divorce lawyer refund unused retainer if couple reconciles?
My husband and I split nearly 6 years ago. I had hired and atty at the time and gave a retainer fee. Only a portion was used. We never finalized a legal speration or a divorce. Is the atty obligated by law (I am in NY) to return any unused monies or is it to their discretion or am I just out the money? Thanks!
6 Responses
Star
23 Feb 2010
blktan23
23 Feb 2010
he is obligated to return all unused portions of a retainer. that is a very clear rule in the law.
dreadfulgravy
23 Feb 2010
yeah its like giving the cashier a 50 dollar bill and saying your gonna fill the tank and it only cost $34 they have to give you back the $16 or there stealing it from you
they can’t demand payment for services that haven’t been rendered
unless that’s what you agreed to pay for his services
Mary B
23 Feb 2010
No! Lord no!
Just because you get back together, doesn’t mean the attorney didn’t work on your case, and they need to be paid for their time.
You need to contact them as soon as possible and let them know, so that any unused portion of your retainer can be returned to you, but you won’t get the whole thing back.
CatLaw
23 Feb 2010
NY, like most other states, will allow the Attorney Fee Agreement or Retainer Agreement to dictate how and when the fee is earned. So, you need to look at the Agreement you signed. Phrases like "earned upon receipt", and "non-refundable retainer" mean that there is no refund. These terms are used by many divorce attorneys.
I would call the law firm, tell them that you never finalized the divorce, and ask if there is any refund on the retainer. Since your case is 6 years old, there will probably be a delay while someone retrieves your case file from storage.
mj69catz
23 Feb 2010
All states in the US have specific laws regarding funds that do not belong to the attorneys. Depending on the retainer agreement, the funds are either earned upon retention (you are usually reserving the attorney to work for you, kind of like a deposit) or earned upon completion of the work.
If there was "unused" money, and your retainer agreement allows for a refund, they will be required to refund the amount to you.
However, just because you saw an "unused" portion on your last bill from 6 years ago, it doesn’t mean that the retainer was not a "non-refundable" retainer. Also, even if there is a refund due to you, it will likely not contain interest. Most attorneys pool their money into a common account. The interest for this account goes to IOLTA in most states (Interest on Lawyers Trust Accounts).
You need to request a refund from your attorney’s office, unless you know that your retainer was non-refundable. If they indicate that the entire retainer was applied to legal fees (and you know or find out that it was refundable) then you can request an accounting of those legal fees.
It depends on the terms of the professional services agreement. Did he charge a flat fee regardless of how long the process was going to take (sometimes, some people mistakenly think it’s a refundable retainer)? Or did he take a retainer, which was to be applied to the final bill (and you got a bill each month) and you paid an hourly rate.
Read the agreement and see what it says. But, if it is a "real" retainer, then yes, he would be required to return any unused funds after he applied any billings (costs, attorneys’ fees, etc.) to the retainer.