Forgoing initial retainers in the expectation of payment later

Posted Tuesday, June 8th, 2010 by Gregory Forman
Filed under Attorney-Client Relations, Attorney's Fees, Not South Carolina Specific, Of Interest to Family Law Attorneys

A few of the new attorneys in my suite asked for my views on forgoing initial retainers in family court cases in which one might expect to be awarded attorneys fees from the other side at the temporary hearing.  They expressed the view that my thoughts might be useful to others, so here they are.

I volunteer to handle a few pro bono cases each year but believe it’s important to keep clear the demarcation between my pro bono work and paying work.  Though I will often quote a lower retainer if I believe an award of fees is likely at the temporary hearing, for four reasons I always require retainers in family court cases that I am not handling on a pro bono basis.

First, there is always the chance that the parties may reconcile or that my client might decide to dismiss the action.  If that occurs, there is no good way to collect on my bill.  Second, my client may not be telling me the “full story” and a case which appears to have strong potential for an award of attorneys fees may not have such potential once I learn more.  Third, I find that having the client have some funds invested in the litigation helps ensure client cooperation.  Clients who see their attorney as a “free” resource will sometimes fail to cooperate, take unrealistic litigation positions, or require their attorney to handle tasks that they are capable of handling themselves.

Finally, one will sometimes receive a settlement proposal that is outstanding on other issues of concern to the client but makes little or no allowance for the payment of my fee.  Such a proposal might be something the client should accept but any advice to accept the proposal runs counter to the attorney’s interest in getting paid for his or her work.  I have seen settlement negotiations stall or break down because the opposing party and that party’s attorney are fighting over how fees will get paid.  I wish to avoid situations in which my ability to resolve a dispute and my ability to get paid for my work conflict with each other.

Sometimes potential litigants who have no money contact me and want me to handle their case with no initial retainer.  Unless I chose to handle the matter as part of my pro bono work, I look to the client to pay some initial retainer.  The folks who come to attorneys with sad stories of great injustice and limited funds are basically seeking to have those attorneys work for them on credit.  I figure such litigants should have some support network of family and friends who can loan them the funds for the retainer.  If such litigants lack a support network, it’s often a warning sign that the litigant has substantial issues that he or she is failing to be forthcoming about.  If such litigants have this support network, I question why they would expect an attorney they have just met (or never met) to handle their dispute with the promise of payment when their support network won’t extend them credit.

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