Sorted by Commenter - Ethics - State of California

arrangement, has always been subject to well-established professional rules that apply to
the unscrupulous lawyer nonrefundable
retainer" from a naIve client, does little or no work, and keeps the client's money. These
rules include: (1) the case-by-case Rule against charging excessive fees (Rule 1.5(a)) and
(2) the longstanding Rule requiring lawyers to refund
from representation (Rule 1. 16). , fairness, and the existing protections
against unconscionable fees dictate that under a nonrefundable retainer fee arrangement
if a lawyer does very little or no work, the client is entitled to a full refund.
Similarly, members of the Bar have
client signs an , as with
there are unanticipated events that can result in a total or partial refund. , a
client would be entitled to a full refund if his/her lawyer is sick and
the case. Likewise, an honest lawyer would refund a $10 000 nonrefundable retainer if
shortly after receiving it, the client changes her mind and fires him/her without cause, and
the lawyer has not done any meaningful work.
circumstances, a unconscionable" under Rule
and an honest lawyer would refund all of the unearned portion of the fee.
If adopted, Paragraph (e), designed to essentially abolish nonrefundable retainers
will fundamentally alter the practice of law in California, create unnecessary complexity
and confusion, expose lawyers acting in good faith to disciplinary charges, arbitration
and civil lawsuits, seriously client relationship, prevent many
clients from obtaining representation, and deprive clients of their lawyer of
facilitating the restraint or forfeiture of legal fees. It is contrary to the interests
groups who are most affected, the lawyers and their clients because, for example:
(1)
(2)
The Board of
membership. Considering the
their clients throughout California and the controversy surrounding the Proposal
the Commission should have publicized and/or explained these changes to ensure
that a cross-section of the bar knew of their
could meaningfully respond or object before the Board of Governors' adoption of
the Rule. Although the , 2009 meeting ~ 132, p. 6
reflect that the "Board' s adoption of the proposed rules is subject to consideration
of possible revisions following a comprehensive public comment,
65 other Rules)," such after-the-fact theoretical public comment does not satisfy
the Rule 1. 10(A) requirements of public comment "before adoption" or solve the
notice and process problem.
Paragraph (e) prevents fully-informed clients and their lawyers from knowingly
entering into a nonrefundable retainer agreement that benefits clients.
the reality that since the 19th century,
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