Demystifying the security retainer
Many people wonder why attorneys use retainers. Abraham Lincoln, per usual, reportedly said it best, by noting that if a lawyer takes a retainer from his client, the client knows that he has a lawyer and the lawyer knows he has a client.
The retainer is more than a contract between the client and the attorney – it is a commitment. The client commits to hiring the attorney to perform legal work, and the attorney commits time and expertise to the client.
Although Illinois recognizes three types of retainers, the most commonly used is the security retainer. The security retainer is a set amount the client gives to an attorney for services not yet performed.
The security retainer is not the property of the attorney, but is instead the property of the client. The attorney must deposit the security retainer funds into a client trust account. The client trust account is an account separate from the attorney’s personal or business accounts to prevent the mingling of the attorney’s monies and the client’s monies. Furthermore, the attorney has a fiduciary duty to safeguard the funds held in the client trust account.
The attorney may apply the client’s funds to the attorney’s billings as services are completed and in accordance with the parties’ legal services agreement. Any unearned funds must be refunded to the client at the conclusion of the case. Also, the client has the right to discharge the attorney at any time, and the attorney must refund any unused portion of the security retainer to the client.
The attorney determines the amount of the security retainer. Attorneys evaluate a number of factors when determining security retainer’s amount, including – but not limited to – the attorney’s expertise, the economic marketplace and the facts surrounding the case. Obviously, more complex cases have more extensive retainers.
Finally, security retainers are convenient for both the attorney and the client because the billing process becomes more efficient and less hostile. The attorney does not need to contact the client for every billable action (i.e. drafting pleadings and motions, court time, etc.), and the client doesn’t feel badgered by the attorney whenever an action occurs in the client’s case.