What Does a Retainer Really Mean in Law?

Many clients believe a "retainer" is a shield or guarantee of loyalty. In reality, the word has two distinct legal meanings.

True Retainer (Rare)

Paid solely to secure an attorney’s availability.

Earned when paid and generally non-refundable.

Sometimes analogized to a gift, because no services are tied to the payment.

Restricted in many jurisdictions due to client protection rules.

Security Retainer (Common)

Advance payment against future services.

Funds remain the client’s property until earned.

Must be placed in a client trust account (IOLTA) under ABA Model Rule 1.15.

Attorney must provide invoices and accountings as funds are withdrawn.

Any unused balance must be refunded.

Why the Distinction Matters
Confusion arises when clients assume all retainers are "true retainers." Most retainers today are security retainers. That means your money is still yours until the attorney earns it. If you have records of a trust account deposit and billing against it, you can rebut the presumption that your payment was a non-refundable gift.

Evidence to Keep
(1) Signed retainer agreement.
(2) Itemized invoices showing hours worked and amounts applied.
(3) Trust account (IOLTA) statements from the attorney’s office.
(4) Confirmation of refund for unused funds.

Citations & Authorities

ABA Model Rule 1.15 (safekeeping client funds).

ABA Model Rule 1.5 (reasonableness of fees).

In re Cooperman, 83 N.Y.2d 465 (1994) – invalidating non-refundable retainers that were not true availability fees.

Corpus Juris Secundum: Attorneys § 328 – distinguishing types of retainers.

Conclusion
A true retainer may resemble a gift. But most retainers are security retainers, where funds remain client property until earned. Keeping invoices and trust statements is the evidence you need to overcome presumption.

Attorneys are not saviors bound only by an oath. They are contractors bound by agreements and accounting.