Sorted by Commenter - Ethics - State of California

COMMISSION FOR THE REVISION OF THE RULES OF PROFESSIONAL CONDUCT
INTRODUCTION:
* Proposed Rule 1.5, Draft 11 (12/14/09).
RRC - 4-200 1-5 - Compare - Introduction - DFT4 (2-5-10)KEM-RD-RD.doc
Proposed Rule 1.5 * Fees for Legal Services
February 2010
(Draft rule revised following consideration of public comment and conformed to Board action.)
Proposed Rule 1.5 diverges from Model Rule 1.5 in several important respects: (1) An unconscionability standard is incorporated
into the Rule rather than the Model Rule’s “reasonable” fee standard as the bench mark for imposing discipline on lawyers, thus
carrying forward the standard in current California Rule 4-200; (2) Model Rule 1.5(b), which identifies requirements for fee
agreements and Model Rule 1.5(c), which sets forth requirement for contingent fee agreements, have both been deleted because
those topics are already covered in Business & Professions Code §§ 6148 and 6147, respectively [see Explanation of Changes for
Model Rule 1.5(b) and (c)]; (3) Model Rule 1.5(e), which concerns fee divisions among lawyers, has been deleted because that
topic is covered in a separate rule, proposed Rule 1.5.1 [see Explanation of Changes for Model Rule 1.5(e)]; (4) It adds new
paragraph (e), which prohibits lawyers from contracting for, charging, or accepting a non-refundable fee, except for two exceptions,
one for “true” retainers and the other for flat fees that conform to the strict requirements of subparagraph (e)(2) [see Explanation of
Changes for paragraph (e), in part, explaining that fee arrangements used by criminal defense lawyers under the existing California
rules could be perpetuated under the “flat fee” exception]; and (5) It adds new paragraph (f), which prohibits a lawyer from making a
material fee agreement modification that is adverse to a client’s interests unless: (i) the client is represented by an independent
lawyer regarding the modification; or (ii) the lawyer advises the client in writing to seek the advice of an independent lawyer and is
provided a reasonable opportunity to do so. New paragraph (f) was added by the Board to enhance public protection and was
based upon a recommendation by a minority of the Commission [see Explanation of Changes for paragraph (f); see also,
Introduction to proposed Rule 1.8.1].
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