Why Does Mr. Forman Charge a Retainer for Family Law Work?

Like almost all family law attorneys, I charge retainers for domestic relations work.  There are two reasons we do so.

First, once an attorneys services are completed there may be problems collecting payment.  This is especially true in legal areas like family law, in which attorneys are retained to handle a specific legal problem with the expectation that little or no further representation will be needed once the task is completed.  Charging clients retainers, against which I bill as I do the work I have been retained to do, serves two purposes: 1) insuring that the client actually has funds to do the work he or she is retaining me to do; 2) insuring that I will get paid for the work I have been retained to do without having to pursue collection proceedings once the work is completed.

Further, once an attorney has formally appeared in litigation, that attorney cannot terminate the representation until relieved by the court. See Rule 11(b), SCRCP.  Thus an attorney handling a case that has been filed in the court must continue working even if that attorney is not being paid–at least until that attorney has been relieved by court order.  For this reason, I charge much higher retainers, often by a factor of two or more, when being retained to appear in formal litigation–e.g. filing or defending a lawsuit.  Attorneys are also required to pay costs associated with litigation, such as filing fees, motion fees and transcript or court reporter fees.  A retainer is how attorneys insure there will be funds to pay these costs.

Initially, it is difficult to tell how complicated and involved most family law tasks will be.  Sometimes matters that might seem uncontested become contested; other times cases that might appear very contested resolve quite quickly.  Rather than request a retainer that would realistically cover the work needed for a very contested case and a lengthy trial, I try to quote retainers that will cover the first few months of work or take me past the first contested hearing.  However my fee agreements contain an “evergreen” clause, requiring clients to provide additional funds before the retainer balance gets to $0.00 and requiring additional retainer when the case is set for trial.  This way clients can retain me without having to come up with or commit to the fees necessary for trial.

Clients seeking to retain me should expect to pay an initial retainer.  That retainer will be much higher if I am being asked to file a lawsuit or defend or appear in a lawsuit that has already been filed.