Sorted by Commenter - Ethics - State of California

pattern of
protection. The prohibition stated in the introductory clause of paragraph
(e) is subject to two traditional exceptions, as discussed below. Much of the
language used in this
(Commission s Explanation of Changes to the ABA Model Rule, Exh.
21 at p.
Executive Summary
The Commission, however, fails to demonstrate that clients need protection from a
nonrefundable retainer.
pattern of knowing abuse involving nonrefundable retainers. The Commission has failed
to cite a single, recent reported California case to support the need for
edespite our repeated requests since 1991).
22 It
Californian lawyers have been using some form of the
outside of the limited exceptions to
(e)(1) and (2)) since the 19
abuse.
th century without creating any identifiable pattern of willful
The Commission ignores and fails to disclose that in 1992 the Board of Governors
concluded that a nonrefundable retainer "earned when paid" was a perfectly appropriate
fee arrangement. The Board 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 explicitly spelled out the
21 On October 23 , 2009, Randall Difuntorum
Proposed New and
California, Batches 1 , 2 and 3 -
Board of Governors and the
Admissions. 000 pages of exhibits
(Exh. 1 (includes Introduction and Dashboard for proposed Rule 1.5) - 922 pages, Exh. 2
- 1022 pages, and Exh. 3 , Exh. 4 -
22 It similarly
March 2008 Discussion Draft of the
or anywhere on the State Bar website.
23 There are a myriad of examples of legal
5(f) anywhere in its 209-page
have traditionally involved , fees earned , and
minimum fees that are not calculated based on the time devoted to the assignment.
legal transactions are in a variety of practice areas, including: (1) real estate, (2) criminal
law, (3) securities, (4) family law, (5) tax, (6) entertainment, (7) bankruptcy,
immigration, (9) appellate law, and (10) SEC matters.
158