Would You Like Some Garnish on that Retainer?

EVER SINCE the Colorado Supreme Court’s decision in Sather and its subsequent codification in Colo. RPC 1.5(f), attorneys have come to grips with the reality that the fattest retainer is, in fact, no more than a security deposit for the last month’s legal “rent.” So long as clients have an absolute right to discharge counsel, a retainer in a lawyer’s trust account cannot be booked as the equivalent of fees to come.

Whatever misgivings lawyers may have about the treatment of general retainers and flat fees in Rule 1.5(f), it is difficult to condone the court’s denouncement of “nonrefundable retainers.” See In re Sather, 3 P.3d 403 (Colo. 2000). The Rules of Professional Conduct are by design client-centric, and few things are more central to a client’s interest than not having to pay for legal work never performed.

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