Sorted by Commenter - Ethics - State of California

Availability Fees, Advance Fees, and Flat Fees Paid
in Advance
First, availability fees are clearly earned by the lawyer
upon receipt, not subject to trust account deposit, and
nonrefundable. Baranowski v. State Bar (1979) 24 Cal.
3d 153, 163 et seq., plainly so held. However, since that
decision the State Bar Court (not the Supreme Court,
whose Baranowski case stands unassailed and has been
cited elsewhere as authoritative, see, eg., In re McDonald
Bros. Const. Inc. (Bk. N.D. Ill. 1990) 114 B.R. 989, 997-
1002) has whittled away at its holding in Matter of Fonte
(1994) 2 Cal. St. Bar Rptr. 752, and In re Brockway
(2006) 4 Cal. St. Bar Rptr. 944. Thus, in practice, the
protection a lawyer has on receipt of an availability fee
under Baranowski has been eroded and scarcely exists.
Secondly, in real life there is no point or almost no point
in an availability fee as we have narrowly defined that
term, i.e., a fee purely for having the lawyer available –
presumably, by refusing other work which may or may
not come along – but where the lawyer is also required
to charge the client separately for the work when the
lawyer performs that work. Under what circumstances
would a lawyer institute this arrangement, and what
would be the required non-unconscionable level at which
such a second fee could be established? Or how would
one measure the value of time (i.e., of availability),
except by the work to be done and separately billed for?
NEW - RRC - 4-200 1-5 -Minority Dissent-2COL-KEM-RD.doc
Proposed Rule 1.5 Fees for Legal Services
Rules Revision Commission — Minority Dissent
Yet, as criminal defense lawyers have made amply clear
to the Commission. and as applies equally to lawyers
representing bankrupts and certain other debtors, and
perhaps other relationships which have not been brought
forward to the Commission’s attention, such lawyers
need to have a fully earned fee upon engagement,
because to the extent that the fee has not been fully
earned (i.e., that it may be refunded), it does not wholly
belong to the lawyer; and law enforcement or similar
adverse parties may seize the funds from the lawyer,
leaving the lawyer unpaid and, unless a court orders the
lawyer to work without fee, leaving the client
unrepresented.
Thus, one defect in the proposed Rule is that in the
praiseworthy effort to protect clients against certain
potential improprieties – the lawyer’s being paid and then
not performing the work, or the client changing her mind
and not being able to recover an advance fee so that she
can pay a successor – we are creating another, serious
trap for lawyer and client alike.
The same fault underlies the proposed Rule that provides
that when a lawyer accepts an availability fee, there must
also be a separate charge for the work being done,
beyond the availability fee: if that is not the case, it is not
a true availability fee. The availability fee may thus never
be used to pay the lawyer for actual work on the client’s
matter.
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