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In a criminal case, most lawyers require the payment of a 'retainer'. There are two general types of retainers. The first is a nonrefundable retainer, which means there will be no refund after the case is finished even if the lawyer did not spend as much time or did not have to go to trial as was anticipated. If a client has only a certain amount to spend, (flat fee) nonrefundable retainers can be attractive. It should be noted that some states, but not Arizona, have banned nonrefundable retainers as being unethical. Arizona requires that the lawyer 'look back' at the total fee after a case is completed to analyze if the fee charged was fair given the hours spent on the case (Rule 1.5, Arizona Rule of Professional Responsibility). The client should require a written fee agreement (also required by the Arizona Rules of Professional Responsibility) and assure that the fee agreement contains this 'look back' provision.  This rule applies even if the fee is termed non-refundable.

The second type of retainer requires a refund at the end of the representation if the hours spent by the lawyer has not exhausted the retainer. However, this type of retainer requires the client to pay for the hours spent by the lawyer after the initial retainer has been exhausted. Essentially, the client pays for exactly the hours the lawyer expends on his/her behalf.

In a personal injury/wrongful death case, most lawyers proceed on a contingent fee basis. This means no retainers or hourly fees are charged. The lawyer's fee is 'contingent' on obtaining a recovery and the lawyer is paid the percentage of the recovery agreed to in the written fee agreement. The Arizona ethical rules do require the client to pay the 'out of pocket' costs, but also allow the lawyer to preliminarily pay the costs until the case is completed.  The 'look back' provision also applies to contingent fee agreements

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Feder Law Office, P.A. 2930 E. Camelback Rd. | Suite 205 Phoenix AZ 85016 Phone: 602-257-0135