Q: Can I hire a lawyer & have one on back with retainer. If I dont use my back up lawyer, do I get my retainer back?
In Missouri, as in other states, a lawyer's obligation to return unused retainer fees to a client is guided by the state's rules of professional conduct, the specifics of the fee agreement you signed, and any applicable state laws or regulations.
According to Rule 4-1.16(d) of the Missouri Rules of Professional Conduct, upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as refunding any advance payment of fee or expense that has not been earned or incurred.
A key factor is the nature of the retainer fee. Retainer fees can be classified into three main types:
1. A "classic" or "true" retainer, which is a fee paid to reserve a lawyer's services for a certain period and isn't tied to any specific work. This type of retainer is typically not refundable.
2. A "security" retainer, which is a deposit against which future costs and fees are billed. The unused portion of a security retainer is usually refundable.
3. An "advance" or "prepaid" retainer, which is a fee paid in advance for work that is yet to be done. The unused portion of such a retainer is usually refundable.
Also, the Missouri Supreme Court’s Advisory Committee's formal opinion No. 128 is instructive. It clarified that a non-refundable retainer agreement, "which fails to account for work not performed as a result of a client’s early termination of the relationship, is unreasonable and therefore unethical under Rule 4-1.5. In such a case, the attorney must return the unearned fee."
Your written fee agreement with your lawyer should outline the nature of the retainer fee and the refund policy. If you're considering terminating your relationship with your current lawyer, you should review this document and consult with a new lawyer about it, and the terms of that agreement may implicate matters of contract law which I lack sufficient information to give an opinion on for purposes of this answer.
Finally, be sure to communicate your decision to terminate representation in writing, and request a refund of any unused portion of your retainer as well as an itemized statement of the work performed and costs incurred to date.
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