Sorted by Commenter - Ethics - State of California

etainers will in essence make these fee payments the property of the client until the work
is performed, regardless of the characterization of the intent of the lawyer or client set out
in a written fee agreement. This will expose
to great financial risk by facilitating the restraint or seizure of their fees if the client has a
potential problem involving securities law, criminal law and jeopardy tax assessments
and even certain types of creditor claims.
The Commission has repeatedly asserted, both directly and
1.5(e) will solve the
extensive negative public comments directed at Rule See, e.
g.,
Agenda Item re:
Proposed New
California, Batches 1 , 2, and 3 - Return from Public Comment, Combined Attachment 1
p. 69 (October 23, 2009)eclaiming that the changes to Rule should assuage the
concerns raised by the criminal defense bar ). In fact, in explaining the proposed addition
of Rule , the Commission asserted that subparagraph
(2) was specifically drafted so as to avoid the restraining order/fee forfeiture problems.
35
Subparagraph (1) (
concerns raised by
prohibiting such earned-on-receipt flat fees and requiring all such fees paid
to criminal defense lawyers to be , could
government impounding the fee advance, thereby preventing a criminal
defendant from
Commission
subparagraph will operate to prevent abuses
avoid the problems envisioned by the defense bar." See Agenda Item re:
Proposed New and Amended Rules of
Bar of California, Batches 1 , 2, and 3 -
Combined Attachment 1 , p. 77-78 (October 23 2009).
The Commission made similar assertions in its summary of the 2008 public
regarding Rule 1.5et).
comment critical of the Rule 1. 5et) prohibition on nonrefundable retainers, including all
of the comments focused on the restraining order/fee forfeiture issues, with an assertion
that subparagraph (2) alleviates any and all
words: "To address the commenter s concerns. . . the Commission revised the
to advance fee payments in paragraph (e) of the Rule " by adding subparagraph (2). Id.
94- 130.
166