A retainer is used to secure the services of a lawyer, to ensure that a lawyer will be available to render legal services. It is also used to secure the exclusive services of a lawyer against ones competing interests. To mention a few. Let us have a look at some definitions of retainer –
“retainer, n. (18c) 1. A client’s authorization for a lawyer to act in a case <the attorney needed an express retainer before making a settlement offer>. [Cases: Attorney and Client – 64.] 2. A fee that a client pays to a lawyer simply to be available when the client needs legal help during a specified period or on a specified matter. [Cases: Attorney and Client – 137.] 3. A lump-sum fee paid by the client to engage a lawyer at the outset of a matter. – Also termed engagement fee. 4. An advance payment of fees for work that the lawyer will perform in the future. – Also termed retaining fee. Cf. ATTORNEY’S FEES. [Cases: Attorney and Client – 137.] – retain, vb.
“Over the years, attorneys have used the term ‘retainer’ in so many conflicting senses that it should be banished from the legal vocabulary …. If some primordial urge drives you to use the term ‘retainer,’ at least explain what you mean in terms that both you and the client will understand.”
Mortimer D. Schwartz & Richard C. Wydick, Problems in Legal Ethics 100, 101 (2d ed. 1988).
general retainer. (18c) A retainer for a specific length of time rather than for a specific project. [Cases: Attorney and Client – 137.]
special retainer. (18c) A retainer for a specific case or project. [Cases: Attorney and Client – 137.]”1
“…
“retainer” means an agreement by a lawyer to give his services to a client ;
“general retainer” means a retainer which covers the client’s work generally ;
and
“special retainer” means a retainer which covers a particular matter of the client.”2
“…
“General retainer” means a contract between a legal practitioner and his client for all legal service, business or representation or as often as the client requires for same ;
“Specific retainer” means a contract between a legal practitioner and his client over prescribed or identified areas of legal service, business or representation ;”3
It is important to note that where a retainer is signed in respect to litigation, each instruction to litigate is to be charged separately. Rules of Professional Conduct for Legal Practitioners, 2023 is very clear on that, where it provides –
“…
(2) Where a lawyer accepts a retainer in respect of litigation, he shall be separately instructed and separately remunerated by fees for each piece of work, provided that a lawyer shall not –
(a) represent or undertake to represent a client for all his litigation or a part of it on an agreed lump sum over a period of time ; or
(b) accept instructions from a client on terms that a particular class of court cases shall be done at a fixed fee in each case irrespective of the circumstances of each case.”4
The interest of a client who has retained the services of a lawyer should be protected as long as the retainer is in force or as may be agreed by the parties. Rules of Professional Conduct for Legal Practitioners, 2023, provides –
“(3) A lawyer who accepts a retainer shall not-
(a) in the case of a general retainer, advise on , or appeal in any proceedings detrimental to the interest of the client paying the retainer during the period of the retainer ; and
(b) in the case of a special retainer, accept instructions in any matter forming the subject matter of the retainer which will involve advising or arguing against the interest of the client paying the retainer.”5
The Framework of a Basic Retainer is Reproduced as Follows –
AGREEMENT FOR RETAINER
This agreement for retainer is made …………… day of ………………….., 2024.
Between
Name and address (‘The Client’) of the one part.
And
Name and address (‘The Attorney’) on the other part.
Whereas
The client is desirous of retaining the legal services of the attorney in relation to …………….
The retainer agreement is based on the following terms and conditions –
1. Nature and scope of retainer
2. Duties of the Parties
Client
…
Attorney
…
3. Extra skill, time or expertise
4. Term
5. Retainer fee
Apart from stating the fee, it may also state the manner the fee is to be paid. For example whether in full or in part.
6. Solicitor fee
This will apply where counsel renders service in property transaction as solicitor.
7. Confidentiality
8. Termination
9. Notices
10. Dispute resolution
Signed by the Parties-
In the Presence of:
________
Other terms and conditions may be included depending on the nature of client’s business, or the type of representation client may seek.
Thank you.
Stephanie Orji lawyers at Heptagon & Associates, a full service law firm in Abuja, Nigeria.
12-September-2024.