Retainer Agreement – Criminal Defense

Retainer Agreement — Criminal Defense

Law Firm: [________________________________] ("Firm")
Address: [________________________________]
Telephone: [____________________] Email: [________________________________]
State Bar No.: [____________________]

Client Name: [________________________________] ("Client")
Date of Birth: [__/__/____] Address: [________________________________]
Client Telephone: [____________________] Client Email: [________________________________]

Court: [________________________________] Case No.: [____________________]
Charge(s): [________________________________]
Arresting Agency: [________________________________] Arrest Date (if applicable): [__/__/____]
Date of Agreement: [__/__/____]

PART I — SCOPE OF REPRESENTATION

The Firm's representation is limited to the specific charges and proceedings indicated below. Any additional matters require a separate written agreement.

Phase Coverage (Check All Included in This Agreement)

Excluded from This Agreement (require new written agreement):
☐ Direct appeal to Court of Appeals or state Supreme Court
☐ Federal habeas corpus (28 U.S.C. § 2254 / § 2255)
☐ Post-conviction relief motions (PCR/PCRA)
☐ Expungement or record sealing
☐ Civil forfeiture proceedings (separate from criminal case)
☐ DMV / administrative license suspension hearing
☐ Related civil matters
☐ Other: [________________________________]

PART II — NATURE OF FEE ARRANGEMENT

Select the applicable fee structure (only one):

☐ Option A — Flat Fee (All Phases Checked Above)

Total flat fee for all phases checked in Part I: $[____________________]

This flat fee is ☐ a true retainer (earned on receipt) ☐ an advance payment fee.

• If true retainer: This fee compensates the Firm for its availability and commitment to this matter. It is earned when received and is not subject to refund regardless of the outcome or the stages reached in the proceeding, provided the Firm performs the scope of services checked above. [California note: Under CRPC 1.5(d), a "true retainer" is a fee paid to secure the Firm's availability. It may be deposited in the Firm's operating account. Client must consent in writing to the non-refundability.]

• If advance payment fee: This fee is an advance payment for future services. It must be deposited in the Firm's IOLTA trust account. As the Firm renders services, fees will be transferred from trust to the Firm's operating account. Any unearned portion remaining at the conclusion of representation will be refunded.

☐ Option B — Hourly Billing

See rate table in Part III. An initial retainer (trust deposit) of $[____________________] is required. Time billed against the retainer; Client replenishes as needed.

☐ Option C — Hybrid (Flat Fee Per Phase)

Flat fees per phase as specified in the Phase Coverage table in Part I. Additional phases require separate written authorization.

PART III — BILLING RATES (If Hourly — Option B)

Minimum billing increment: [0.1] hour (6-minute increments).
Travel time: ☐ Full rate ☐ [____]% of hourly rate.

PART IV — BENCH TRIAL vs. JURY TRIAL RATE DISTINCTION

Important: Criminal defense representation through jury trial is significantly more time-intensive than bench trial representation. If Client exercises the right to a jury trial, the Firm will require:

☐ Additional flat fee for jury trial (above any bench trial flat fee or phase fee):
Additional jury trial fee: $[____________________] (covers jury selection [voir dire], additional trial preparation, and additional trial days beyond [____] days)

☐ Per-day trial rate (in addition to flat fee or hourly fees already paid):
Bench trial day: $[____________________] per day
Jury trial day: $[____________________] per day
First day of jury trial (includes voir dire): $[____________________]

☐ No distinction — jury trial fee is included in the flat fee checked in Part II.

PART V — BAIL / BOND — SEPARATE FROM ATTORNEY FEES

Bail and bond are entirely separate from attorney fees. The Firm does not arrange or guarantee bail. If Client requires assistance with bail:

• Cash bail is paid directly to the court; attorney fees are a separate obligation.
• Bail bond is obtained from a licensed bail bondsman (premium typically 10–15% of bond amount, non-refundable); the Firm does not receive bail bond premiums.
• Property bond requires separate legal and court proceedings; may require additional legal services at additional fee.
• Own Recognizance (OR) / ROR release: The Firm will advocate for the lowest possible bail or OR release at the bail hearing.

Client acknowledges that inability to post bail does not affect the Firm's obligation to provide vigorous representation, and the Firm's fees are not contingent on or related to bail or bond arrangements.

PART VI — RETAINER DEPOSIT AND TRUST ACCOUNT

Retainer Deposit (if applicable to selected fee structure): $[____________________]

The retainer deposit will be placed in the Firm's IOLTA trust account, maintained separately from the Firm's operating funds. Funds are transferred to the operating account as fees are earned. Any unearned balance will be refunded promptly upon conclusion or termination of representation.

Non-Refundable Fee (if true retainer under Option A is selected):

Client acknowledges that the fee designated as a "true retainer" was disclosed as non-refundable before signing this Agreement, and that Client had the opportunity to consult independent counsel regarding this designation. [State-specific: CA clients note CRPC 1.5(d) and Cal. Bar advisory materials.]

PART VII — COSTS AND THIRD-PARTY EXPENSES

Client is responsible for all costs and expenses related to the defense, including:

☐ Investigator fees (beyond any retainer)
☐ Expert witness fees (forensic, psychological, medical, scientific)
☐ Court reporter fees and deposition transcripts
☐ Trial technology and demonstrative exhibit preparation
☐ Document reproduction and discovery costs
☐ Witness subpoena and service fees
☐ Interpreter / translation services
☐ Travel expenses for out-of-county proceedings
☐ Lab analysis / independent testing costs
☐ Polygraph examination (if requested by Client)
☐ Other: [________________________________]

Authorization Threshold: Costs exceeding $[____________________] per item require prior written Client authorization, except in emergency circumstances.

Firm's Right to Advance Costs: The Firm may advance costs subject to reimbursement. Advancing costs does not make the Firm responsible for ultimate payment; Client remains liable for all costs.

PART VIII — COLLATERAL CONSEQUENCES COUNSELING

Criminal convictions carry collateral consequences beyond incarceration and fines. These may include:

☐ Immigration consequences (deportation, inadmissibility, visa/green card revocation — Client should consult an immigration attorney)
☐ Professional license suspension or revocation
☐ Loss of firearms rights (state and federal)
☐ Sex offender registration
☐ DNA database inclusion
☐ Loss of public benefits (housing, food assistance, student loans)
☐ Employment background check impacts
☐ Civil liability arising from the same conduct

The Firm will advise Client regarding known and reasonably foreseeable collateral consequences of any plea or conviction, but the Firm's scope is primarily criminal defense. Client is encouraged to consult specialists (immigration attorney, licensing attorney) for guidance on specific collateral consequences.

PART IX — CLIENT'S EXCLUSIVE DECISION-MAKING RIGHTS

Under ABA Model Rule 1.2(a) and the Sixth Amendment, the following decisions belong exclusively to Client:

☐ Whether to plead guilty, no contest, or not guilty
☐ Whether to waive the right to a jury trial and proceed by bench trial
☐ Whether to testify at trial
☐ Whether to accept or reject a plea offer
☐ Whether to appeal a conviction or sentence

The Firm will provide professional advice and a recommendation for each of these decisions. The Firm will document all plea offers in writing, communicate each offer to Client, and record Client's decision in writing. The Firm will never accept a plea or waive a jury trial without Client's express written consent.

PART X — PLEA NEGOTIATIONS AND DOCUMENTATION

The Firm will document all material plea negotiations as follows:

1. All prosecution plea offers will be communicated to Client in writing (or verbally with a contemporaneous written record).
2. The Firm will explain the terms, implications, and the Firm's recommendation regarding each offer.
3. Client's decision to accept or reject each offer will be documented with Client's signature or initials.
4. If Client declines a plea offer against the Firm's recommendation, Client's decision will be confirmed in a separate written acknowledgment.

PART XI — WITHDRAWAL RIGHTS AND LIMITATIONS

The Firm's right to withdraw is subject to significant limitations in criminal cases:

• Once the Firm has entered an appearance in court proceedings, withdrawal requires court approval.
• Courts frequently deny withdrawal requests made on the eve of trial, during trial, or in circumstances that would prejudice Client or delay proceedings.
• The Sixth Amendment guarantee of effective assistance of counsel imposes obligations on the Firm that cannot be abandoned simply by withdrawal.

Grounds for Withdrawal (subject to court approval):
☐ Nonpayment of fees after notice and opportunity to cure
☐ Client's failure to cooperate or communicate
☐ Client's insistence on presenting false testimony or pursuing a position involving fraud
☐ Irreconcilable conflict between Client and attorney over strategy
☐ Other ethical grounds under applicable Rules of Professional Conduct

Withdrawal Procedure: The Firm will provide the maximum feasible advance notice, assist in transition to new counsel, and comply with all court orders regarding withdrawal. Client's file will be provided to new counsel within [____] days of court approval of withdrawal.

Relationship to Public Defender: If Client is financially eligible for the public defender, Client may at any time seek appointment of the public defender, subject to court approval and financial eligibility requirements. This Agreement does not prevent Client from seeking court-appointed counsel.

PART XII — INVOICING AND FINAL ACCOUNTING

Flat Fee Cases (Option A/C):

• Invoices are not typically issued for flat-fee phases; however, Client may request a statement of services rendered at any time.
• If any phase requires extraordinary effort significantly beyond what was reasonably contemplated, the Firm will advise Client in advance before incurring additional fees.

Hourly Cases (Option B):

• Monthly itemized invoices issued on the [____] day of each month.
• Payment of amounts exceeding trust balance is due within [____] days.
• Past-due amounts accrue interest at [____]% per month (or maximum lawful rate).

Final Accounting: At the conclusion of representation, the Firm will provide a final accounting and refund any unearned advance payment (Option B or advance-fee Option A) within [____] days of the matter's conclusion.

PART XIII — COMMUNICATION AND CONFIDENTIALITY

• All communications between Client and the Firm are privileged.
• Client should not discuss the case with family members, friends, cellmates, or co-defendants without the Firm's advice, as these communications are not protected by privilege.
• Do not post about the case on social media — such posts may be used by the prosecution.
• The Firm's primary contact for Client: [____________________] — [____________________] (phone)
• Emergency after-hours contact: [____________________]

PART XIV — TERMINATION BY CLIENT

Client may terminate this Agreement at any time by providing written notice:

Flat Fee (True Retainer, Option A): If the fee was designated as a true retainer, no refund is owed unless the Firm failed to perform the agreed scope of services.

Advance Payment Fee or Hourly (Options A advance / B / C): The Firm will refund any unearned advance payment within [____] days of written termination, after deducting fees earned and costs incurred through the termination date.

Court Proceedings Pending: If trial or a hearing is imminent, Client acknowledges that terminating the attorney-client relationship at that stage may not result in the court granting a continuance, and Client may need to proceed pro se (without counsel) or immediately retain new counsel.

PART XV — DISPUTE RESOLUTION AND GOVERNING LAW

Fee disputes will be submitted to the [State/County Bar Fee Arbitration Program] before court proceedings. This Agreement is governed by the laws of [State]; venue in [County], [State].

PART XVI — ACKNOWLEDGMENT AND SIGNATURES

Client acknowledges:

☐ I have read and understand this Retainer Agreement in its entirety.
☐ I understand the scope of representation (phases covered and excluded).
☐ I understand whether the fee is a non-refundable true retainer or a refundable advance payment.
☐ I understand the difference between bench trial and jury trial fees.
☐ I understand that bail and bond are entirely separate from attorney fees.
☐ I understand my exclusive right to make decisions regarding plea, trial mode, and testimony.
☐ I understand the Firm's right to withdraw is limited by court approval requirements.
☐ I have had an opportunity to ask questions, and all my questions have been answered.
☐ I am entering into this Agreement voluntarily and not under duress.

CLIENT:

Printed Name: [________________________________]

Signature: [________________________________] Date: [__/__/____]

ATTORNEY (on behalf of Firm):

Printed Name: [________________________________]

Signature: [________________________________] Date: [__/__/____]

Firm: [________________________________] Bar No.: [____________________]

Sources and References: ABA Model Rules 1.2(a), 1.5, 1.15, 1.16 (americanbar.org); U.S. Const. amend. VI; California Lawyers Association on non-refundable retainers (calawyers.org); CA State Bar Advisory on advance payments (calbar.ca.gov); North Carolina State Bar on non-refundable fees (ncbar.gov); SF Bar on refundable retainers (sfbar.org).