We paid Mr. Gardner a $10,000 retainer a few years ago for an ongoing investigation that resulted…read morein no charges. I was informed that no charges would be pursued by the original investigator, not Mr. Gardner, who had not communicated with me in over 32 months since we last asked for a status of the case and for him to take action, like a motion for return of property.
We directly requested Mr. Gardner to act on our behalf, by filing the previously mentioned motion and he refused saying it was not the right time, so we asked to be notified of the right time, but that time never came.
So, I sought to fire Mr. Gardner and hire an attorney who said she would act now, on my behalf. We requested detailed billing for legal services rendered to us but never received these details and Mr. Gardner convinced us to stay with him so we did not continue to pursue getting our funds back.
However, when we heard that no charges would be filed, again 32 months after our last communication from Mr. Gardner's office, we once again requested detailed billing for all expenses incurred for legal services he provided on our behalf and for a second time we were not provided these details. Additionally, Mr. Gardner has now changed his tune and has started to suddenly claim that the $10,000 was a flat fee, though that never came up when we tried to fire him the first time, they only argued for us to stay with them, not that the fee was a flat fee rather than a retainer fee..most states don't allow special flat rate retainer fees because it prevents the client from changing attorneys until the completion of a specific project, including Alabama.
There was no contract shared with us that we signed stating that this was a flat fee rather than a retainer and all the language we used in the office with Mr. Gardner the day we paid him, was for a retainer, to get involved with the investigation and to retain his services should charges be filed.
I've asked Mr. Gardner's office to produce any such contract stating this was a flat fee and that it was acknowledged by us, but they are unable to produce the contract and our records only reflect an electronic receipt for the credit card payment that was made for the...RETAINER.
Since the office seems to have forgotten the legal way to handle retainers, I'll drop a few definitions below.
Our next steps are to file an ethics complaint with the Alabama State Bar and the Huntsville Bar Association, after which we will continue our counsel with a legal malpractice team, who we plan to pay all recovered funds to, as this is no longer about recouping the money, but the principle of the matter and the ability to trust those in the law profession.
General retainers are fees for a specific period of time, not a specific project. You are basically paying the attorney to be available for discussions and questions about legal matters during this time. For example, you may want an employment attorney on retainer to help you deal with issues that come up with employees.
A retaining fee is a deposit or lump-sum you pay in advance. The attorney must (by law) deposit that money in a trust account to draw from as work is done. If there is money left in the trust account at the end of the project, you get that back.
A special retainer is a flat fee that you would pay for a specific case or project. Many states prohibit this type of retainer because it means you can't discharge the attorney until the end of the project.
https://www.alabar.org/office-of-general-counsel/formal-opinions/2008-03/
QUESTION:
Should a flat fee that is received prior to the conclusion of representation be deposited into an attorney's IOLTA account or is it earned at the time of receipt?
ANSWER:
In Alabama, a flat fee that is received prior to the conclusion of the representation or prior to the performance of services must be deposited in the attorney's IOLTA account until the fee is actually earned.
