If there is still significant money left over from a retainer once a family law case is settled, will it be returned to the client or is it still kept by the attorney?

(I apologize if this was not the correct place to post this but I was unsure of what was most appropriate, and since it's a family law attorney... )

Also, it's California, if that makes a difference.

If there is still significant money left over from a retainer once a family law case is settled, will it be returned to the client or is it still kept by the attorney?

(I apologize if this was not the correct place to post this but I was unsure of what was most appropriate, and since it's a family law attorney...)

Also, it's California, if that makes a difference.



Unused (unearned) retainer funds are returned by the Attorney. If you signed a retainer when you handed over the money it should be addressed specifically in the agreement.

The Attorney CAN use part of the retainer for costs and disbursements. It is not only for legal fees.

Unused (unearned) retainer funds are returned by the Attorney. If you signed a retainer when you handed over the money it should be addressed specifically in the agreement.

The Attorney CAN use part of the retainer for costs and disbursements. It is not only for legal fees.

We did sign a retainer (contract?) when I gave him the money, but I did not think to ask about what would happen if there was leftover money. I was expecting to end up paying beyond what I was already giving him. We were anticipating a much bigger fight than we've met thus far.

I consulted the document we both signed when I gave him the money and it does not mention what will happen to leftover funds. Just shows how little foresight I had at the time.

Thanks for your response.

Boy is this a good question.

Unused portions of retainers are suppose to be refunded to clients, yes. I have on several occasions had to refund part of a retainer (although they admittedly can be exhausted pretty fast) but I know of some attorneys who do everything they can to avoid this. They even attempt to include "non-refundablity" clauses in their contracts or claim that the retainer is not a true "advance fee" but a special kind of retainer that legally can be non-refundable.

I have serious doubts about the ethical propriety of non-refundability clauses in most attorney-client fee agreements.

Boy is this a good question.

Unused portions of retainers are suppose to be refunded to clients, yes. I have on several occasions had to refund part of a retainer (although they admittedly can be exhausted pretty fast) but I know of some attorneys who do everything they can to avoid this. They even attempt to include "non-refundablity" clauses in their contracts or claim that the retainer is not a true "advance fee" but a special kind of retainer that legally can be non-refundable.

I have serious doubts about the ethical propriety of non-refundability clauses in most attorney-client fee agreements.

Thank you for your thoughtful response...

That's what I was wondering. Nothing specifically refers to what happens to any funds that remain once our case is closed. I believe that my attorney's time is worth a lot, he's been a valuable adviser. But I've made a consistent effort to not bother him with trivial stuff. So only about $1300 of my $5000 retainer has been used thus far with only a few short weeks left on our 6 month waiting period. There will inevitably be more closing costs as we wrap things up. But in case there is a significant amount left over, I could really use that money. Life in Southern California is not cheap, especially when you figure in all the daycare costs that come with a single parent household.

Thank you for your thoughtful response...

That's what I was wondering. Nothing specifically refers to what happens to any funds that remain once our case is closed. I believe that my attorney's time is worth a lot, he's been a valuable adviser. But I've made a consistent effort to not bother him with trivial stuff. So only about $1300 of my $5000 retainer has been used thus far with only a few short weeks left on our 6 month waiting period. There will inevitably be more closing costs as we wrap things up. But in case there is a significant amount left over, I could really use that money. Life in Southern California is not cheap, especially when you figure in all the daycare costs that come with a single parent household.


I'm not in California. I work for a number of law firms in NY and it's never been brought to my attention nor have I ever seen an Attorney not present a client with a final bill and a refund if the retainer is more than the bill.

By definition a retainer is: "A retainer is most often a lump sum payment to an attorney, made in advance of any work performed on your behalf. Attorneys who use retainers often request a specific amount before starting work; that amount is generally negotiable. The attorney then deducts fees and costs from the retainer as they accrue during the representation. Don't be surprised how quickly you can run through even a substantial retainer. And if you change lawyers during the course of your representation, you may not be able to recoup any unused portion of the retainer."

I interpret this to mean that if you DO NOT change lawyers ... you MAY be able to recoup any unused portion.

Also: "A retainer is a fee paid to an attorney or other professional in advance, for services. Often, retainers are paid monthly, based on an estimate of the amount of work to be done for the client each month."

I interpret this to mean that you pay for services in advance. If you don't get/use the services, you are entitled to a refund.

If it were a flat fee you wouldn't be entitled to a refund. It's not - it's payment in advance with an expectation that services will be provided.

Typical Client/Lawyer Legal Fee Arrangements | Legal > Legal Services from AllBusiness.com (http://www.allbusiness.com/legal/contracts-agreements/1326-1.html)

I think most lawyers would rather have a colonoscopy than refund part of an unused retainer. Nonetheless, what's not used for services is suppose to go back to the client.

There are two kinds of advance payments made for attorney services: the first, and most common, is the "advance fee", what people usually (and erroneously) just call a "retainer." This is just an advance payment for work to be done and for costs to be incurred. It's placed into a trust account and is charged against as work in performed and costs paid out with periodic billing statements showing the account status.

The second (and least common) advance payment is the classic "retainer." You don't see these very much but it applies when a lawyer is hired for a specific block of time (you know the old expression, "my lawyer is on retainer"?) and has to make himself available for the client as needed and usually has to turn other business away as a result. This is a different kind of fee arrangement involving a different type of service and in that type of case the lawyer is paid for being available and the retainer is earned when the lawyer is retained (hence it is technically non-refundable).

Some lawyers in my experience try to make the advance fees they are paid non-refundable by calling the fee agreement a "retainer" in the later sense. I have very serious doubts about the ethics surrounding this.

If your fee agreement is silent on refundability then it's probably safe to assume the unearned portion of what you paid can be refunded.