Is a retainer the same thing as an advance fee deposit?

Upon entering into an agreement to represent a client, attorneys and law firms frequently ask for the client to pay money in advance for fees and costs.^[1][2] In many states, attorneys refer to this advance payment as a “retainer”.^[1][2][3]

In other states, however, the term “retainer” is defined in the Rules of Professional Conduct as  “a fee that a client pays to a lawyer to be available to the client during a specified period or on a specified matter, in addition to and apart from any compensation for legal services performed.”^[2][4] Attorneys and law firms in these states refer to advance payments of fees and costs as “advance fee deposits” instead.^[5]

In California, there are four types of retainers.^[3] There is the advanced fee retainer, which is made up of fees and costs paid in advance. There is the security deposit retainer, which is money held in security to be used in the event the client fails to pay an invoice or cost. There is the replenishing security deposit retainer, (also called an evergreen retainer) which is a security deposit retainer that must be maintained at a specific amount, and must be replenished by the client if it drops below that amount. And finally, there is a retainer, a fee that is paid to an attorney to ensure that they will be available to the client in the future.^[3]

Because the term “retainer” can have many different meanings, it is important that your fee agreement define the term as specifically as possible, and that the definition you use in the agreement does not violate your local and state rules of professional conduct.^[2]

References

1. How to Hire an Attorney on Retainer
2. Are You Really Taking a “Retainer”?
3. When Choosing a Retainer Option, 4 Types Stand Out
4. Court Rules
5. Managing Clients Trust Accounts