Sorted by Commenter - Ethics - State of California

agreement, that result in the refunding of a nonrefundable retainer. The
semantics or the sophistry embraced by some Commission members who assert "there is
no such thing as a nonrefundable retainer." For example, a client would be entitled to a
full refund of the
Similarly, an 000
nonrefundable retainer if, two weeks after , the client fires him/her without
cause and the lawyer has performed little, if any, services. unanticipated
circumstances " a nonrefundable unconscionable" and almost
lawyers would refund the unearned portion of the fee.
nonrefundable retainer works in practice that permits a lawyer
unconscionable fee.
28 The
understood and considered these simple concepts in 1992 see October 1992 State Bar
Memorandum and
Planning and Development discussed supra when they concluded a
earned when received was a perfectly appropriate fee agreement. See discussion at p. 15
supra.
Third, the Proposal is a
there are, no doubt, some lawyers who cheat and gouge their clients while
28 While the Proposal permits the
retainer for availability and does not permit the
29 Though
against the true retainer), see proposed Rule 1.5(e)(I) and Comment (8), the true retainer
is subject to the same
inadvertently become involved in
lawyer only later
Therefore, the lawyer could not
refund a true retainer; or (2) the lawyer could get sick and not be able to
client if a civil or criminal case is filed. Therefore, once again, a refund would have to be
made of the "true retainer.
The Commission s treatment of
nonrefundable retainer is neither consistent nor justifiable.
29
. .
overreaching and confusion. The
different fee arrangements involving flat or fixed fees. While a lawyer may
require advance payment of a fixed or flat fee, the lawyer remains obligated
under the rules in all jurisdictions, including Washington, to return any
unearned portion. See 16( d);
161