Legal Blog

Retainer

In a seminar that this writer attended at the CBA annual convention, the speaker stated that lawyers should put pictures of their loved ones on their desks – facing them. The lawyers should look at these pictures and then ask their clients for cash up front.

Once the lawyer gets that retainer, can it be spirited away by a judgment creditor of the client seizing or garnishing the funds? This question was answered by Madam Justice Caswell in Re Toronto-Dominion Bank and Cooper, Sandler (1998), 37 O.R. (3d) 729 (S.C.J.).

True Retainer

The answer as to whether a lawyer’s retainer can be garnished depends upon whether the retainer is a true retainer that a client uses to secure the service of the lawyer on an ongoing basis or is just money that is being held by the lawyer as a bare trustee.

The judge stated; “Only the true retainer that will benefit both solicitor and client is protected. However, that protection is very broad and is wide enough to encompass matters within the contemplation of the parties at the time the retainer is given.”

Accordingly, when you are wise enough to get your fees up front, you can tell the garnishing judgment creditor to take a hike.