Introduction and Objectives
The objectives of the Retainers module are:
- To identify the types of retainers and what they should contain.
- To understand the requirements relating to contingent fee agreements.
Navigating this Module
This module features these components:
Written Material: The module describes the nature and purpose of specific money retainers as well as the nature and requirements of contingent fee agreements.
Test: The test for this module features a fact pattern followed by two parts, a question and a justification. You must get answers to both parts correct in order to complete the test. If you get one or both parts incorrect, you will get an opportunity to reattempt the test. Test questions are drawn from the written material only and not the Additional Resources or the footnotes to the written material.
Appendices and Additional Resources: Additional valuable resources are available, some of which are included in the Appendices and Additional Resources section of this module. You are not tested on this additional material, although you are encouraged to review any resources that best suit the nature of your practice or if you experience difficulty comprehending the material that will be tested.
Although we aim to present a comprehensive module, this module is not exhaustive. This module is not a substitute for exercising professional judgment and does not constitute legal advice.
What is a Retainer?
The word "retainer" has several meanings. For the purposes of this module "retainer" can mean:
- the act, by a client, of engaging a lawyer to provide professional services;
- the document that sets out the terms of engagement between the lawyer and the client for professional services (i.e., a “retainer letter” or “retainer agreement”); or
- funds paid by the client to the lawyer in trust in order to secure the lawyer's professional services (i.e., a “money retainer”).
This module will focus on the second and third definitions.
General Money Retainers
Although it is possible to have a general money retainer (GMR), they are extremely rare, and you should be cautious about relying on one. The remainder of this module discusses specific money retainers.
A GMR is a lump sum of money paid to the lawyer by a client, but not for the purpose of performing specific work.
A bona fide GMR is paid into the lawyer's general account, not a trust account.
An example of a GMR sample from LSBC is attached (Appendix A).
Caution: a GMR is rife with potential for misunderstanding. (When is the lawyer allowed to draw upon the GMR? How much? What work is to be done? How long does it last?) You have the onus of proving that a retainer is a bona fide GMR.
Limited Scope Retainers
Some lawyers also use Limited Scope Retainers (LSR) Such a retainer is defined by BC Code 11.1, and cover the provision of legal services for part, but not all of the client's legal matters. A more thorough review of the restrictions and requirements of LSR is set out in the Fall 2017 Bencher's Bulletin, and should be reviewed prior to using such a retainer.