Sorted by Commenter - Ethics - State of California

RRC – Rule 1.5 [4-200]
E-mails, etc. – Revised (6/1/2010)
tax matters and Mr. Perlis, a former Assistant Director of Enforcement at the SEC.) Of course, I
recognize that this risk exists at the present time, but we are increasing the risk for all lawyers
by using the specific proposed language in v in our effort to alert clients who may be entitled to
a refund from those lawyers (and I like to believe there are not too many) who do not perform
what they are obligated to do. The language provides the IRS, SEC, etc. with one more arrow
in their quiver.
5. Furthermore, the language also may create thoughts by any client regarding how to get back
part of the flat fee, i.e. a claim that not all the "agreed-upon legal services have ... been
completed." A client hires a lawyer in the belief that the lawyer will provide legal services to
resolve a matter in the best manner possible and is willing to pay a flat fee to achieve that end;
but at the same time we are telling the client the lawyer may not provide you with all the legal
services you expected. Talking about "legal services that have not been completed" raises
issues at the inception of the relationship which need not be raised. The fee agreement should
spell out what services the client can expect.
6. Your proposed comment, which I realize "was done on the fly," suggests that there should be
a weighing between "substantial effort" and "little effort." Yet the lawyer's entitlement to the flat
fee is not dependent upon the amount of effort it has taken to resolve the matter, but whether
the lawyer has done whatever is required (whether substantial or little) to either resolve the
matter or to competently represent the client up to the point agreed upon.
Although this e-mail may appear to be a comprehensive presentation of my views, it too was
done "on the fly" as I am presently swamped with other matters, including looking after my
grandchildren whose parents are out of town for a few days. So I may have other thoughts
when I get a chance to review this e-mail and further reflect upon the matter.
May 23, 2010 Martinez E-mail to Sondheim, cc RRC:
The refund aspect is a large part of the Rule. Removing it would not make the rule neutral
because the Rule already tips the scales in favor of the lawyer by stating that the flat fee is the
lawyer's property. If the lawyer fails to perform the called upon services the client should get a
refund. We need to spell it out. Failure of consideration should be available to the client under
appropriate circumstances which can be addressed in a comment. "Failure of consideration is
the failure to execute a promise, the performance of which has been exchanged for
performance by the other party. Among other situations, the failure may arise from the wilful
breach of the promise." Bliss v. California Cooperative Producers (1947)30 Cal.2d 240, 248.
As for the uncertainty pointed out by Mr. Sevilla and LACBA, I suggest that the concept in (v) be
merged into (iii) so that (iii) reads:
(iii) that the fee is the lawyer's property immediately on receipt, subject to the right of the
client to a refund of all or a portion of the fee if the agreed-upon legal services are not
performed.
The remaining concerns can be addressed in a comment, as Kevin suggests. But leaving the
refund aspect out of the rule would too strongly suggest that the fee is the lawyer's property and
that the client has no recourse.
RRC - 4-200 [1-5] - E-mails, etc. - REV (06-01-10).doc -140-
Printed: June 2, 2010