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
The rule is uncertain regarding the
determination of the unconscionability of
expenses. The proposed definition in
paragraph (b) and the factors listed in
paragraph (c) of proposed Rule 1.5, by their
terms, apply only to the determination of
whether a fee is unconscionable. What
factors or considerations does the
Commission intend for lawyers, State Bar
prosecutors, the State Bar Court and the
Supreme Court to apply in determining
whether an expense is unconscionable?
Concerned about the Commission’s proposal
in paragraph (e) of proposed Rule 1.5 to
single out two types of contingent fees
(Family Law and Criminal Law) as being
improper. The concern is by singling out
these two types of contingent fees there is an
implication that all other types of contingent
fees are appropriate, a result the Commission
may not have intended.
The impact of placing the distinction between
non-refundable fees and true retainers in Rule
1.5 is that it will make members subject to
discipline for charging or collecting a nonrefundable
retainer. Currently, the collection
The Commission revised paragraph (c) to read:
“Among the factors to be considered, where
appropriate, in determining the conscionability of a
fee or in-house expense are the following.”
In addition, the Commission added “in-house” to
modify “expenses” in paragraph (a).
The Commission did not make the requested
revision, in part, because the Model Rule
counterpart specifically addresses Family Law and
Criminal Law. (See also proposed Rule 1.5 Model
Rule Comparison Chart explanation of paragraph
(d) of the rule.)
The Commission did not make the requested
revision, in part, because the Commission believes
that charging a non-refundable fee is inimical to
California’s strong policy of client protection. (See
also proposed Rule 1.5 Model Rule Comparison
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