Sorted by Commenter - Ethics - State of California

ABA Model Rule
Rule 1.5 Fees
(a) A lawyer shall not make an agreement for,
charge, or collect an unreasonable fee or an
unreasonable amount for expenses. The factors
to be considered in determining the
reasonableness of a fee include the following:
Commission’s Proposed Rule *
Rule 1.5 Fees for Legal Services
(a) A lawyer shall not make an agreement for,
charge, or collect an unreasonable
unconscionable or illegal fee or an unreasonable
amount for expenses. The factors to be
consideredunconscionable or illegal in
determining the reasonableness of a fee include
the following:-house expense.
(b) A fee is unconscionable under this Rule if it is so
exorbitant and wholly disproportionate to the
services performed as to shock the conscience;
or if the lawyer, in negotiating or setting the fee,
has engaged in fraudulent conduct or overreaching,
so that the fee charged, under the circumstances,
constitutes or would constitute an improper
appropriation of the client's funds. Unconscionability
of a fee shall be determined on the basis of all the
facts and circumstances existing at the time the
agreement is entered into except where the parties
contemplate that the fee will be affected by later
events.
* Proposed Rule 1.5, Draft 11 (12/14/09). Redline/strikeout showing changes to the ABA Model Rule
Explanation of Changes to the ABA Model Rule
The first sentence of paragraph (a) has been revised to substitute
the recommended standard – unconscionable or illegal – for the
Model Rule’s “reasonable” standard. See Introduction.
The second sentence has been similarly revised and moved to
paragraph (c) as that paragraph’s introductory clause.
The limitation in paragraph (c) on charging an unconscionable or
illegal expense is limited those expenses charged that incurred inhouse
by a lawyer, over which the lawyer has control. The
Commission was concerned that some expenses incurred, for
example from retaining consultants and experts, might be viewed
as unconscionable. However, the cost of such expenses are often
beyond the ability of a lawyer to control.
The Commission recommends including a definition for
“unconscionable” fee, a definition not provided in current rule 4-
200. The language of the definition is taken from California
decisional law, including two Supreme Court cases. See
Herrscher v. State Bar (1934) 4 Cal.2d 399, 402 [49 P.2d 832];
Goldstone v. State Bar (1931) 214 Cal. 490 [6 P.2d 513].
Paragraph (b) is intended to be used in conjunction with the
factors set forth in paragraph (c) as an analytical framework for
determining whether a fee is unconscionable. The last sentence
specifies the time at which the conscionability of a fee is to be
determined.
RRC - 4-200 1-5 - Compare - Rule Comment Explanation - DFT5 1 (02-08-10)KEM-ML-RD-KEM.doc {Note: Green/Italic text in the middle column indicates Model Rule text that has been moved rather than stricken.}
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