Sorted by Commenter - Ethics - State of California

No. Commenter Position 1
Comment
on Behalf
of Group?
Rule 1.5 Fees for Legal Services.
[Sorted by Commenter]
Rule
Paragraph
Comment RRC Response
California Bar endorsed the continued use of
“fixed fees,” “flat fees,” and “non-refundable
retainers” so long as the written fee
agreement explicitly spelled out the
arrangement and that the fee was “earned
when paid.” Their decision was widely
publicized. As far as I can determine, the
Commission has never provided written
analysis of this persuasive authority, advised
the current Board of Governors of its
existence and certainly has not demonstrated
why it should be ignored by those who now sit
on the Board of Governors.
Prohibiting nonrefundable retainers, see
1.5(e)(2), will make these fee payments the
property of the client until the work is
performed. This is so regardless of the
inaccurate representation set out in Rule
1.5(e)(2) requiring a written agreement by the
lawyer and client asserting that the “flat fee is
the lawyer’s property on receipt.” The critical
issue in fee forfeiture and restraining order
situations is not what the fee is called but who
owns the funds.
Abolishing the nonrefundable retainer, that for
years has protected clients and lawyers from
fee restraints, fee forfeiture and jeopardy
assessments, will expose lawyers performing
RRC - 4-200 1-5 - Public Comment Chart - By Commenter - XDFT1.1 (5-26-10) doc.doc Page 18 of 28 Printed: 5/26/2010
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