Sorted by Commenter - Ethics - State of California

Nothing in the intervening 75 years warrants changing that standard. The public is provided sufficient protection against avaricious
lawyers through the civil court system and, in extreme cases such as those described in the preceding paragraphs, through
imposing discipline on lawyers who charge, contract for or collect an unconscionable fee.
Minority. A minority of the Commission takes the position that proposed Rule 1.5 falls short of the Commission’s charge to update
the California Rules of Professional Conduct to “[a]ssure adequate protection to the public in light of developments that have
occurred since the rules were last reviewed and amended” and to “[p]romote confidence in the legal profession and the
administration of justice.” It contends that by retaining “unconscionability” as the standard for imposing discipline under the Rule,
the majority sends a regrettable message to the public and profession alike that California tolerates lawyers charging their clients
unreasonable fees. This is an area where the Commission and the Board of Governors should reassess the continued viability of
the Herrscher decision, on which the Commission majority has placed great reliance. The concerns the Supreme Court expressed
75 years ago about the efficacy of inquiring into the reasonableness of fees should not control the debate for a self-regulating
profession in this sensitive area of lawyer-client relations. Moreover, the proposed Rule is out of step with virtually all other states
on the subject of lawyer’s fees. Only California and Texas adhere to an “unconscionable fee” standard. A clear majority of the
remaining jurisdictions states have adopted the more public protective Model Rule standard which prohibits lawyers from charging
“unreasonable fees,” while a handful have retained the “clearly excessive” standard from the 1969 ABA Code of Professional
Responsibility.
The minority further contends that even if Herrscher remains sound public policy in modern practice, there is no support in the law or
in the rules of any jurisdiction for the provision in proposed rule 1.5(a) that permits lawyers to make an agreement, charge and
collect unreasonable or excessive expenses so long as the expenses are not “unconscionable.” The prohibition against charging
unreasonable expenses is generally accepted in all jurisdictions including California. See current rule 4-210 (lawyer may advance
reasonable expenses of litigation or in providing any legal service to the client); ABA Formal Opinions 93-379. There is no sound
reason for departing from the Model Rule on this important issue of public protection.
Non refundable fees. During the public comment period, members of the California criminal defense bar and some of their
RRC - 4-200 1-5 - Compare - Introduction - DFT4 (2-5-10)KEM-RD-RD.doc
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