Frequently Asked Questions
May I charge interest on past due accounts?
Is it permissible to charge a non-refundable retainer?
An attorney may charge a fee that is nonrefundable provided the client agrees in writing. Rule 4-1.5 (e) requires that a nonrefundable fee be confirmed in a writing that explains the nature and the amount of the nonrefundable fee.
Florida Ethics Opinion 93-2 states that a nonrefundable retainer is earned upon receipt and should therefore be deposited into an attorney’s general account. The opinion cautions that:
[T]he lawyer may later be obligated to refund part, or possibly all of it, if the legal services are not performed, in which case the fee may be found to be excessive, but the money is the lawyer’s upon receipt of it.
If, however, an attorney receives a prepaid fee or retainer as an advance then the funds must be deposited into the attorney’s trust account. Opinion 93-2 states:
On the other hand, the prepaid fee may be given to the attorney with the understanding that it is a deposit securing a fee that is yet to be earned. Such money does not belong to the lawyer, and should be held in trust until it has been earned by performance of the agreed-upon services. The committee believes that there should exist a presumption that prepaid fees are an advance deposit against fees for work that is yet to be performed. Certainly, this is the assumption that the typical client would make. The attorney should bear the burden of rebutting this presumption.
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