RETAINER (from " retain," Lat. retinere, to hold back, keep), properly the act of retaining or keeping for oneself, or a person or object which retains or keeps; historically, a follower of a house or family, and particularly used of armed followers attached to the barons of the middle ages. John Cowell, in The Interpreter (1607), defines " retainer " as a " servant not meniall nor familiar, that is, not continually dwelling in the house of his lord or master, but onely using or bearing his name or livery."
Retainer of Counsel. When it is considered desirable by a litigant that the services of any particular counsel ( barrister) should be obtained for the conduct of his case, it is necessary to deposit with counsel a form of retainer together with the necessary fee in cash, from which time counsel is bound to give the party who has thus retained him the first call on his services in the matter in which he has been retained. Retainers are either general or special. A general retainer is one which retains counsel for all proceedings in which the person retaining is a party, and lasts for the joint lives of client and counsel. If any other person offers a special retainer or brief against the general retainer, counsel must give the general retainer notice of such offer and if after a reasonable time the general retainer does not himself specially retain or brief counsel, the general retainer is forfeited. A special retainer is one which only applies to some particular cause or action. It can only be delivered after the action is begun, and gives the client a right to the services of counsel throughout the course of the action, and counsel is entitled to be briefed on all occasions to which the retainer applies. Retainer rules were drawn up in 1901 by the Bar Committee, read by the Bar Council and approved by the Attorney-General and the Council xxm. 7 a of the Incorporated Law Society in 1902. They may be found in the Annual Practice.
Retainer of Debt. In connexion with the administration of an estate under a will, it is the right of the personal representative whether executor or administrator of a deceased person to retain legal assets which have come into his hands towards the payment of a debt due to himself as against creditors of an equal degree, and this even though his debt is barred by the Statutes of Limitation. The privilege arose in all probability from the inability of the representative to sue himself, though it has been suggested that it is merely a corollary to the right of the representative to prefer one creditor to another of equal degree. 1 The principle of retainer is not looked upon with favour by courts of equity, and consequently it has long been the rule that there is no right to retain out of equitable assets. It was thought that the effect of the Land Transfer Act 1897 was to make all the assets of the deceased legal assets, and so extend the privilege to reality which had till then been exempt; this view, however, has been repudiated by the courts of equity, and it must now be taken that there is still no right to retain out of real estate. 2 It is a rule of the probate division to require a creditor administrator, to whom letters of administration are granted, to enter into a bond with two sureties not to prefer himself. This course, however, is not followed where administration is granted to a person as next of kin who happens also to be a creditor.
The privilege is not lost by judgment for an account being given in a suit by other creditors for the administration of assets, and the representative may retain out of assets which come to his hand subsequent to such judgment. On the other hand, the appointment of a receiver deprives the representative of his right except as regards assets which come to his hands prior to the appointment of the receiver.
Note - this article incorporates content from Encyclopaedia Britannica, Eleventh Edition, (1910-1911)