By Neta, founder of SortMyDivorce · Updated
Somewhere in the middle of a divorce a short letter arrives from your own lawyer: the retainer is nearly exhausted, please provide a further sum. It is the most common letter a family law client receives from their own side, and the most often paid without a question. This guide is about what the professional rules require a lawyer to tell you about fees, what a replenishment request should come with, how to ask for an interim account when it does not, and where the line is between an unpaid retainer and a lawyer who is allowed to leave. This guide quotes the Canadian Model Code, which every provincial law society has adopted in its own version. United States rules on fees and withdrawal are structured similarly but worded differently by state. Nothing here states a fee, a rate or a retainer amount; the figures in your case are in your retainer agreement, and the separate guide on retainer agreements covers what that document should say.
| The fee rule | Model Code 3.6-1: a lawyer "must not charge or accept a fee or disbursement, including interest, unless it is fair and reasonable and has been disclosed in a timely fashion." |
|---|---|
| What you should have been told at the start | Commentary [3]: in writing, "as much information regarding fees and disbursements, and interest, as is reasonable and practical," including "the basis on which fees will be determined." |
| What you should be told as it goes | Commentary [4]: an "immediate explanation" when "something unusual or unforeseen occurs that may substantially affect the amount of a fee," and written confirmation of "all fee discussions that occur as a matter progresses." |
| What a bill must show | 3.6-3: "clearly and separately detail the amounts charged as fees and disbursements." |
| A replenishment request is not a bill | It asks for money on account. It does not, by itself, tell you what the last money bought. |
| The interim account | The document that does: a statement of the time, the disbursements and the trust balance to date. Ask for it. |
| Non-payment and withdrawal | 3.7-3: a lawyer may withdraw for non-payment only "after reasonable notice" and "unless serious prejudice to the client would result." |
| What a retainer is | Money held in trust, applied to accounts as they are rendered. It is your money until it is billed. |
Keeping track of dates like these across a stack of letters is exactly what SortMyDivorce does — start a free trial, no card needed.
A retainer, in the sense used in a family law file, is a sum you pay at the start that the lawyer holds in trust. As work is done, the lawyer renders accounts and transfers the billed amount out of trust. When the trust balance drops below a level set in the retainer agreement, the lawyer asks for more. That is the replenishment letter.
Two things follow from that structure.
The money in trust is yours until it is billed. A replenishment request is a request to top up your own funds in the lawyer's trust account, not a payment for anything in particular.
A replenishment letter is not an account. It says the balance is low. It does not say what the previous balance was spent on. Those are different documents, and the second is the one that tells you what your case is costing.
Model Code rule 3.6-1 is the governing provision: "A lawyer must not charge or accept a fee or disbursement, including interest, unless it is fair and reasonable and has been disclosed in a timely fashion."
The commentary makes disclosure a continuing duty, not a one-time one.
At the start, paragraph [3]: "A lawyer should provide to the client in writing, before or within a reasonable time after commencing a representation, as much information regarding fees and disbursements, and interest, as is reasonable and practical in the circumstances, including the basis on which fees will be determined."
As the matter goes on, paragraph [4]: "A lawyer should be ready to explain the basis of the fees and disbursement charged to the client. This is particularly important concerning fee charges or disbursements that the client might not reasonably be expected to anticipate. When something unusual or unforeseen occurs that may substantially affect the amount of a fee or disbursement, the lawyer should give to the client an immediate explanation. A lawyer should confirm with the client in writing the substance of all fee discussions that occur as a matter progresses, and a lawyer may revise an initial estimate of fees and disbursements."
That last sentence is the one to hold a replenishment letter against. If the retainer is exhausted sooner than the initial estimate suggested, something has affected the amount of the fee, and paragraph [4] says you should have an explanation.
Paragraph [1] lists what makes a fee fair and reasonable, and it is a useful checklist for reading any account: "the time and effort required and spent," "the difficulty of the matter and the importance of the matter to the client," "the results obtained," "any relevant agreement between the lawyer and the client," "any estimate or range of fees given by the lawyer," and "the client's prior consent to the fee," among others.
Rule 3.6-3: "In a statement of an account delivered to a client, a lawyer must clearly and separately detail the amounts charged as fees and disbursements."
The commentary explains the two categories: "A lawyer may charge as disbursements only those amounts that have been paid or are required to be paid to a third party by the lawyer on a client's behalf. However, a subcategory entitled 'Other Charges' may be included under the fees heading if a lawyer wishes to separately itemize charges such as paralegal, word processing or computer costs that are not disbursements, provided that the client has agreed, in writing, to such costs."
So an account that lumps everything into one figure does not meet the rule. Fees are one thing; disbursements, meaning money actually paid out to third parties such as the court or a process server, are another; and "other charges" for internal costs may appear only under fees and only if you agreed to them in writing. The separate guide to reading a lawyer's bill covers the entries in detail.
If a replenishment letter arrives without an account, the right response is not to refuse and not to pay blind. It is to ask for the account first. Most retainer agreements provide for interim billing, and many lawyers bill monthly as a matter of course; if yours does not, ask.
What to request, in one short letter:
An interim statement of account to date, showing fees and disbursements separately, as rule 3.6-3 requires, with the time entries that make up the fees.
A trust statement, showing what was received into trust, what was transferred out against which accounts, and the current balance.
The explanation paragraph [4] contemplates, if the retainer has run down faster than the estimate: what happened, and what it means for the estimate going forward.
A revised estimate to the next milestone, whether that is the case conference, the completion of disclosure or the settlement conference. A replenishment request should be sized to something.
None of that is adversarial. It is the information the commentary says a lawyer "should be ready to explain," asked for in writing so that the answer is in writing too.
Match it to the estimate and the retainer agreement. The basis on which fees are determined, the billing increment and who does the work are all in the agreement. An account that departs from them is one to ask about.
Match it to the correspondence. Every letter received and sent, every court step and every meeting is a dated event in your own record. An account is a list of dated time entries. The two should tell the same story, and where they do not, that is the question to put.
Look for the paragraph [4] events. A motion nobody expected, a disclosure fight, a change of the other side's lawyer. Each is "something unusual or unforeseen" and each should have come with an explanation at the time, not on the bill.
Separate what is fees from what is disbursements. A large disbursement, such as an expert's report, may be entirely proper and still be the reason the retainer ran out. The rule's point is that you should be able to see which it was.
If you do not replenish, the lawyer may eventually withdraw, but the rule has conditions. Model Code 3.7-3: "If, after reasonable notice, the client fails to provide a retainer or funds on account of disbursements or fees, a lawyer may withdraw unless serious prejudice to the client would result."
The commentary: "When the lawyer withdraws because the client has not paid the lawyer's fee, the lawyer should ensure that there is sufficient time for the client to obtain the services of another lawyer and for that other lawyer to prepare adequately for trial."
So there are two protections. Reasonable notice comes first, and a replenishment letter is usually the beginning of that notice, not the end of it. And withdrawal cannot proceed where serious prejudice would result, which in a family case means a hearing that is too close for a new lawyer to prepare. The separate guide on a lawyer withdrawing covers what happens next.
What does not help is silence. A client who cannot replenish and says nothing is the client the rule is written against. A client who writes, asks for the account, and proposes a timetable or a reduced scope has given the lawyer something to answer, and has created the record that paragraph [4] and rule 3.7-3 both turn on.
Asking for the account is the first step, not the last. If the fees are not what the agreement provides, if the disbursements do not match what was paid out, or if the time does not match the correspondence, the routes for challenging a lawyer's bill are set out in a separate guide, province by province and in the United States. Rule 3.6-11 provides for the case where an account is reduced on a review. None of that is possible without the account in hand, which is why the request for it comes before the replenishment, not after.
Verification note. This page rests on the national Model Code; each provincial law society's rules carry the same numbering but may differ in wording, and none could be read from the law societies' own sites in this pass. United States rules on fees and withdrawal are not quoted. The description of how a retainer is held in trust and applied to accounts is general practice, not a quotation from a rule; the mechanics in your case are in your retainer agreement and your province's trust accounting rules.
Nothing in the rules quoted here requires you to. The retainer agreement sets the replenishment terms, and the commentary requires the lawyer to be ready to explain the basis of the fees and to give an immediate explanation when something unforeseen affects them. Ask for the account and pay on the strength of it.
A retainer is money held in trust on account of future fees. A bill, or statement of account, is the lawyer's charge for work done, and rule 3.6-3 requires it to show fees and disbursements separately. Money moves from trust to the lawyer only when a bill is rendered.
An estimate may be revised, and the commentary says so. It also says that when something unusual or unforeseen substantially affects the fee, the lawyer should give "an immediate explanation," and should confirm fee discussions in writing as the matter progresses. If neither happened, ask for both now.
Yes. Interim accounts are ordinary in family law practice, and many retainer agreements provide for them. If yours does not, ask for it to be varied, in writing.
Rule 3.7-3 allows withdrawal for non-payment only after reasonable notice and only if serious prejudice would not result. A lawyer who receives a written explanation and a proposed timetable has been given the reasonable notice the rule contemplates from your side, and is less able to say that withdrawal is justified.
See the guide to challenging a lawyer's bill for the review routes in each province and in the United States. The first step everywhere is the same: get the account, in the form rule 3.6-3 requires.
Last reviewed September 2026. Researched and written by Neta, founder of SortMyDivorce. I am not a lawyer and this is not legal advice — laws, fees and forms change, so please confirm current details with the official sources above or a local family lawyer.
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