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RRC – Rule 1.5 [4-200] E-mails, etc. – Revised (6/1/2010) May 24, 2010 Difuntorum E-mail to Sondheim, cc RRC: Here are links to rules that could be cited as supportive of the Commission’s proposed approach. These are the rules mentioned on page 7 of Minnesota Bar memo in describing jurisdictions that permit advance flat fees to be considered the property of the lawyer. Wisconsin Rule 1.15(4)(m) http://www.wisbar.org/am/template.cfm?template=/cm/contentdisplay.cfm&contentid=65735 D.C. Rule 1.15(d) http://www.dcbar.org/for_lawyers/ethics/legal_ethics/rules_of_professional_conduct/amended_r ules/rule_one/rule01_15.cfm Washington Rule 1.5(f)(2) [This one is already cited on the 1.5 Dashboard.] http://www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=RPC&ruleid=garp c1.05 May 25, 2010 Sondheim E-mail to KEM, cc RRC: Having reflected upon this rule some more, I suggest the following as a fall back position in an effort to find a middle ground between you and me. Raul has suggested that (iii) and (v) be combined. Following through on this suggestion, (iii) could read as follows: "(iii) that, unless the lawyer withdraws before the completion of the services or otherwise fails to perform services contemplated under this Agreement, the fee will be earned in full and no portion of it will be refunded once the agreed-upon legal services have been performed." This wording is more supportable than what we propose for the following reasons, while at the same time alerting the client to the protection that we seek to provide: 1. It is the language currently suggested in the Sample Fee agreement set forth by the State Bar (see my earlier email), slightly amended to fit into what we propose. Thus there is already precedent for this language. 2. A number of the commenters refer to this language by adopting Tarlow's analysis of our proposal (see Ragen's Exhibit 1, at p. 11; Borden, item 13; Moss, item 13). Tarlow states that this fixed fee clause is "widely-used." Thus we are not changing anything that members of the criminal defense bar and others are currently using and there should be no basis for objecting to our using this language. Whatever problems there may be relating to seizure or forfeiture of the lawyer's fee are already inherent in the current "widely-used" language. Why reinvent the wheel? RRC - 4-200 [1-5] - E-mails, etc. - REV (06-01-10).doc -141- Printed: June 2, 2010
May 25, 2010 Martinez E-mail to Sondheim, cc RRC: RRC – Rule 1.5 [4-200] E-mails, etc. – Revised (6/1/2010) Harry, under your proposed version of (iii) the fee isn't earned until the services are performed. This means the fee is still the client's property until the services are performed and can be seized by third parties. Under my version, the fee is earned on receipt "subject to" a refund. Perhaps the fix is to add the words "on receipt" after "earned in full" in you version. May 25, 2010 Melchior E-mail to RRC: I am quite sure that I dissented from our treatment of advance fees but do not have the time to get involved in this argument at the moment. I had a case recently in which the lawyer wrote an engagement letter which stated as clearly as possible that the fee was an availability fee, earned upon engagement. But he then added that he would not charge for some hours of time because of the availability payment, and the OCTC charged that it was NOT an availability fee despite its language. I had to study the field, and I concluded that the Review Department had undermined what I read as the Supreme Court's intent in the Baranowsky case, and that now, in California, there were availability fees in the abstract only -- i.e., if the client paid the lawyer ONLY for availability and NO work would be credited against that payment. Of course, in real life that doesn't happen. I think that anything short of going back to Baranowsky undermines the positions which bankruptcy and criminal defense lawyers MUST take, and that we are engaging in (or in any event supporting) a destructive enterprise if we don't straighten this out. But I don't think that my views have a chance. My apologies for not being able to get more involved; but client work comes first. This debate explains one more reason why our work is not helpful, though we have all certainly tried. May 25, 2010 Martinez E-mail to Sondheim, cc RRC: Harry, I'm fine with it but, I think we need a comment indicating that the rule is not intended to address all circumstances under which the client may be entitled to a refund. After all, this is a matter of contract law and there are other circumstances where the client might be entitled to a refund, such as where the lawyer performs the services negligently-- i.e., a failure of consideration. We are not overruling traditional contract defenses. Either way, I don't think it will appease Tarlow and others who insist there be no rule that prohibits non-refundable fees. May 25, 2010 Sondheim e-mail to Martinez, cc RRC: Then how about this: "(iii) that, the fee is earned in full upon receipt and, unless the lawyer withdraws before the completion of the services or otherwise fails to perform services contemplated under this Agreement, no portion of it will be refunded." While this is a variation of the Sample Fee agreement, I believe it is defensible as based upon the "gold standard" supported by Tarlow and others. RRC - 4-200 [1-5] - E-mails, etc. - REV (06-01-10).doc -142- Printed: June 2, 2010
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unaware 2 of this new rule or that
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arrangement, has always been subjec
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Sorted by Commenter - Ethics - State of California

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