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
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. 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."