Definition
To retain carries two distinct legal meanings that operate in separate contexts.
1. To engage an attorney or counsel. In practice, to retain means to hire an attorney or counsellor by a preliminary engagement — typically accompanied by payment of a retainer fee — authorizing that person to represent or advise the client in a legal matter. This is the dominant sense in procedural and practice contexts.
2. To hold or keep in possession. More broadly, and particularly in property and estates contexts, to retain means to continue to hold something; to keep in possession without relinquishment. An executor, for instance, may retain assets of an estate in satisfaction of a debt owed to the executor personally, rather than being required to pay the estate and then seek recovery as a creditor.
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Common Language
Modern common usage (Wiktionary): To hold back or keep something; to continue to hold or possess something; to prevent something from escaping or being lost.
Historical common usage (Webster's 1913): "To continue to hold; to keep in possession; not to lose, part with, or dismiss; to restrain from departure, escape, or the like." Webster's also captures the legal-adjacent sense directly: "To keep in pay; to employ by a preliminary fee paid; to hire; to engage; as, to retain a counselor."
Editorial note: The ordinary meaning and the legal meaning largely align here, but the legal usage is more technical in both directions. The practice meaning (hiring counsel) involves a formal legal relationship with professional obligations, fiduciary duties, and privilege consequences that the common word "hire" does not carry. The possessory meaning appears in highly specific doctrinal contexts — executors' rights of retainer, liens, and the like — where "keep" in ordinary speech would miss the legal significance entirely.
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Common Confusion
RETAIN vs. RETAINER: To retain is the act; retainer is the instrument or fee that effects it, or the legal relationship that results. Researchers encountering "retainer" in historical sources should note that the word has been used to mean (a) the act of retaining counsel, (b) the fee paid to retain counsel, and (c) the ongoing relationship between client and attorney. Historical dictionaries often use retain and retainer interchangeably when describing the act, which creates ambiguity in older sources. See RETAINER.
RETAIN (possessory sense) vs. LIEN: In estates and creditor contexts, an executor's right to retain is sometimes described alongside or conflated with lien rights, but they are technically distinct. Retention is a self-help right exercised by keeping assets already in possession; a lien is a charge on property that may require enforcement. Historical sources do not always maintain this distinction cleanly.
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Why It Matters in Research
The two meanings of retain operate in functionally separate bodies of law, and researchers should be careful not to carry context from one into the other.
For the practice meaning, the significance lies in what the act of retaining triggers: attorney-client privilege attaches, conflicts-of-interest rules engage, and professional obligations arise. In historical sources, the moment of retention was often less formally defined than in modern practice — an oral engagement, a letter, or even conduct could constitute retention. Researchers working with pre-20th-century materials should expect looser framing around when a retainer relationship was established.
For the possessory meaning, the executor's right to retain is a distinct equitable doctrine — sometimes called the right of retainer — that appears in English equity and was adopted unevenly in American jurisdictions. Researchers tracing this doctrine should look under RETAINER and EXECUTOR as well, since the right is sometimes catalogued under those headings rather than under RETAIN.
In English practice, Black's 2nd edition notes a procedural usage specific to the Judicature Acts of 1873 and 1875: "retaining a cause" was the act of a division of the High Court keeping jurisdiction over a matter wrongly filed in that division rather than transferring it. This usage is jurisdiction- and era-specific and will not appear in American materials.
The Law Mind corpus will reflect evolving usage across centuries. In earlier materials, retain in the possessory sense is common in property and estates passages; in later materials, the practice sense dominates because professional legal relationships became more formally codified. Researchers should anchor to context before assuming which sense a source intends.
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Historical Dictionary Support
All three source dictionaries recognize both the practice meaning (engage counsel) and the possessory meaning (keep in possession), with Bouvier's making the clearest structural separation between the two by presenting them as distinct entries. Black's 1st edition leads with the practice meaning and cross-references RETAINER without elaboration on the possessory sense. Black's 2nd edition adds the English procedural "retaining a cause" usage, which the other sources omit entirely.
Bouvier's citation to 84 Va. 269 for the proposition that "keep is a synonym for retain" points toward the possessory meaning being litigated — a reminder that even apparently simple definitional questions had to be resolved by courts in practice. Neither Black's edition engages with the possessory meaning in substantive depth, meaning researchers who encounter the right-of-retainer doctrine in historical equity materials will find the dictionary entries underinclusive and should look beyond them.
Webster's 1913, notably, captures the Blackstone formulation directly — "An executor may retain a debt due to him from the testator" — demonstrating that the possessory-legal sense had penetrated general reference works by that date and was understood as a term of art, not merely ordinary usage.
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Jurisdictional Note
The executor's right of retainer in the possessory sense was recognized in English equity and adopted in many American common law jurisdictions, but its scope, availability, and limitations vary. Some American courts restricted or abolished it by statute. Researchers should not assume uniform availability across jurisdictions or time periods.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Attorney-Client Relationship; Retainer; Executors and Administrators.
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