Definition
RETAINER has two distinct legal meanings that share only the general idea of holding something in reserve.
1. Attorney Retainer. The act by which a client engages an attorney or counsellor to represent them in a legal matter, whether prosecuting or defending a case. The term encompasses three related but distinct concepts: (a) the act of engagement itself — the formal relationship created when a client secures an attorney's services; (b) the formal notice given by the attorney acknowledging that engagement; and (c) the fee paid to secure those services, often called the retaining fee or advance fee.
A general retainer secures the attorney's availability and commitment not to represent adverse parties, but does not obligate the attorney to perform any specific task. A special retainer engages the attorney for a defined matter or transaction.
2. Right of Retainer (Executor/Administrator). In estate law, the right by which an executor or administrator who is also a creditor of the deceased may retain from the estate's assets a sufficient sum to satisfy their own debt, in priority to other creditors of equal rank. This is a self-help remedy operating by law — the executor need not file a claim against the estate as an outside creditor would; the law permits the offset directly from assets under their control. The right does not, however, elevate the executor-creditor above creditors of superior degree.
Common Language
Modern common usage (Wiktionary): A fee paid to reserve another's time for services; also, a dependent or follower of someone of rank; a paid long-term servant.
Historical common usage (Webster's 1913): One who is retained or kept in service; an attendant or adherent; a servant who occasionally attends and wears a master's livery. Also, the act of keeping dependents.
The common usage correctly identifies the fee sense, but misses the attorney-engagement relationship that the fee creates. In legal contexts, the retainer is not merely the payment — it is the formal act of engaging counsel, of which the fee is just one component. The historical common meaning (a household dependent or livery servant) is entirely separate from either modern legal sense and can mislead researchers working with older texts who encounter the word in a non-legal context.
Common Confusion
The word retainer is used loosely to mean three different things: the act of engagement, the formal notice of engagement, and the fee itself. These are analytically separate. A client may pay a retaining fee without ever formalizing the engagement in writing; an attorney may send notice of retainer without yet receiving the fee. Corpus researchers should be alert to which sense is operative in any given source. Additionally, the two primary legal meanings — attorney retainer and executor's right of retainer — are entirely unrelated beyond etymology, and conflating them in research produces category errors.
Recognized Forms
/SUBTYPES
General Retainer: Secures the attorney's availability and conflict-free loyalty for a period or class of matters. Does not commit the attorney to perform specific work. Most closely analogous to the historical barrister's retainer fee paid in advance.
Special Retainer: Engages the attorney for a specific matter, case, or transaction. Rights and duties are defined by the scope of that engagement.
Right of Retainer (Estate Context): The executor or administrator's legal right to self-help priority recovery from estate assets for a debt owed by the decedent to the fiduciary personally.
Why It Matters in Research
Researchers must hold both meanings in view simultaneously when surveying older sources, because the historical dictionaries treat them as entries under the same heading without always signaling clearly which sense is operative. Black's 1st and 2nd editions present the right-of-retainer (estate) sense first, which can create a false impression that the estate meaning is primary — in modern American practice, the attorney-engagement meaning is by far more commonly encountered.
The distinction between general and special retainer has practical research consequences: historical sources, particularly those covering English barristers' practice, frequently treat all retainers as general in nature, because the barrister system required fees paid in advance before services were rendered. This reflects a professional ethics rationale — advance payment insulated counsel from financial interest in the outcome — that does not map cleanly onto American attorney practice, where contingency arrangements are permitted.
Researchers working in estate law should note that the right of retainer (executor/administrator sense) is largely a common law doctrine that some American jurisdictions have modified or abrogated by statute. Its presence in older digests and treatises should not be assumed to reflect current local law without checking for statutory displacement.
The fee-versus-relationship distinction also matters in legal malpractice and disqualification research. A paid retaining fee does not automatically create a full attorney-client relationship, and courts have divided on exactly when the relationship attaches. Historical sources often elide this question.
Historical Dictionary Support
The historical dictionaries converge on both core meanings but weight them differently and develop them unevenly.
Burrill focuses almost entirely on the executor's right of retainer and presents it as a species of self-help remedy — a useful framing that aligns with Blackstone's treatment. Burrill's characterization of it as "redress by operation of law" captures the doctrinal mechanics well.
Bouvier covers both meanings and is the most structurally clear of the group, distinguishing the act of engagement from the retaining fee and noting that a general retainer gives only the right to expect professional service, not a guarantee of specific performance. This is a practically important point that Anderson's and Black's handle less precisely.
Anderson's provides the strongest account of the professional ethics rationale for advance fees — the argument that paying counsel before trial commenced removed pecuniary interest in the outcome and preserved counsel's independence. This rationale is historically significant but is not reflected in Anderson's as a live principle of modern practice.
Black's 1st and 2nd editions are essentially parallel on both meanings and are reliable for general orientation but add little beyond what Bouvier and Burrill provide. Neither edition develops the general/special retainer distinction with much depth.
Rapalje & Lawrence (appearing in research notes) tracks the estate-side meaning closely and adds the useful point that an executor does not forfeit the right of retainer by instituting an administration suit in the character of creditor — a nuance the other dictionaries omit.
None of the historical sources adequately addresses the question of when a retainer, once given, creates a formal attorney-client relationship for conflict-of-interest or privilege purposes — a question of significant modern importance that researchers will need to pursue in case law rather than in these dictionaries.
Jurisdictional Note
The attorney retainer relationship and its legal consequences are governed primarily by state rules of professional conduct (typically modeled on the ABA Model Rules) and state contract law, producing meaningful variation in what a retainer agreement must contain, whether advance fees are treated as client property held in trust, and when the engagement commences. The executor's right of retainer is a common law doctrine that survives in some American jurisdictions but has been modified or replaced by statute in others; researchers should not assume its availability without jurisdiction-specific verification.