Hiring a Lawyer

A retainer refers to two things:

1. A written agreement (contract) between you and the lawyer that forms a solicitor-client relationship. This is a retainer agreement.
2. Money you pay to a lawyer to secure their services. This money is a deposit on future legal fees and expenses the lawyer will incur on your behalf. This is a retainer fee.

When you hire a lawyer, they will usually ask you to sign a retainer agreement and provide a retainer fee.

Last updated: February 2021

A retainer agreement is a contract between you and your lawyer that sets out your relationship. It is a written agreement that includes terms such as:

• the scope of your lawyer’s authority to act on your behalf. Usually your lawyer has full authority to act for you. They must follow your instructions (unless your instructions are unethical or illegal) on important steps, such as going to court or accepting a settlement offer. Sometimes you might hire a lawyer on a limited scope retainer. In this case, the retainer agreement must set out exactly what work the lawyer will be responsible for. You will be responsible for all other steps in the court action. See the question below for more information on limited scope retainers.
• what the lawyer will charge you for their services. The lawyer might charge you a flat fee for their work or by the hour. If they charge you by the hour, the agreement must say what their hourly rate is. The agreement should also say what the costs are for the services of legal assistants or other employees of the lawyer who work on your file.
• that you must pay for costs the lawyer occurs, such as photocopying and delivery fees
• that you must pay for disbursements – fees such as court filing fees or fees for an expert report
• the retainer fee amount, if requested
• what will happen to the retainer fee if you or your lawyer ends the relationship
• interest charged to you if you do not pay your bill (statement of account) on time
• how your lawyer will communicate with you and store your information
• how to end the agreement

Last updated: February 2021

A limited scope retainer is an arrangement where a lawyer provides legal services for part but not all of your legal matter. You and the lawyer will agree ahead of time which parts they will do. Your retainer agreement must clearly say what the lawyer will help you with. If you and the lawyer agree to change the arrangement, you should update the retainer agreement.

This arrangement can help if you cannot afford to pay a lawyer to represent you fully but want some professional help. For example, the lawyer may review your legal documents or coach you on how to present your case to the judge. You will pay the lawyer for the services they provide, and you will do the rest of the work on your case.

Not all lawyers offer limited scope retainers. To find a lawyer who will coach you or provide limited services, visit the Alberta Legal Coaches & Limited Services Society’s website.

More information on limited scope retainers:

• “Access to Justice in Family Law: A guide to offering limited scope retainers” by Tonya Lambert (LawNow article)
• Alberta Legal Coaches & Limited Services Society (directory of lawyers who provide coaching or limited scope services PLUS resources)

Last updated: February 2021

With a contingency fee agreement, a lawyer agrees to represent you and to be paid a percentage of the settlement or judgment. The lawyer’s fee is contingent upon a successful outcome. If your case is not successful, the lawyer will not charge for their legal fees. Usually the agreement says you have to pay the lawyer’s costs and disbursements from time to time, such as court filing fees, photocopying fees, etc.

The percentage amount is different for each lawyer. Usually the contingency agreement says the percentage increases with each step in the legal process. The more time a lawyer puts in, the bigger the percentage the lawyer will collect. For example, the agreement might say the lawyer gets 20% if you agree to a settlement amount before a trial but 40% if the lawyer has to go to trial.

These arrangements are common for personal injury cases where an injured person might get damages (money) for their injuries.

Last updated: February 2021

A retainer fee is an amount of money a lawyer requires you (the client) to pay before the lawyer will act for you. There is no standard fee. Lawyers set their own retainer fees. It usually depends on the lawyer’s expertise and how complicated your issue is.

The lawyer deposits the retainer amount in a trust account. It is a down payment for future services. When the lawyer does work for you, you will receive a bill (or “accounting”) for those services. Payment for the services is taken from the trust account. If the retainer fee runs out, the lawyer may ask you for more money before they continue working on your file.

Last updated: February 2021

A trust account is a bank account managed by a lawyer that holds all the money client give the lawyer in trust. Lawyers can only use money in trust accounts for the purpose for which it was given to them.

Lawyers must deposit retainer fees in trust accounts. As the lawyer does work for you and bills you, they will move money from their trust account to their operating account (pay themselves). For example, the lawyer asks you for a $5,000 retainer fee. They send you a bill a month later for $1500. The statement of account shows the lawyer used the retainer fee to pay the account and that $3500 remains in trust for future services.

Clients may also give lawyers money in trust to complete purchase agreements. For example, if you are buying a house, you (and the bank, if you have a mortgage) will give the money to the lawyer before the sale concludes. The lawyer will hold it in their trust account and then transfer the money to the seller on the closing date.

Lawyers must follow very strict rules for trust accounts set by the Law Society of Alberta. There are serious consequences for lawyers who do not follow the rules.

Last updated: February 2021

A statement of account is a bill from a lawyer. It lists the work the lawyer did for you and what the fee is. If you have given the lawyer a retainer fee, the statement of account will show if the retainer fee was applied to the bill, how much of the retainer fee is left and any amount you still owe the lawyer.

Last updated: February 2021

A solicitor’s lien allows a lawyer to hold onto your file if you still owe the lawyer money. The Code of Conduct for Alberta lawyers says lawyers must consider the effect the lien may have on you. The lawyer should not enforce the lien if it would materially prejudice your position in your legal matter. A material prejudice is more than just an inconvenience to you. It is something that would seriously hurt your case going forward, such as missing an important court date.

Last updated: February 2021

You want a lawyer that you feel comfortable with and trust. You also want a lawyer who has experience dealing with issues like yours. There are many ways to find a lawyer:

1. Ask friends and family for recommendations.
2. Check the Law Society of Alberta Lawyer Directory. This is a database that allows people to find a lawyer using a certain search criteria. Individuals can find a lawyer by searching by name, location, practice areas, language(s) spoken, gender, and whether a lawyer offers a limited scope retainers.
3. Talk to service providers. Ask your intake worker, support worker, etc. to see if they know a lawyer who can help you.
4. Research online. A quick Google search may show lawyers in your area. Be sure to still talk to the lawyer to make sure they are a good fit before you retain them or send them money. Online scammers will try to trick you! Make sure you check that the lawyer is allowed to practice in Alberta by searching the Law Society of Alberta’s Lawyer Directory.

Once you contact a lawyer, they will talk with you about your problem. The lawyer will want to know a little about your issue so they can run a conflict check. Lawyers cannot represent a person if there is a conflict of interest. (See the next question.)

Last updated: February 2021

Lawyers cannot represent a person if they have a conflict of interest. A conflict of interest exists where a lawyer’s loyalty or representation of a client would be negatively affected by the lawyer’s own interest or the lawyer’s duties to another client, former client, or third person. For example, in a lawsuit, a lawyer cannot represent both parties. The lawyer cannot act in the best interests of both parties when the parties are at odds with each other.

There are exceptions to this rule where the clients consent to the lawyer acting even if there is a conflict of interest. For example, if you are buying or selling a house, one lawyer can act for the seller and the bank, and sometimes the buyer too. The lawyer can only do this if everyone agrees and if everyone understands that the lawyer shares information with everyone – there is no confidential information.

Last Reviewed: February 2021

You have retained a lawyer when you have talked to the lawyer, the lawyer has completed a conflict check and the lawyer has agreed to represent you. Usually this process ends with you and the lawyer signing a written retainer agreement.

Last Reviewed: February 2021

If you cannot afford a lawyer, lots of community organizations and courthouse services provide free legal help. Visit LawCentral Alberta for a list of services in your area.

Legal Aid also provides legal help for certain legal issues. Legal Aid is not free but services are less costly than hiring a lawyer on your own. Visit Legal Aid’s website for more information.

There are usually income limits for accessing free legal help or Legal Aid. Check with each service to see if you are under the limit.

Last Reviewed: February 2021

While a retainer agreement is not necessary, it is a good idea and best practice. Usually a lawyer requires new clients to sign retainer agreements before the client will act. Retainer agreements protect both you and the lawyer by setting out the rules of the relationship and how you will be billed.

Last Reviewed: February 2021

Your lawyer represents you and your best interests but does not make decisions for you. Your lawyer advises you of options and then gets your instructions before taking any actions. Ultimately the decision is up to you. For example, if your lawyer receives a settlement offer from the other side, your lawyer will discuss the offer (whether it is reasonable) and the pros and cons of accepting or not accepting the offer. You make the final decision on whether or not to accept the offer, taking into account your lawyer’s advice.

You cannot instruct your lawyer to do illegal or unethical things. Your lawyer can refuse to continue acting for you if you do. Your lawyer can also refuse to continue acting for you if you continuously give them instructions contrary to their advice.

Last Reviewed: February 2021

What do you not agree with? Do you not agree with the advice your lawyer is giving? Perhaps in your opinion your lawyer is not competent? Do you not like what your lawyer is saying because it is not what you want? Your lawyer must act in your best interests, but you might not always like what your lawyer has to say!

If you have serious concerns with how your lawyer is managing your file, you can file a complaint with the Law Society of Alberta.

If you decide that you and the lawyer are no longer a good fit, you can change lawyers. See below for more information on changing lawyers.

Last Reviewed: February 2021

Yes. You can fire your lawyer or change lawyers at any time. But changing lawyers close to a trial or questioning date or other important step in the legal process can delay your case. Your hearing or trial will proceed on the date scheduled. You should retain a new lawyer as soon as possible.

You might also incur extra expenses in the transfer. Your lawyer will ask you to pay all unpaid fees, disbursements and charges incurred to date before they will give your file to you. If you have a contingency arrangement with the lawyer, check the contingency agreement to see what it says about the fees you have to pay if you or the lawyer ends the solicitor-client relationship.

If the lawyer is representing you in a court case, the lawyer must file a Notice of Withdrawal form with the court and serve a copy on you to complete the withdrawal process.

Last Reviewed: February 2021

Yes. This is “withdrawing from representation”. The Law Society of Alberta Code of Conduct says a lawyer can withdraw if:

• there is good cause for the lawyer to do so
• there has been a loss of confidence between you and the lawyer. A loss of confidence includes the client deceiving the lawyer, the client refusing to accept and act on the lawyer’s advice, a client not cooperating with the lawyer, the client not providing instructions to the lawyer.
• the client does not pay the lawyer’s bills
• the lawyer is asking the client to act contrary to the lawyer’s professional ethics
• the lawyer is not competent to continue to handle the case

A lawyer must give you reasonable notice that they will no longer be representing you. There is no hard and fast rules about what length of time is reasonable notice. Generally, a lawyer cannot withdraw during a critical stage of the case or at a time when withdrawal would put you at a disadvantage.

When your lawyer withdraws, you must pay all outstanding fees before the lawyer will give you the documents and information in your file. This is called a solicitor’s lien. If you retain a new lawyer, they will also want to make sure you have paid all your outstanding legal bills before they start acting for you.

Even if your lawyer withdraws, your hearing or trial will proceed on the date scheduled. You should retain a new lawyer as soon as possible.

If you have a contingency arrangement with the lawyer, check the contingency agreement to see what it says about the fees you have to pay if you or the lawyer ends the solicitor-client relationship.

Last Reviewed: February 2021

No. But most lawyers will unless they are working under a contingency fee agreement. Lawyers ask for a retainer fee to make sure they will be paid for the services they provide you.

Last Reviewed: February 2021

Lawyers set their retainer fees. It usually reflects the lawyer’s expertise and how complicated your issue is.

For example, if a lawyer thinks your issue can be dealt with quickly and easily, the lawyer may change a lower retainer fee. A long and complicated matter will mean a larger retainer fee. The retainer fee will not necessarily cover all the work the lawyer will do but guarantees payment for a portion of it. The lawyer can ask you to ‘top up’ the retainer fee when it is getting low.

Some lawyers will also adjust the retainer fee based on your situation. If you cannot afford the retainer fee the lawyer requests, you can ask to negotiate the amount. You may also be able to pay in installments.

Last Reviewed: February 2021

The lawyer keeps the retainer amount in a trust account (see definition above). It is a deposit for future services. When the lawyer does work for you, they will send you a bill for those services and pay that bill using the retainer fee. The lawyer is paid once they do work for you. If the retainer fee runs out, the lawyer may ask you for more money before they keep working on your file.

Last Reviewed: February 2021

You may have to pay a retainer multiple times. It depends on how long and complicated your issue is.

Usually your lawyer will want enough money in the trust account to cover your next bill. If your lawyer bills you and the remaining retainer fee is nearing zero, the lawyer will ask you to top up the retainer fee.

Last Reviewed: February 2021

You can ask your lawyer at any time for a trust account statement. Bills or statements of account that you receive from your lawyer will also say how much of your retainer fee is left.

Last Reviewed: February 2021

Yes. If there is money left after your lawyer has been paid for the services they provided to you (and the lawyer is not providing any further services), your lawyer will return the balance to you.

Last Reviewed: February 2021

If your lawyer bills you, applies the retainer fee and you still owe money, you should pay the rest as soon as you can. Your retainer agreement might say how many days you have to pay a bill and what the late fees or interest will be if you do not. Your lawyer has a right to keep your file until their fees are paid (this is a solicitor’s lien).

Last Reviewed: February 2021

Alberta’s Legal Profession Act says that interest earned on lawyers’ general trust accounts is given to the Alberta Law Foundation (ALF). ALF uses this money to fund community organizations that provide projects for the public good. An example of one project is this website! CPLEA receives funding from ALF to provide public legal information to Albertans through websites, print resources, workshops and more.

If you have a separate interest-bearing trust account with your lawyer, you receive the interest on that account. Ask your lawyer about separate interest-bearing accounts. Sometimes money is in a trust account for a short period and the interest earned does not outweigh the cost of setting up a new account.

Last Reviewed: February 2021

Some lawyers will agree to be paid for their services at the end of a transaction or periodically without taking a retainer. Another option is a contingency fee agreement, which is most common in personal injury cases. A third option is a limited scope retainer, where a lawyer does only some tasks on the file and you do the rest. See above for more information about contingency fee agreements and limited scope retainers.

Last Reviewed: February 2021

You can discuss your concerns with your lawyer. If you cannot resolve the issue, you can ask for the bill to be ‘taxed.’ To tax a bill means to ask a taxation officer at the courthouse to review the bill and decide if it is reasonable. See the Government of Alberta’s webpage for more information.

Last Reviewed: February 2021