Sorted by Commenter - Ethics - State of California

INTRODUCTION
In 1992, the Board of Governors approved the continuing use of the nonrefundable
retainer "earned when paid " as a perfectly appropriate fee arrangement. It
continued use of "fixed fees flat fees " and "nonrefundable retainers" to be earned
when paid, with title immediately transferring to the attorney so long as the written fee
agreement provided that such fees paid in earned when
paid. ) This information was widely publicized. In 1991 , the Committee on Professional
Responsibility and Conduct (COPRAC) first
should explicitly add "nonrefundable retainers" as part of the definition of "true" retainers
earned upon receipt. See May 20, 1991
record as stating it is "concerned" that any proposed rule change not "unduly restrict" a
lawyer s ability to charge a truly nonrefundable retainer in appropriate circumstances. Id.
The Bar has soundly and
retainer: (1) in , (2) in 1997 by COPRAC, and (3) in 2008 by the
Commission. Now again, without notice, process, or opportunity to be heard, the
Commission submitted a proposal to the Board
retainers primarily on the grounds of , we have been
requesting that the Commission demonstrate any pattern of misconduct that would justify
such a ban. It has been unable to do so simply because none
This Proposal to ban nonrefundable retainers is a solution in search of a problem.
Although the Commission s four-person subcommittee (which includes a law professor
consultant, Kevin Mohr, who
knowledgeable in the ethics field, they appear to lack practical experience with how such
a fee actually works in private practice. One
unsupported, undocumented and erroneous assertions that the abandonment of the 2008
proposed Rule 1.5(f) and the creation of
involving fee forfeiture, restraint of legal fees or asset restraint that would deprive clients
of their lawyer of choice in civil and criminal matters. See pp. 29- infra.
It has always been recognized by
including immigration, family law, criminal law, tax law, civil trial practice, and SEC
law, as well as appellate, entertainment and real estate law, that there is nothing about a
nonrefundable retainer that permits a lawyer to charge
excessive fee, , the nonrefundable retainer, as with any other
See October 1992 State Bar Memorandum and attachments (prepared by the Office of
Professional Competence, Planning and Development in connection with a "Request that
the Supreme Court of
Conduct"). To
document was in fact filed with the Supreme Court.
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