WHAT IS A RETAINER SO ASKS AN EXPERIENCED LAWYER
If it were a potential client, I would have been excited to explain what a retainer is all about. I could throw in a little history lesson to show how retainers trace back to the time of emperors, pharaohs, and kings.
Yet here I am dumbfounded at the person asking the question. I intently looked into her eyes for some glimpse of redemption perhaps lurking deep down her soul. I mean, it is not like I am talking to a law student or a rookie lawyer on her first few months in practice. Although, I’d like to think that somehow law graduates have a basic understanding of what a retainer is all about. After all, isn’t that what makes lawyers wealthy?
Resigning to my fate that the universe played a joke on me at that moment, I proceeded to answering the question. I answered with a single word: “access”.
That is, after all, how a mentor taught it to me. He happened to be a bar topnotcher, so what do I know. I just listened intently to him over lunch in a Chinese restaurant of sorts in SM Manila.
He explained that it was all about having a lawyer whom the client can readily access for legal consultation. It is, after all, not easy to look for a lawyer. This is especially true for a lawyer with the background, experience, and skill set who can properly advise on legal matters. Lawyers are not created equal as the saying goes.
Without a retainer, the client will not be able to first consult a legal advisor who can properly protect his rights and interests and, on the other side of the coin, guide him away from lawsuits and liabilities.
Thus, for businesses, a legal retainer is very valuable to have on the team.
While these are all good, I’ve come to a deeper appreciation of what a retainer arrangement is after having my own retainer clients.
In addition to having “access”, a retainer is a peer who provides value-added consulting to the client aligned with the latter’s interest.
Use of the word peer is intentional.
A peer is someone who is able to tell a colleague how things are without hesitation or fear of being disliked (or in this age of social media, unliked or unfollowed). In essence, a peer is someone who tells it as it is.
Thus, the most valuable retainer arrangements out there between the client and the lawyer are those built on a peer relationship.
The lawyer should not be tongue-tied when advising the client who may be selective in what he wants to hear. Nor should a lawyer edit out his advice depending on the mood of the client.
Of course, this presupposes that the lawyer is qualified and competent to be the advisor for that client. Thus, if after exhausting all creative solutions and the answer remains unfavorable, then the same should be communicated and explained well to the client. The lawyer owes this much to the client, who, after considering all available information, shall make the decision.
So what is a retainer? He is one whom the client expects to tell him things as it is without fear or favor.