Sorted by Commenter - Ethics - State of California

The Commission recommends that California retain the unconscionability standard for disciplining lawyers that is found in current
rule 4-200. Seventy-five years ago, in a case seeking disbarment of an attorney, the California Supreme Court rejected a
“reasonable fee” standard in discipline:
We think the proper rule in such cases is that the mere fact that a fee is charged in excess of the reasonable value of the
services rendered will not of itself warrant discipline of the attorney involved. Ordinarily, the propriety of the fee charged should
be left to the civil courts in a proper action. As was said by the Washington court in Re Wiltsie, 109 Wash. 261, 186 P. 848:
“The board also found, as one of the grounds for his disbarment, that the charges made for these services were excessive.
We do not feel like depriving a practitioner of his right to continue his profession on a question as debatable as the propriety of
the amount of a fee. Such a question is so much a matter of individual opinion that it should not be the basis for disbarment,
except in the most aggravated and extreme case. So far as the record discloses, the fees were voluntarily paid, and, were it
the only charge here that such fees were excessive, the extreme penalty would not be merited.”
See Herrscher v. State Bar (1934) 4 Cal.2d 399, 402-403 [49 P.2d 832] (citations omitted). The Court then went on to state what
it believed was the appropriate test for imposing discipline on a lawyer:
In the few cases where discipline has been enforced against an attorney for charging excessive fees, there has usually been
present some element of fraud or overreaching on the attorney's part, or failure on the attorney's part to disclose the true facts,
so that the fee charged, under the circumstances, constituted a practical appropriation of the client's funds under the guise of
retaining them as fees.
Generally speaking, neither the Board of Governors nor this court can, or should, attempt to evaluate an attorney's services in
a quasi-criminal proceeding such as this, where there has been no failure to disclose to the client the true facts or no
overreaching or fraud on the part of the attorney. It is our opinion that the disciplinary machinery of the bar should not be put
into operation merely on the complaint of a client that a fee charged is excessive, unless the other elements above mentioned
are present. (Emphasis added) (Citations omitted).
RRC - 4-200 1-5 - Compare - Introduction - DFT4 (2-5-10)KEM-RD-RD.doc
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