Sorted by Commenter - Ethics - State of California

This concept comes out of early case law; and indeed, in
the early days of California jurisprudence, there may
have been situations where a client came to a lawyer to
say that the client would pay the lawyer just to be able to
call on him if needed. However, this was before the rise
of the billable hour; and there is no authority and to my
knowledge no anecdotal experience which indicates that
more recent history (say, since WW II) actually shows
such situations, where an availability fee was followed by
hourly or other pro rata charges for the work when done.
So, the Commission is either carrying forward into the
21 st century a formulation which has had no meaning
since the 19 th , or ignoring the true meaning of an
availability fee.
The motive behind this approach is client protection – as
is true with the post-Baranowski cases cited above.
However, lawyers in fact use the availability fee, or a
NEW - RRC - 4-200 1-5 -Minority Dissent-2COL-KEM-RD.doc
“fully earned at the time of payment” version of a flat fee,
for legitimate and client-beneficial purposes. The
Commission’s formulation undercuts both points of this
established practice, which is allowed under the current
California Rule. In the interest of one aspect of client
protection, the proposed Rule deprives both client and
lawyer of an important and necessary means to allow
clients to retain lawyers, and lawyers to accept certain
engagements, in socially valuable situations.
There are other ways to solve this problem. One, but not
necessarily the only one, is not to limit or forbid “true
retainer” fees or fully earned advance fees which also
include payment for work to be done, but rather to
require that lawyers may not willfully (a) fail to do the
work whose value is included in the flat fee or availability
retainer, or (b) refuse to refund a prorated portion if the
contemplated work is not done.
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