Can a lawyer use a written prepaid retainer agreement for ongoing consultation and advice, with defined limits on the services covered?

Plain-English summary

The inquiry described a written "Retainer Agreement" under which, for a stipulated fee payable in advance, a client employs the attorney for consultation and advice during office hours on matters that involve or may involve legal problems. The agreement specified certain services not covered (to be performed only at the client's request on a separately agreed basis), provided that by accepting the retainer the attorney recognized that the attorney-client relationship existed during the agreement and would not handle any claim or suit against the client while it was in effect, and provided that its execution would not prohibit the client from seeking counsel or legal services from any other lawyer.

The committee was unanimous that the use of such a retainer agreement does not violate any of the Texas Canons. It added that it was not called upon to express, and did not express, any opinion on the necessity for or desirability of such an agreement. The vote was 9-0.

Currency note

This opinion was issued in 1950, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. Subsequent rule amendments or later opinions may have changed the analysis; fee and retainer arrangements are now addressed by ABA Model Rule 1.5. Treat this page as historical context, not current guidance.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: Could a lawyer charge a prepaid retainer for ongoing consultation and advice?

A: Yes. The committee held unanimously (9-0) that a written retainer agreement for a stipulated advance fee covering consultation and advice did not violate the Canons.

Q: Did the agreement's limits on covered services raise a problem?

A: No. The committee accepted the agreement's structure, which excluded certain services unless separately requested and agreed, barred the attorney from acting against the client during the term, and let the client still use other lawyers.

Q: Did the committee endorse using such agreements?

A: No. It said it was not called upon to, and did not, express any opinion on whether such an agreement was necessary or desirable; it ruled only that using one was not unethical.

Background and rules framework

The opinion interprets former Texas Canon 11 (compensation and fees), applied to a written prepaid retainer for ongoing consultation. The modern analog is ABA Model Rule 1.5 (fees), which governs fee agreements, including advance fees and the scope of the engagement.

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees), as the modern analog
• Texas Canon 11 (compensation and fees)

See also

• TX Ethics Op. 53: Power-of-Attorney Clause Assuming All Costs
• TX Ethics Op. 61: Sharing Bond-Transcript Pay With a County Auditor

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-27/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_27.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Does the use, by a practicing attorney, of a written "Retainer Agreement" whereby for a stipulated fee, payable in advance, the client employs the attorney for the purpose of consultation and advice, during office hours, on matters which involve, or may involve, legal problems of the client, violate the Canons of Ethics of the State Bar of Texas? Such "Retainer Agreement" specifies certain types of service which are not covered by the agreement, and provides that any of those services will be performed by the attorney only at the request of the client, upon a basis previously agreed upon between said client and attorney. Such "Retainer Agreement" further provides that by the acceptance of the retainer fee the attorney recognizes that the relationship of attorney and client exists during the life of the agreement, and said attorney will not handle any claim or suit against such Client while the agreement is in effect. Such "Retainer Agreement" further provides that its execution shall not prohibit the client from seeking counsel, advice or legal services from any other lawyer.

18 Baylor L. Rev. 207 (1966)

RETAINER AGREEMENTS
An attorney may use a written "Retainer Agreement" in which he is employed by a client, for a stipulated fee payable in advance, to consult with and advise him as to his legal problems, and which sets out certain rights and limitations pertaining to the arrangement.

Canon 11.

It is the unanimous opinion of the committee that the use of such a "Retainer Agreement" does not violate any of the Canons of Ethics of the State Bar of Texas.

The committee was not called upon to express, and does not express, any opinion as to the necessity for, nor the desirability of, the use of such an agreement. (9-0)

Tex. Comm. On Professional Ethics, Op. 27 (1950)