Sorted by Commenter - Ethics - State of California

arrangement with the inclusion of an express statement that such fees paid in advance of
legal services are "earned when paid. 24 See supra p. 15.
Aside from the unsupportable position that in California this novel rule is justified
by the need for client protection, most of the Commission s arguments are essentially
sophistry. To justify
Commission advanced the startling there is no
nonrefundable retainer supra pp. 16- 17 in spite of, for example, its specific approval by
the Board of Governors in 1992. Indeed, in many jurisdictions the use of nonrefundable
retainers has been recognized for decades as appropriate, if not essential, in both criminal
and civil cases. 25
utilized nonrefundable retainer (with the
discussed above), the Commission has not, and indeed cannot, demonstrate: (1) any need
to completely alter the way law has been
novel procedure will work in the actual practice of law.
24 Ironically, it was
(see May 20, 1991
memorandum) that nonrefundable
retainers " as part of the definition of "true retainers" earned upon receipt. COPRAC is
also on record as stating it is "concerned" that any proposed rule change not "unduly
restrict" a lawyer s ability to charge
circumstances. Id.
25 John
, Criminal Defense Ethics 2d: Law & Liability, 9 10.1 , at 455 (2009).
See also, e. John Wesley Hall , Jr., Professional Responsibility in Criminal Defense
Practice (2d ed. 2005) at 9 7:9 (m)ost ethics committees to have
passed on the question permit
retainers are permissible if properly handled") (emphasis deleted); Bunker v. Meshbesher
147 FJd Grievance Administrator v. Cooper
SC135053 (December 12, 2008) (Michigan Supreme Court
minimum fee with incurred upon
agreement, regardless of
perfectly appropriate); In re Connelly, 203 Ariz. 413 (2002) eArizona); In re Kendall 804
2d 1152 (Ind. 2004 (Indiana); Tennessee Op. 92- 128(b) (1993) ereaffirming earlier
opinion approving nonrefundable retainers); Georgia Op. 03- 1 (2003) (affirming use of
nonrefundable retainers); 16e d) e"The
reasonable nonrefundable retainer. ); Texas Op. 431
nonrefundable retainers); Maryland Op. 87-9 (a nonrefundable retainer is ethically proper
so long as the amount involved is reasonable); Louisiana Rule 1.5(t)(2) ("When the client
pays the lawyer all or part of a fixed or of a minimum fee for a particular
with services to be rendered in the future, the funds become the property of the lawyer
when paid... ); Kentucky Op. 380 (1995) (affirming use of nonrefundable retainers).
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