Problem: You’re hiring a criminal defense lawyer for an assault charge in Harris or Galveston County, but the retainer agreement feels like a maze—hourly vs. flat fees, refunds, trust accounts, “non-refundable” clauses, and what happens if you need to change lawyers. One wrong assumption can cost you money, time, and leverage in your case.
Solution: Use this step-by-step guide to read (and negotiate) your retainer like a pro—so you know exactly what you’re buying, how your funds are handled, and how your lawyer is obligated to communicate, protect your confidences, and return your file.
Proof: Texas has clear rules on fees, refunds, and trust accounts, plus ethics opinions that limit “non-refundable” language. We’ll point to the controlling rules as we go, including Texas Disciplinary Rule 1.04 (Fees), the State Bar’s guide on client trust accounts under Rule 1.14, the Professional Ethics Committee’s Opinion 611 on “non-refundable retainers”, termination and file-return duties under Rule 1.15(d), confidentiality under Rule 1.05, and the attorney-client privilege in Texas Rule of Evidence 503.
A retainer agreement is the written contract between you and your lawyer. It defines the scope of work, fees and costs, how your money is held, how you’ll be billed, how the relationship can end, and what happens to your file. It is not a guarantee of results—Texas ethics rules prohibit promises or implications of guaranteed outcomes. See the Texas Disciplinary Rules overview here: Texas Disciplinary Rules of Professional Conduct (official PDF).
Make sure the contract states exactly what’s included: pretrial settings, discovery, motions to suppress, plea negotiations, and whether trial (jury or bench) is included or billed separately. If appeals or expunction/nondisclosure are outside the scope, that should be explicit. Ask for a clean list of in-scope vs. out-of-scope services; many sample contracts show this separation. See a representative example format in this practice template: Attorney Fee Agreements (Texas Bar Practice sample packet).
Under Rule 1.04, fees must be reasonable; criminal defense cannot be contingent on the outcome. Understand which model you’re signing:
Read the fee clause against Rule 1.04 (Fees) and note that contingent fees are barred in criminal matters (see commentary in this Texas Bar Journal note: TDRPC 1.04(e) bars criminal contingent fees).
Tip: Ask for phase definitions (intake/discovery, motions, trial) with pricing per phase. Clarity prevents “surprise” invoices right before trial.
Texas lawyers must safeguard client funds that are not yet earned in a trust account (often IOLTA) and move them to operating only when earned. This is Rule 1.14 territory; the State Bar’s handbook explains how it works: A Lawyer’s Guide to Client Trust Accounts.