Sorted by Commenter - Ethics - State of California

lawyer and client asserting that the "flat fee is the lawyer s property on receipt." The
forfeiture and restraining order situations is not what the fee is called but
pp. 31-35.
Almost certainly, in spite ofthe legally and factually unsupported claim by the Commission that these
changes have eliminated fee restraint and/or fee forfeiture problems, in reality the changes have aggravated
this serious problem, see Opposition pp. 29-35. Abolishing the nonrefundable retainer, that for years has
protected clients and lawyers from fee restraints, fee forfeiture , will expose lawyers
performing many types of legal work to great financial risk. It will facilitate the restraint or seizure of fees
ifthe client has a potential , securities law, bankruptcy, criminal law, tax law
and even some creditors' claims. The enclosed opposition analyzes these significant problems and poses the
question of: why enact this novel and untested fee arrangement that will result in
when for more than 40 years the nonrefundable retainer has proved to be the best available fee agreement to
protect the client and lawyer from fee restraint and/or fee forfeiture?
The proposed Rule changes and
Rule 1. 5( e )(2)'s , detailed wording be included in flat fee agreements presents
a trap for the honest lawyer who is unfamiliar with these new Rules and the complex fact patterns that will
develop. It will also certainly
until now have been considered and were in fact earned when
arbitration demands, bar complaints, and civil suits. Of course, if a lawyer has seriously underestimated the
work involved in a complicated "flat fee" case, which often occurs, ordinarily he will never be discharged
without cause.
As I understand the ongoing developments, a number of bar associations will join in opposing these
radical changes. I sincerely hope you have the opportunity to review this submission that incorporates in one
document the arguments advanced by the opposition, factually and legally analyzes why a nonrefundable
retainer is a necessary and appropriate fee arrangement, responds to the arguments advanced by the
on the
Rule 1.5(
BT/sew
Enclosure
Thank you for your consideration.
cc: Audrey Hollins
Sincerely,
TARLOW &BERKPC
f;~
Barry Tarlow
134