retainer

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Retainer

A contract between attorney and client specifying the nature of the services to be rendered and the cost of the services.

Retainer also denotes the fee that the client pays when employing an attorney to act on her behalf. When a client retains an attorney to act for her, the client thereby prevents the attorney from acting for an adversary.

A right to retainer refers to the authority by which the executor or administrator of the estate of a deceased person reserves out of the assets an amount sufficient to pay any debt due to him from the deceased in priority to the other creditors whose debts are of equal degree.

Cross-references

Executors and Administrators.

retainer

n. the advance payment to an attorney for services to be performed, intended to insure that the lawyer will represent the client and that the lawyer will be paid at least that amount. Commonly in matters which will involve extensive work there will be a retainer agreement signed by the attorney and client. Further payments for services can be expected as the time spent on the legal matter increase. Most lawyers do not want to be owed money, and wish to paid either in advance or promptly as the work is performed. One reason for the retainer and the problem a lawyer faces is that he/she does not want to abandon a client, but at the same time does not want to be stuck with extensive unpaid fees.

retainer

noun arrhabo, compensation, employment fee, engaging fee, fee contingent on future legal services, fee paid to secure legal services, income, payment, professional fee, recompense, remuneration, retaining fee
Associated concepts: attorney's retainer
See also: compensation, consociate, deposit, honorarium

RETAINER. The act of withholding what one has in one's own hands by virtue of some right.
     2. An executor or administrator is entitled to retain in certain cases, for a debt due to him by the estate of a testator or intestate.
     3. It is proposed to inquire, 1. Who may retain. 2. Against whom. 3. On what claims. 4. What amount may be retained.
     4.-1. In inquiring who may retain, it is natural to consider, 1st. Those cases where there is but one executor or administrator. 2d, Where there are several, and one of them only has a claim against the estate of the deceased.
     5.-1. A sole executor may retain in those cases where, if the debt had been due to a stranger, such stranger might have sued the executor and recovered judgment; or where the executor might, in the due administration of the estate, have paid the same. 3 Burr. 1380. He may, therefore, retain a debt due to himself; 3 Bl. Com. 18; or to himself in right of another; 3 Burr. 1380; or to another in trust for him; 2 P. Wms. 298: the debt may be retained when administration is committed to another for the use of the creditor who is a lunatic; 3 Bac. Abr. 10, n; Com. Dig. Administration, C or an infant entitled to administration. 4 Ves. 763. An executor may retain if he be the executor of the first testator; but an executor of one of the executors of the first testator, the other executor, being still living, is not an executor of the first testator, and therefore cannot retain. 11 Vin. Abr. 363, An executor may retain before he has proved the will, and if he die after having intermeddled with the goods of the testator and before probate, his executor has the same power. 3 P. Wms. 183, and note B.; 11 Vin. Abr. 263.
     6.-2. Where there are several executors, and one has a claim against the estate of the deceased, he may retain with or without the consent of the others; Off. Ex. 33; but where several of them have debts of equal degree they can retain only pro rata. Bac. Abr. Executors, A 9.
     7.-II. Against whom. In those cases, 1. Where the deceased was alone bound. 2. Where he was bound with others. 3. Where the executor of the obligee is also his executor.
     8.-1. Where the deceased was sole obligor, his executor may clearly retain.
     9.-2. Where two are jointly and severally bound, and one of them appoints the obligee his executor; Rob. 10; 2 Lev. 73; Bac. Abr. Executors, A 9; Com. Dig. Administration,, C 1; or the obligee takes out letters of administration to him, the debt is immediately satisfied by way of retainer, if, the executor or administrator have sufficient assets.
    10.-3. If the obligee make the administrator of the obligor his executor, it is a discharge of the debt, if the administrator have assets of the estate of the obligor; but if he have fully administered, or if no assets to pay the debt came to his hands, it is no discharge, for there is nothing for him to retain. 8 Serg. & Rawle, 17.
    11.-III. On what claims. 1. As to the priority of the claim. 2. As to its nature.
    12.-1. In the payment of the debts of a decedent, the law gives a preference to certain debts over others, an executor cannot, therefore, retain his debt, while there are unpaid debts of a superior degree, because if he could have brought an action for the recovery of his claim, he could not have recovered in prejudice of such a creditor. 5 Binn. 167 Bac. Ab. Executors, A 9; Com. Dig. Administration, C 2; 1 Hayw. 413. He may retain only where he has superior claim, or one of equal degree. 3 Bl. Com. 18; 11 Vin. Abr. 261; Com. Dig. Administration, C 1. And in a case where two men were jointly bound in a bond, one as principal, the other as surety, after which the principal died intestate, and the surety took out administration to his estate, the bond being forfeited, the administrator paid the debt; it was held he could not retain as a specially creditor because being a party to the bond it became his own debt; 11 Vin. Abr. 265; Godb. 149, Pl. 194; but see 7 Serg. & Rawle, 9; after having paid the debt, however, he became a simple contract creditor, and might retain it as such. Com. Dig. Administration, C 2, n.
    13.-2. As to the nature of the claim for which an executor may retain, it seems that damages which are in their nature arbitrary cannot be retained, because, till judgment, no man can foretell their amount; such are damages upon torts. But where damages arise from the breach of a pecuniary contract, there is a certain measure for them, and such damages may well be retained. 2 Bl. Rep. 965; and see 3 Munf. 222. A debt barred by the act of limitation may be retained, for the executor is not bound to plead the act against others, and it shall, therefore, not operate against him. 1 Madd. Ch. 583.
    14.-IV. What amount may be retained. 1. By the common law an executor is entitled to retain his debt in preference to all other creditors in an equal degree. 3 Bl. Com. 18; 11 Vin. Abr. 261. This he might do, because he is to be placed in the situation of the most vigilant creditor, who by suing and obtaining a judgment might have obtained a preference. Where however, the executor cannot, by bringing suit, obtain a preference, the reason seems changed, and therefore in Pennsylvania, when do such preference can be obtained, the executor is entitled to retain only pro rata with creditors of the same class. 8 Serg. & Rawle, 17; 5 Binn. 167. A creditor cannot obtain a reference by bringing suit and obtaining judgment against executors in the following states, namely: Alabama; 4 Griff. L. R. 582; Connecticut; 3 Griff. L. R. 75; Illinois; Id. 422; Louisiana;, 4 Griff. L. R. 693; Maine; Id. 1004; Maryland; Id. 938; Massachusetts; 3 Griff. L. R. 516 Mississippi; 4 Griff. L. R. 669; Missouri Id. 625; Now Hampshire; 3 Griff. L. R 46; Ohio; Id. 402; Pennsylvania; Id. 262; 8 Serg. & Rawle, 17; 5 Binn. 1 67; Rhode Island; 8 Griff. L. R. 114; South Carolina; 4 Griff. L. R. 860; Vermont; 3 Griff. L. R. 20. Such a preference can be given by the laws of the following states, namely: Delaware; 4 Griff. L. R. 1064; Kentucky; Id. 1135; North Carolina; 3 Griff. L. R. 221; Now Jersey; 4 Griff. L. R. 1282; New York; 3 Griff. L. R, 141; Tennessee; 4 Griff. L. R. 791; Virginia; 3 Griff. L. R. 360, In Georgia; 3 Griff. L. R. 444; and Indiana.; Id. 467; the matter is doubtful.
    15.-2. Where the estate is solvent an executor may of course retain for the whole of his debt, with interest.

RETAINER, practice. The act of a client, by which he engages an attorney or counsellor to manage a cause, either by prosecuting it, when he is plaintiff, or defending it, when he is defendant.
     2. "The effect of a retainer to prosecute or defend a suit," says Professor Greenleaf; Ev. vol. ii. Sec. 141; "is to confer on the attorney all the powers exercised by the forms and usages of the courts, in which the suit is pending. He may receive payment; may bring a second suit after being non-suited in the first for want of formal proof; may sue a writ of error on the judgment; may discontinue the suit; may restore an action after a non pros; may claim an appeal and bind his client in his name for the prosecution of it; way submit the suit to arbitration; may sue out an alias execution; may receive livery of seisin of land taken by an extent may waive objections to evidence, and enter into stipulation for the admission of facts or conduct of the trial and for release of bail; may waive the right of appeal, review, notice, and the like, and confess judgment. But he has no authority to execute a discharge of a debtor but upon the actual payment of the full amount of the debt, and that in money only; nor to release sureties; nor to enter a retraxit; nor to act for the legal representatives of his deceased client; nor to release a witness."

References in classic literature ?
Had the nobles, by a conduct of clemency and justice, preserved the fidelity and devotion of their retainers and followers, the contests between them and the prince must almost always have ended in their favor, and in the abridgment or subversion of the royal authority.
Every partner who had charge of an interior post, and a score of retainers at his Command, felt like the chieftain of a Highland clan, and was almost as important in the eyes of his dependents as of himself.
Then he bade all his servants and retainers to make ready to go to London Town, to see and speak with the King.
Uncle" dismounted at the porch of his little wooden house which stood in the midst of an overgrown garden and, after a glance at his retainers, shouted authoritatively that the superfluous ones should take themselves off and that all necessary preparations should be made to receive the guests and the visitors.
cried all the servants, and it pleased the Wizard to note the respect with which the royal retainers bowed before him.
Gone were the thatched huts of his sturdy retainers, empty the fields, the pastures, and corrals.
Owing to the games there were comparatively few retainers in the great building, but those whom they found were immediately enlisted in the search, so that presently at least fifty warriors were seeking through the countless chambers and corridors of the palace of O-Tar.
A word to De Clare, or De Montfort would bring the barons and their retainers forty thousand strong to overwhelm the King's forces.
Because the politicians of the old parties will have nothing to do with your atavistic ideas; and with your atavistic ideas, they will have nothing to do because they are what I said they are, henchmen, retainers of the Plutocracy.
This was a merry life for the Baron of Grogzwig, and a merrier still for the baron's retainers, who drank Rhine wine every night till they fell under the table, and then had the bottles on the floor, and called for pipes.
About King Hrothgar are grouped his immediate retainers, the warriors, with whom he shares his wealth; it is a part of the character, of a good king to be generous in the distribution of gifts of gold and weapons.
If the people yield, well and good; but if they resist him, as he began by beating his own father and mother, so now, if he has the power, he beats them, and will keep his dear old fatherland or motherland, as the Cretans say, in subjection to his young retainers whom he has introduced to be their rulers and masters.