Legal Question in Legal Ethics in California

I hired an attorney to represent for for a petty theft case. It has been 4 months and I have not been given a court date. I have been told numerous times by my attorney to not worry, and that he will do all the work.

I paid him a "Non-Returnable Retainer Agreement"

What should I do? Is he a bad attorney? Should I fire him? Am I able to receive my retainer fee back?


Asked on 4/24/12, 2:46 am

1 Answer from Attorneys

Anthony Roach Law Office of Anthony A. Roach

I don't know enough information to give you an opinion on whether he is a bad attorney. I can set forth some things that I see, however.

Retainers in California are not non-refundable unless they are considered "true retainers." Many lawyers think their retainers are true retainers, and they are not. This is the number one cause of attorney discipline cases in California. A true retainer is a fee that is paid for an attorney to be available. It is earned at the outset and is not refundable, but the attorney of course must be available during the time period contracted for. This is discussed here: http://www.dailyjournal.com/cle.cfm?show=CLEDisplayArticle&qVersionID=308&eid=908777&evid=1

Most retainer agreements in which an attorney is paid up front are one of two types. They are either a flat fee agreement, in which the attorney agrees to perform specified legal work for a fixed fee, or they are an advance for fees and costs for work to be billed hourly. In these latter types of agreements, the written retainer agreement provides that the advance will be billed, but any provision that the advance is nonrefundable (regardless of what the attorney labels it) is unethical and illegal.

It sounds as though you hired this attorney to represent you in a specific matter. But I have no idea from reading your post whether charges were filed, or what the status of the case is, or whether the attorney has done any work.

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Answered on 4/28/12, 1:44 pm


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