Sorted by Commenter - Ethics - State of California

the country. The issue is of substantial concern to many California criminal defense lawyers and
their clients. It also has national significance insofar as other jurisdictions may look to California
for purposes of fashioning ethics rules.
Flat fees agreements have the benefit of allowing persons under investigation or accused
of crimes, at the inception of a matter, to secure representation that is assured to continue
throughout the duration of the matter unless the client chooses otherwise, or unforeseen
circumstances arise, such as the death of a client or counsel or an unforeseen conflict of interest.
The proposed rule discourages flat fees by making flat fees received by counsel vulnerable to
third-party claims against clients and/or their property, forfeitures, jeopardy assessments,
seizures, liens and attachments. These types of claims would be asserted against counsel
because of the inchoate interest the proposed rule appears to give a client in fees which
purportedly were the “lawyer’s property on receipt.” This additional potential risk and expense
will cause many, if not most, criminal defense lawyers to decline to agree to represent clients on
a flat fee basis.
Discouraging counsel from using flat fee agreements is a disservice to those clients who
may desire such fee arrangements. Flat fee arrangements allow persons who are under
investigation or accused of offenses to plan in advance and reduce the risks they face. If such
persons were unable to secure representation in a matter for a flat fee, they would receive the
services of counsel retained on an hourly basis only as long as they could continue to compensate
counsel on an hourly basis. While wealthy clients could assume such a risk, most could not.
Flat fees, therefore, provide clients the most affordable representation while also assuring that
they will not be beggared by litigation and forced to rely upon forms of public assistance.
In contrast to a client who retains counsel for a flat fee, a client who retains counsel on an
hourly basis may be forced to seek the appointment of counsel at public expense, or seek the
services of a less expensive lawyer, if a matter progresses to a point where the client can no
longer afford to pay existing counsel on an hourly basis. Because of the uncertain nature of
criminal cases, estimating at the inception of a matter how long it will take to represent a client
competently and effectively is inherently challenging. Flat fee agreements place the bulk of the
risk upon lawyers, and enable risk-sharing between clients and defense counsel. A virtual ban on
flat fees – as would result from adoption of the proposed rule – will shift the entire burden to
clients and disproportionately burden less wealthy individuals.
If a flat fee agreement were agreed upon by a client and lawyer notwithstanding adoption
of proposed rule 1.5(e)(2), counsel would be vulnerable to becoming embroiled in costly
litigation over third-party claims asserted against counsel, forfeitures, jeopardy assessments,
seizures, liens, and attachments based on the debts or other obligations of clients. This would
interfere with attorney-client relationships by creating potential conflicts between lawyers and
their clients. It also would unfairly penalize lawyers in practice areas in which flat fee
agreements are commonplace, including criminal defense, among others.
Proposed Rule 1.5(e)(2) is unnecessary in light of the prohibition of unconscionable fees,
a uniform standard applicable to all types of fee arrangements, including contingency, hourly and
flat fees. This standard is sufficient to protect clients from being charged unreasonable fees, and
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