Retainers -- What the Heck?

Once you start calling around for attorneys to represent you in a domestic relations case in Colorado, you will almost immediately hear the term "retainer." Likely, it will be the first time you hear that word. What the heck is a retainer? Why do I have to pay one? How does it work?

In Colorado divorce, legal separation and allocation of parental responsibility cases, when you hire a lawyer, they will require a retainer payment. A retainer is monies that you pay up front before a lawyer can enter their appearance (i.e. represent you) in your case. This amount will differ from attorney to attorney. Typically, the higher the retainer, the more experienced the attorney is.

Once a retainer is paid, it goes into a trust or COLTAF account that is set up by the attorney or the firm. From there, there are typically two ways in which a firm or an attorney will handle payments and costs for your case.

The first kind of retainer is called an "ever-green" retainer. This means that once the retainer is paid, nothing is billed against it and it simply sits in the trust account until your case or representation is completed. Then, it is refunded back to you. In the meantime, you will be sent invoices that you will be expected to pay in full to maintain your representation.

The second kind of retainer is one that is put into a trust account and then every invoice for costs or attorney fees is subtracted from the retainer until the retainer is empty. When the retainer is diminished, you will be expected to replenish or re-pay your retainer in order to maintain representation.

Which is better? Well, they both have their pros and cons. With an ever-green retainer, you do have to pay every month (sometimes in large amounts depending on what is going on in your case), but you are more or less guaranteed some kind of refund at the end. In this way, these kinds of retainers work as kind of a deposit for your case so that the lawyer can make sure that their monthly bills are paid. With the other, you don't have to worry about monthly bills, but you will certainly have to replenish your retainer probably every few months depending on what is going on in your case.

Attorneys are required to have a trust account balance for them to represent you. Family law attorneys are prohibited from working on contingency like many civil and other such lawyers can. Contingency is where an attorney only gets paid if you get paid. More or less, if they win for you then you pay them and if you don't win, you don't pay. In Colorado, Courts do not want one party or parent to think that they "won" because no one really "wins" in divorce or custody disagreements. As such, parties are expected to pay their attorneys for their completed work.

During your representation with a firm or attorney, you will be billed for two things: attorney/paralegal time and costs. Attorney and paralegal time are billed by tenths of the hour at the attorney's or paralegal's hourly rate. Costs are things like electronic filings with the Court, certified mailings, process server fees, etc.

Some firms have additional retainer requirements. I've worked for firms that have clients pay for an extra retainer if their case goes to trial versus if they settle. I have worked for firms that have clients pay a higher retainer on the onset and then lower retainers as their case progresses.

To find out how your firm or attorney handles their retainers, you can (and should!) consult with them directly and refer to your Fee Agreement.