Sorted by Commenter - Ethics - State of California

July 10, 2007 Memo from the
Board of Governors.
The
Standards, Practice, and Principles.
, . " . .
The Commission makes erroneous and unsupported claims that: (a) "
California law, () does make fixed and flat fees refundable (see Commission s October
2009 Introduction to proposed Rule 1. , p. 69) and (b) "stating the
nonrefundable flat fee in the Rule itself explicitly brings current California standards into
the Rule. Id. Current California law does not prohibit nonrefundable fees. Rather than
bringing current California standards into the Rule, as explained in greater detail below
the Proposal creates ambiguities and uncertainties in the Rules by:
(1)
grossly departing from the
standards, practice, and principles governing fee agreements;
(2) grossly departing from and contradicting the form fee agreements (and the
long-standing custom, standards, practice, and principles incorporated in
those agreements)
circulated by the State Bar (and which are still available on its website);
(3) failing to
California Commission on the Fair Administration of Justice; and
(4) taking a position that is inconsistent with the position of two Justices of the
California Supreme Court in People v. Doolin 45 Cal. 4th 390, 460 (2009).
First, the Proposal is a gross departure from "current California standards. " There
are no current California standards that prevent the charging of nonrefundable retainers
flat fees earned when received, and minimum fees. The Proposal contradicts the
conclusion of the Board of Governors on this very issue. The
endorsed by the State Bar and the , recommended minor
reasonable changes to the rules permitting 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 written fee agreement explicitly spelled out the arrangement
with the inclusion of an express statement that such fees paid in advance of legal services
required for the retainer or flat fee portion of the fee (and only if the lawyer and
agree that the fee will be the lawyer s property on receipt). See, e. Washington Rule
Comments (11) and (16).
179