Under Washington State laws, what is a retainer fee? Here’s my point of view.
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WASHINGTON STATE COURT RULES: RULES OF PROFESSIONAL CONDUCT
The Washington State Rules of Professional Conduct (RPC) guide attorneys in their practice of law by, inter alia, regulating their professional conduct. According to the RPC — Fundamental Principles of Professional Conduct:
…
The Rules of Professional Conduct point the way to the aspiring lawyer and provide standards by which to judge the transgressor. Each lawyer must find within his or her own conscience the touchstone against which to test the extent to which his or her actions should rise above minimum standards. But in the last analysis it is the desire for the respect and confidence of the members of the legal profession and the society which the lawyer serves that should provide to a lawyer the incentive for the highest possible degree of ethical conduct. The possible loss of that respect and confidence is the ultimate sanction. So long as its practitioners are guided by these principles, the law will continue to be a noble profession. This is its greatness and its strength, which permit of no compromise.
RPC, Fundamental Principles of Professional Conduct. One of the primary topics under the RPC is “Fees,” and one common type of fee is the retainer fee.
RPC 1.5: THE RETAINER FEE
The retainer fee “is 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.” RPC 1.5. Importantly, a retainer fee:
• must be agreed to in writing.
• must be signed by the client.
• is the lawyer’s property as soon as it is received and is not to be put into the lawyer’s trust account, unless otherwise agreed.
See id. This fee structure is sometimes referred to as an “availability retainer,” “engagement retainer,” “true retainer,” “general retainer,” or “classic retainer.” See id. (Washington Comment 13).
RETAINER FEE SECURES AVAILABILITY ALONE
As mentioned above, retainer fees in Washington State are also known as “availability retainers.” That’s because “[a] retainer secures availability alone, i.e., it presumes that the lawyer is to be additionally compensated for any actual work performed.” Id. (Washington Comment 13). Thus, “a payment purportedly made to secure a lawyer’s availability, but that will be applied to the client’s account as the lawyer renders services, is not a retainer under … [RPC 1.5](f)(1).” Id. (Washington Comment 13).
GOOD PRACTICES
For those drafting retainers, “[a] written retainer agreement should clearly specify the time period or purpose of the lawyer’s availability, that the client will be separately charged for any services provided, and that the lawyer will treat the payment as the lawyer’s property immediately on receipt and will not deposit the fee into a trust account.” Id. (Washington Comment 13).
CONCLUSION
A retainer fee “is 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.” Id.
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