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argain for further assistance in the midst of a proceeding or transaction. However it is proper to define the extent of services in light of the client's ability to pay. (7) Every fee agreed to, charged, or collected, including a fee that is a lawyer property on receipt under paragraph (e)(1) or (e)(2), is subject to Rule may not be unconscionable. (8) Paragraph (e)(I) , which is general retainer " or "classic retainer." A true retainer secures availability alone that is, it presumes that the lawyer is to be additionally compensated for any actual work performed. Therefore, a availability, but that will be applied to the client' s account as the lawyer renders services, is not a agreement should specify the time period or purpose of the lawyer s availability, that the client will be , and that the lawyer will treat the payment as the lawyer s property immediately on receipt. (9) Paragraph (e )(2) describes a fee structure flat fee . A flat fee constitutes complete payment for specified legal services, and does not vary with the amount of time or effort the lawyer specified services. If the , a flat fee received in advance must be treated as an advance for fees. See Rule 1. 15. The Proposal is the latest effort by the Commission to prohibit nonrefundable retainers 7 in California. Past efforts to abolish the nonrefundable retainer The Proposal is the latest effort by the Commission to amend Rule 1.5 (4-200) to abolish nonrefundable 8 and 20089 and by the made by the Commission in 1991 7 " Nonrefundable retainer" refers to nonrefundable retainers, true retainers, advance fees earned when received, and minimum fees. See proposed and rejected amendments to State Bar Rule 4- 100 (Preserving Identity of Funds and Property of a Client) and Rule 3-700 of the Rules of Professional (Termination of Employment) (1991). The vast majority of the public comment was in opposition to the proposed , which were ultimately withdrawn. 9 A 209- page Discussion Draft for , including proposed Rule 1.5et), is posted on the State Bar website. Proposed Rule 1. 5(t) stated: 150
Responsibility and Conduct 10 They were soundly rejected based e"COPRAC") in 1997. on the overwhelming number of California lawyers. In fact, in 1992, the Board of earned when paid" Governors endorsed the 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 inclusion of an express statement that such fees paid in earned when paid. See October 1992 State Bar Memorandum (prepared by the Office of Professional Competence, Planning and Development). Indeed, it was COPRAC that first suggested (see May 20, 1991 COPRAC memorandum) that any change to the rules should explicitly add "nonrefundable retainers" as part of the definition of "true" retainers earned upon receipt. concerned" that any proposed rule change not "unduly ability to nonrefundable retainer in appropriate circumstances. Id. In August 2008, the Commission scrapped the pending proposed revision to Rule 1.5(t) and instead decided to redraft Rule that nonrefundable fees for the performance of future services would be prohibited; (2) lawyer , charge, or nonrefundable fee, except that a lawyer may make an agreement for, charge or collect a true retainer fee that is paid solely for the purpose of ensuring the availability of the lawyer for the matter. Aside from the posting of this 209-page Discussion of 13 proposed Rules on the state bar website, the proposed revision to abolish nonrefundable fees, as far as we know, was not publicized other than a short article in the May 2008 California Bar Journal that made no mention of nonrefundable retainers. Most that these significant changes to Rule 4-200 had been proposed. For a more discussion of the majority of the Bar membership, see pp. 7- supra. 10 See proposed and rejected State Bar Rule 4- 11 0 Services) and 700 (Termination of 100 Preserving Identity of Fund and information on the proposed the State Bar website. 151
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No. Commenter Position 1 Comment on
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No. Commenter Position 1 10 Crimina
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RRC - Rule 1.5 [4-200] E-mails, etc
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ARBITRATION ADVISORY 01-02 RRC - Ru
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May 25, 2010 Martinez E-mail to Son
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Rule 1.5 - Public Comment - File Li
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Page 85 and 86: STROOCK April 2, 2010 Michael F. Pe
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Page 151 and 152: BIOGRAPHY Page scholar " the "ultim
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the country. The issue is of substa
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□ ABA Model Rule substantially ad
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COMMISSION FOR THE REVISION OF THE
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Nothing in the intervening 75 years
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Should it be Deposited?, 1 Fla. Coa
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ABA Model Rule Rule 1.5 Fees (1) th
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ABA Model Rule Rule 1.5 Fees (b) Th
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ABA Model Rule Rule 1.5 Fees (e) A
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ABA Model Rule Rule 1.5 Fees Commis
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ABA Model Rule Rule 1.5 Fees Commen
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Terms of Payment ABA Model Rule Rul
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(a) A lawyer shall not make an agre
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Non-refundable Fee [1B] Paragraph (
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[9] Paragraph (e)(2) describes a fe
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(2) a contingent fee for representi
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[5] An agreement may not be made wh
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(1) a lawyer may charge a true reta
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[5] An agreement may not be made wh
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This concept comes out of early cas
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criminal cases but not in matrimoni
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In civil matters, New York lawyers
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“obtained in advance of the rende
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No. Commenter Position 1 6 Californ
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No. Commenter Position 1 37 Santa C
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No. Commenter Position 1 39 State B
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ARBITRATION ADVISORY 01-02 RRC - Ru
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