Can a lawyer charge a client a non-refundable retainer for a particular case or service?
Apply this to your situation
This page answers the general question as of 1995. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer asked whether he could enter into written fee agreements for particular cases or services that required clients to pay non-refundable retainers. The committee first narrowed the question: it addressed only a fee paid in advance for particular services, expressly not a "general retainer" paid solely to secure the lawyer's availability over a period of time.
The committee explained the default rule: when a client pays an advance fee for a specific service or case, the money does not belong to the lawyer immediately but must be earned as services are provided. Until earned, the funds belong to the client, remain subject to refund to the extent unearned, and must be kept in a client trust account under DR 9-102. The question was whether the lawyer could change that default by labeling some or all of the retainer "non-refundable."
The committee concluded he could not. A truly non-refundable fee for a specific engagement would conflict with public policy by interfering with the client's right to discharge the lawyer at any time, even without cause, quoting Smith v. Binder. It also identified conflicts with several disciplinary rules: DR 2-106(A) (an attorney may not charge a clearly excessive fee), since the fee could be excessive if the client discharged the lawyer before substantial work was done; and DR 2-110(B)(4) and (A)(3) (a lawyer must withdraw when discharged and must promptly refund any unearned advance fee). The committee noted the New York Court of Appeals had reached the same conclusion in Matter of Cooperman, suspending a lawyer for using non-refundable fee arrangements, while courts following Cooperman distinguished the general retainer.
Currency note
This opinion was issued in 1995, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Can a lawyer charge a non-refundable retainer for a specific case?
A: No. The committee concluded that charging a non-refundable retainer for a particular service or case would be unethical, because an advance fee for specific work is earned only as the work is done.
Q: Where must the advance fee be held until it is earned?
A: In a client trust account. The committee said the unearned funds belong to the client and are subject to the rules for safeguarding client funds under DR 9-102.
Q: Does this opinion address general retainers paid to secure availability?
A: No. The committee expressly limited its conclusion to advance fees for particular services and took no position on a general retainer paid solely to ensure the lawyer's availability over a period of time.
Background and rules framework
The opinion applied the predecessor disciplinary rules DR 2-106(A) (prohibition on clearly excessive fees), corresponding to Model Rule 1.5; DR 2-110(B)(4) and (A)(3) (mandatory withdrawal on discharge and prompt refund of unearned advance fees), corresponding to Model Rule 1.16; and DR 9-102 (safeguarding client funds in trust), corresponding to Model Rule 1.15. It also relied on Smith v. Binder and Matter of Cooperman.
Citations and references
Rules of Professional Conduct:
- Model Rule 1.5 / DR 2-106(A) (clearly excessive fees)
- Model Rule 1.16 / DR 2-110(B)(4), (A)(3) (withdrawal on discharge; refund of unearned fees)
- Model Rule 1.15 / DR 9-102 (safeguarding client funds in trust)
Cases:
- Smith v. Binder, 20 Mass. App. Ct. 21 (1985) (client's right to discharge counsel; no pay for services not rendered)
- Matter of Cooperman, 83 N.Y.2d 465, 633 N.E.2d 1069 (1994) (non-refundable retainers clash with public policy)
- Wong v. Michael Kennedy, P.C., 853 F. Supp. 73 (E.D.N.Y. 1994) (following Cooperman; distinguishing general retainer)
See also
- MA Bar Ethics Op. 99-1: Suing a former client pro se for fees
- MA Bar Ethics Op. 96-3: Revealing client confidences in a withdrawal motion
Source
Get today's answer for your situation
You just read a 1995 opinion on this question. Ezel checks the current Massachusetts Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.