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
RRC - 4-200 1-5 - Public Comment Chart - By Commenter - DFT3.1 (10-21-09)RD-KEM-AT-RD.doc
Comment RRC Response
acknowledge hybrid retainers and provide that
the rule is not intended to prohibit contracting
for, charging, or collecting a flat fee.
1.5(a) fully protects against the risk of an
unconscionable “non-refundable” fee without
the unanticipated consequences and
ambiguities created by 1.5(f).
Flat fee arrangements represent a legitimate,
bargained-for exchange, between lawyer and
client.
Prohibited non-refundable fees, as in 1.5(f),
does not address the true concern, which is
ensuring that unearned fees are returned to a
client and that any non-refundable portion of a
fee is not, under all the circumstances,
unconscionable.
ABA Model Rules do not prohibit flat fees or
non-refundable fees.
28 Martinez, Martin D Attorneys have always engaged in the use of
non-refundable retainers.
Ambiguity about when a fee is “earned.”
Rule ties the hands of the criminal defense
bar by requiring the lawyer to place funds in
trust that would otherwise be available to the
follows:
(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 scope
of the services to be provided; (ii) the total
amount of the fee and the terms of
payment; (iii) that the fee is the lawyer’s
property immediately on receipt; (iv) that the
fee agreement does not alter the client’s
right to terminate the client-lawyer
relationship; and (v) that the client may be
entitled to a refund of a portion of the fee if
the agreed-upon legal services have not
been completed.
To address the commenter’s concerns but still
provide for enhanced client protection, the
Commission revised the approach to advance fee
payments in paragraph (e) of the Rule to provide as
follows:
(2) a lawyer may charge a flat fee for specified
legal services, which constitutes complete
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