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
Will generate more client bar complaints (e.g.
attorney and client cannot agree on amount of
funds to be returned in an advance fee case).
Deprives criminal defendants of constitutional
right to retain lawyer of their choice.
Similar proposals were made by the
Commission in 1991 and by COPRAC in 1997
and were rejected based on negative
responses from CA lawyers.
Non-refundable retainers are justified when
there is a strong likelihood that taking on this
client’s case will preclude the attorney from
accepting another present or future client.
Disciplinary cases that may have been the
reason for the Commission to propose
subparagraph (f) (i.e. Matthew v. State Bar;
49 Cal.3d 784; In the Matter of Scapa, 2
Cal.State Bar Ct. Rptr. 635; In the Matter of
Cooperman, 83 N.Y.2d 465.) do not warrant a
per se ban of non-fraudulent and ethical use
of non-refundable retainers. Those cases
dealt with lawyers who committed fraud and
theft and conduct that would already be
controlled by Rule 4-200(A) prohibiting
unconscionable fees.
There are existing protections against misuse
of non-refundable fees: (1) 4-200 preventing
charging excessive fees and (2) State Bar
Rule 1.16 requiring lawyer to refund unearned
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.
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