A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Wednesday, December 17, 2008


Main Entry: non·re·fund·able
Function: adjective
: not subject to refunding or being refunded (a nonrefundable bond) (a nonrefundable fee)

There are certain things we all at least seemingly understand:

[1] "No" means "no,"

[2] "Unsubscribe" means stop sending me annoying e-mails,

[3] "Nonrefundable" means your money is not refundable, unless you agree in writing that it is nonrefundable and the person with whom you make the agreement is a criminal defense lawyer and you are not happy, don't think it "took as long" as anticipated, or decide mid-stream that you want to hire another lawyer who isn't "just trying to get you to plea guilty."

I have decided, today, that I will no longer simply include the word "nonrefundable" in my retainer agreements with a detailed explanation of the word "nonrefundable and how it affects the retainer agreement, i.e. you're not getting your money back if you choose to hire another lawyer, have a dispute with this lawyer, or otherwise wish to cancel the agreement.

What I am going to do from now on is provide the client with a separate document solely discussing the word "nonrefundable."

I am doing this because I am tired of explaining it to clients, having them nod in agreement, some acting like they are listening to me re-state the obvious, and then at some point, asking for money back.

Case in point.

I am hired to represent someone arrested in a federal case. The family comes in and has one goal in mind. Can you guess what it is? That's right, "get him out." I quote them a nonrefundable fee, put two lawyers on the case, visit the client several times, prepare for the bond hearing and voila - the judge is considering overriding the governments recommendation of no bond and asks for research, adjourning the hearing for a couple days.

The family, not pleased that the judge did not jump out of her chair at the notion that the government was seeking detention on this manslaughter case and order the defendant immediately released with the apologies of the court and the United States, fired me.

That was six months ago, and two lawyers ago.

Today I get a typewritten letter asking for a "detailed invoice," and a "check for the unused portion of the retainer."

The nonrefundable retainer.

As a young criminal defense lawyer I used to shudder when a client requested a "refund" of fees. Now, I just get annoyed, but write no checks, ever.

See, the reason we criminal defense lawyers are known for "getting the fee up front" is because we sometimes don't get the entire fee if things don't go well. The definition of "things not going well" vary, but usually entail anything less than what the client expected.

Because we cannot be in the "satisfaction" business, we have to protect ourselves, like other professionals and businesses. We have to protect ourselves from those clients who believe they can agree to something, and then break that agreement and think that the lawyer will cower or not pursue payment because we are afraid of our state bar association.

I'm not afraid.

I'm not afraid, and I counsel all criminal lawyers that ask - not to submit to the threats of bar complaints and lawsuits by writing checks to a dissatisfied client.

Try that with a doctor and see what happens. "Doc, you said I would feel better in a week and I don't, how 'bout refunding that co-payment?"

But thank you for your letter.

Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court. Read his free ebook The Truth About Hiring A Criminal Defense Lawyer. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com


okdork.com rules Post to Twitter


  1. How do you really feel about this?

    Here's the language from my contract. I don't use the word "nonrefundable" since the Colorado Supreme Court whacked a lawyer for calling a fee "nonrefundable."

    A “contract fee” means that you and I agree to consider the fee earned upon payment, regardless of the outcome of Brian’s case. I will devote as much time as necessary to Brian’s case, but the contract fee will not be increased or decreased based upon the hours spent on Brian’s case. In other words, the contract fee is not a so-called “advance fee payment” or “retainer fee” that I will hold in trust and draw from as I go along working on your case. Instead, a contract fee becomes my property at the time you pay me.

  2. Also, I include this language:

    Further, it is understood that any money paid by any third party is paid on behalf of Brian and not of the third party.

    I've never had a client complain about the money he paid me; I want to make it as clear as I can that momma doesn't have any claim to the money after I'm paid.

  3. Anonymous12:26 PM

    My partner says sagely that sometimes you make more money by turning a case down than you do by taking it.

    Some clients are outraged that we require a substantial fee deposit or a substantial flat fee. "I would never stiff you on your bill," they say angrily.

    That's a good sign that they will be trouble.