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Copyright (c) 1997 The Journal of the Legal Profession
The Journal of the Legal Profession

STUDENT COMMENTARY: The Earned Upon Receipt Retainer

1997 / 1998

22 J. Legal Prof. 309


Wilson Moore


I. Introduction

A true "earned upon receipt retainer" is one paid to a lawyer for which the only consideration given is the promise to represent the paying client and no other party in a particular matter. 1 Under such an agreement, the client pays the attorney in essence just to show up; if the fee is truly earned upon receipt, the retainer cannot include a provision for actual services rendered, nor act as an advance on the ultimate representation. 2 The payment, then, is neither made nor received in payment of the services contemplated, 3 and has no relation to the obligation of the client to pay his attorney for the services which he has been retained to perform. 4 As the exclusive value of the exchange is the attorney's promise to represent the client, confusion often arises as to the purpose and reasonableness of such a fee. It has long been held that, in the absence of an express agreement to the contrary, an attorney is entitled to a reasonable amount as a retainer. 5 A brief overview of and comparison with other types of retainers aids in comprehension of this often controversial issue.

A. Comparison to Other Types of Retainers

1. Advance Fee Retainers.--"Earned upon receipt" retainers are also referred to as general or classic retainers, where the consideration is paid in exchange for availability and nothing more. 6 An advanced fee retainer, on the other hand, is a "contractually mandated payment ...
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