Sorted by Commenter - Ethics - State of California

are "earned when paid. " This determination , my
law firm and others have often included this specific concept "earned when received" in
nonrefundable retainer fee agreements
Without justification, the
heading in the exact opposite direction by improperly
fee for services that is fully earned when paid.
Moreover, the limitations on the use of a "true retainer" prohibiting the use of the
funds to do legal work (and if the lawyer , seemingly requiring a true
retainer for availability to then be see Comments (8) and
(10), ignore the financial
consider the use of a hybrid fee that reflects the reality of the actual practice of law see
pp. 17- supra. While the Commission s asserted intent is , in
practice (and as discussed on pp. 17- supra), the Proposal disadvantages the consumer
by prohibiting the lawyer from giving the client any credit, hourly or fixed fee, for money
paid as a true retainer when the lawyer (as will happen in literally every case) is required
to do the work. Therefore, the client is forced to pay additional legal fees even
she has already paid the true retainer.
Second, the written advisement set out in proposed Rule 1. 5( e
may be entitled to a refund of a portion of the fee if the agreed upon legal services have
not been completed" is a radical departure not only from existing California practice, but
from the fee agreements and flat fee principles and form agreements that are (and have
been for years) endorsed and circulated by the State Bar (and which are still available on
its website see California State Bar s sample written fee agreement "fixed fee clause
form ). The fixed fee clause" distributed in the form fee
State Bar (and then likely included in hundreds of fee agreements across the spectrum of
specialties) explicitly provides that:
unless the attorney withdraws before the completion of the services or
otherwise fails to perform services contemplated under the agreement
the fixed fee will be earned in full and no portion of it will be refunded
once any material services have been performed.
The current standards, custom, and practice (endorsed
fixed fee clause" are , which in
(e)(2)(iv) and (v) permits a client to terminate representation without cause, before all of
50 , last amended on
June 23 , 2005 , and available on the California Bar web
http://www.calbar.ca. gov /
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