Sorted by Commenter - Ethics - State of California

RRC – Rule 1.5 [4-200]
E-mails, etc. – Revised (6/1/2010)
b. If we make any change, it should not be to move subparagraph (v) into a comment.
Rather, we might consider a new comment that explains what we mean when we state
"the agreed-upon legal services have not been completed." That seems to be the real
concern, i.e., the fear that a client might come after them after they've provided
substantial services that warrant full payment, but may not have included ALL of the
services that possibly might have been rendered when the parties signed the fee
agreement. The comment could state something along the following lines:
"Subparagraph (e)(v) requires that a lawyer retained on a flat fee basis must
include in the fee agreement a statement 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.' Subparagraph (e)(v) does not require a refund if all of the possible
services that the lawyer might have been provided under the agreement were not
necessary. For example, if the lawyer had agreed to represent the client for a flat
fee to the conclusion of a trial on the matter, but was able to negotiate a
settlement or plea agreement after expending substantial effort on the client's
behalf, the client would not be entitled to a refund. On the other hand, if the
lawyer and client entered the same agreement but the matter was terminated
before the lawyer had expended any effort, or after little effort by the lawyer, then
it is likely that the client would be entitled to a refund of at least part of the fee.
See paragraphs (b) and (c) of this Rule concerning unconscionable fees."
That's done on the fly. It can be improved substantially but the general idea is to assuage the
real concerns of the criminal defense bar.
May 23, 2010 Kehr E-mail to KEM, cc RRC:
I’ve been looking around for an explanation for the reaction described in your paragraph 2, and I
think the attached provides it. The bankruptcy judge and lawyers present didn’t recognize the
difference between a rule applicable only in bankruptcy and the disciplinary rule applicable in all
situations.
Attached:
RRC - [1-5] - Guidelines re Retainers - Trustee - C.D.Cal.pdf
May 23, 2010 KEM E-mail to Kehr, cc RRC:
Your attachment is helpful and is what I understood to be the case, i.e., that the BK lawyers are
subject to BK court rules on retainers (and that the BK court -- or at least the U.S. Trustee that
issued the attachment -- apparently doesn't recognize a "true retainer" or is misusing the term;
what is described is an advance fee). At any rate, regardless of what the California Rule
provides, it appears that BK lawyers still must conform their conduct to the BK court rule if they
want to continue to practice before the BK court. Therefore, we shouldn't expect that they will
complain about 1.5(e); they already are limited in the property interests they can claim in
advances that their BK clients might make to them. Do you agree?
My principal point is that the BK lawyers have not complained so we probably should not group
them with the criminal defense bar as lawyers who might be adversely affected by proposed
Rule 1.5(e).
RRC - 4-200 [1-5] - E-mails, etc. - REV (06-01-10).doc -138-
Printed: June 2, 2010