terms of the representation. It identifies the scope of services to be performed, the fee arrangement, and the respective responsibilities of the parties.
Select any source to read its text and confirm it supports the definition.
Roland Rhodes met with an attorney to discuss a potential personal injury claim. The attorney evaluated the facts and offered advice on filing deadlines. No written retainer agreement was executed and no fee was paid. When the attorney failed to follow up, the statute of limitations expired. Rhodes later sued the attorney for malpractice, claiming the consultation created an attorney-client relationship that imposed a duty of care.
Noel signed a retainer agreement with Alexander that confined representation to negotiating a single shoe endorsement contract. The writing expressly excluded team contract negotiations and personal conduct issues. When Noel later sought advice on a trade offer, Alexander declined and pointed to the signed document. Noel filed a grievance claiming the limitation was invalid because he had not understood its effect.
Rafael emailed Robert a draft engagement letter quoting an hourly rate and requesting a five thousand dollar retainer for LLC formation work. Robert replied that the terms were acceptable and he would send payment soon. Robert never paid and hired other counsel. Rafael sued for breach, asserting that the email exchange formed an enforceable retainer agreement despite the unpaid retainer.
A retainer agreement need not be in writing to create an attorney-client relationship, but written documentation clarifies scope and fees. Courts examine objective manifestations of assent in emails, oral statements, and conduct. When the parties exchange a draft letter and an affirmative reply accepting the quoted rate and scope, mutual assent can form even without a signature or payment.
Supporting sources
…to be "one of the ends and aims" of the CPA's engagement and "within the contemplation of the parties to the accounting retainer." (372 N.E. at p. 319.) The New York Court of Appeals restated the law in light of Ultramares , White v. Guarente , and other cases in Credit Alliance v. Arthur Andersen & Co.…
…he became a director of Holland and acted as general counsel for the company. During the period in question, he received no retainer
…has been advising Shorewood regarding its investment in a manufacturing facility in China. Her firm receives a $25,000 monthly retainer
…alleges that the directors increased their compensation rates from a base of $20,000 plus $500 for each meeting attended to a retainer
A lawyer may limit the scope if the limitation is reasonable under the circumstances and the client gives informed consent. A signed retainer that expressly excludes certain matters and confirms the client has separate counsel for those matters satisfies the requirements. Subsequent client requests outside the stated scope do not expand the engagement when the lawyer promptly reiterates the written boundary.
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Industry custom supplies an objective benchmark for interpreting broad retainer language. When a retainer lists only general categories such as regulatory counseling and transaction support, custom that treats complex document drafting as a separate matter helps show the parties did not manifest assent to include that task. A prompt written clarification after a client request reinforces that the drafting work lies outside the engagement.
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Law-related services fall under the rules when they are not clearly distinct from the lawyer's practice and the lawyer fails to assure recipients that the services are nonlegal and lack client-lawyer protections. A single retainer that lumps legal representation and project support together, combined with shared office space and letterhead, prevents the services from being treated as separate.
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A client may discharge a lawyer at any time with or without cause. Once the client communicates termination, the lawyer must withdraw and may not continue to act without a new, clear retainer from someone with authority. Court or agency leave affects only the docket and does not revive the attorney-client relationship after an express discharge.
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