Sorted by Commenter - Ethics - State of California

ABA Model Rule
Rule 1.5 Fees
Commission’s Proposed Rule *
Rule 1.5 Fees for Legal Services
(e) A lawyer shall not make an agreement for,
charge, or collect a non-refundable fee, except:
(1) a lawyer may charge a true retainer, which
is a fee that a client pays to a lawyer to
ensure the lawyer's availability to the client
during a specified period or on a specified
matter, in addition to and apart from any
compensation for legal services performed.
A true retainer must be agreed to in a writing
signed by the client. Unless otherwise
agreed, a true retainer is the lawyer's
property on receipt.
(2) a lawyer may charge a flat fee for specified
legal services, which constitutes complete
payment for those services and may be paid
in whole or in part in advance of the lawyer
providing the services. If agreed to in
advance in a writing signed by the client, a
flat fee is the lawyer's property on receipt.
The written fee agreement shall, in a
manner that can easily be understood by
the client, include the following: (i) the
Explanation of Changes to the ABA Model Rule
Paragraph (e) has no counterpart in the Model Rule. The
Commission recommends its adoption because charging a nonrefundable
fee is inimical to California’s strong policy of client
protection. The prohibition stated in the introductory clause of
paragraph (e) is subject to two traditional exceptions, as discussed
below. Much of the language used in this paragraph is taken from
Washington Rule 1.5(f).
Subparagraph (1) provides one exception to the non-refundable
fee prohibition in paragraph (e): a true retainer, which carries
forward an exception traditionally recognized in the profession and
already found in current rule 3-700(D)(2). Much of the language
used in this subparagraph is taken from Washington Rule 1.5(f).
Subparagraph (2) provides the second exception to the nonrefundable
fee prohibition in paragraph (e): a flat fee that satisfies
the requirements set forth in the subparagraph. Subparagraph (1)
was added following public comment to address concerns raised
by members of the California criminal defense bar that prohibiting
such earned-on-receipt flat fees and requiring all such fees paid to
criminal defense lawyers to be advance fees, could result in the
government impounding the fee advance, thereby preventing a
criminal defendant from retaining the defendant’s counsel of
choice. The Commission believes the conditions marked by
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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