The word retainer is used for two different things, which is why the answer confuses people. A legal retainer can mean the written agreement by which you hire a lawyer and the lawyer agrees to act. It can also mean a sum of money you pay in advance, which the lawyer holds in trust and draws from as work is done. On a contingency file the first exists and the second does not.
Both meanings matter, and each applies to different kinds of file.
The Retainer Agreement Is the Contract Between You and the Firm
This is the document that starts the relationship. It names the client, names the matter, states what the firm is being hired to do, and states how the firm is paid. It is signed by both sides and it governs everything that follows.
Read the scope clause first. A retainer for a criminal charge that says the fee covers the matter to the end of a preliminary inquiry does not cover the trial after it. A retainer for an injury claim usually covers the claim to its resolution. What is outside the scope is billed separately or not done, so the scope is the clause that decides what you are actually buying.
The Money Retainer Sits in a Trust Account, and It Is Still Yours
Where a matter is billed by the hour, the firm usually asks for money in advance. That money goes into a trust account, which is separate from the firm’s own account, and the firm may move money out of it only as it bills for work actually done.
Every Atlantic province regulates trust accounts strictly through its law society, with mandatory records, annual reporting and audits. Unearned money in trust remains the client’s, and if the matter ends with money left, it comes back. A lawyer who cannot tell you what remains in trust on your file is a lawyer to worry about.
A Legal Retainer Is Not the Total Cost of the Matter
This is the most common misunderstanding on a billed file. Money paid in advance is a deposit against fees, not a quoted price. When it runs low the firm asks to top it up, and the total cost depends on how much work the matter turns out to need.
Ask two questions before you pay one. What does the firm estimate the whole matter will cost, and what would make that estimate wrong. A contested trial costs more than a resolution, and an estimate that ignores the difference is not an estimate.
Block Fees Are the Other Way Criminal Work Is Priced
Many criminal defence retainers are written as a block fee for a defined stage: one amount to take the matter to the end of disclosure and any resolution discussion, another if the matter goes to trial. The client knows the number for that stage before it begins.
The advantage is that the client is not watching a clock. The thing to check is the same scope question as before: what stage the block covers, and what happens when the matter moves past it. Charges, stages and what happens at each are set out in the criminal process guide, and the service itself on the criminal defence page.
On a Contingency File There Is a Retainer Agreement and No Money
Personal injury and disability claims at this firm are taken on contingency, so there is a signed retainer agreement and nothing is paid into trust. The fee comes out of the recovery at the end, and it comes out of nothing if there is no recovery. That mechanism is set out in the note on how a contingency fee works.
The agreement still has to be read as carefully as any other, because it decides the rate, the treatment of disbursements and what happens if the retainer ends early.
What a Properly Written Retainer Agreement Covers
Six things, at minimum. Who the client is, which matters where two people are involved and only one is being represented. What work is included and what is not. How fees are calculated. How disbursements are handled. How and when the client is billed or accounted to. How either side may end the relationship.
Read the last one twice, because it decides what you owe if you change firms partway through. That situation is dealt with in the note on changing lawyers.
You Are Entitled to a Copy, and to an Explanation
Take the copy. Keep it where you can find it, because the answer to almost every later argument about money is in it.
If a clause is unclear, ask about it before you sign it. A lawyer who will not slow down to explain a fee clause at the start is unlikely to become clearer once the file is running.
Ending a Retainer, From Either Side
A client may end a retainer at any time. A lawyer may withdraw only in the circumstances the law society’s conduct rules allow, and not in a way that prejudices the client, which is why withdrawal close to a trial date usually needs the court’s permission in a criminal matter.
When a retainer ends, the firm accounts for the money it has taken from trust, returns the balance and transfers the file. It may hold the file over an unpaid account in some circumstances, which is a further reason to keep the account current.
Where the Rules Come From
Retainers, trust accounts and fee agreements are governed by each province’s legal profession statute and the conduct rules its law society makes under it. Those instruments are public. The Law Society of Prince Edward Island publishes its rules, as do the equivalent bodies in the other three provinces, and the decisions interpreting them are on CanLII.
Nothing in a retainer agreement can override those rules. Where the agreement is silent, they fill the gap.
Before You Sign
Read the scope, the fee, the disbursements clause and the termination clause. Ask what the whole matter is likely to cost and what would change that. Ask who will do the work.
Those questions are free to ask, and the meeting where you ask them is usually free too, as set out in the note on what happens at a free consultation. The Saint John office takes those calls.