Sorted by Commenter - Ethics - State of California

RRC – Rule 1.5 [4-200]
E-mails, etc. – Revised (6/1/2010)
discharge the lawyer at any time and in that event may be entitled to a refund of all or part
of the fee based upon the value of the representation pursuant to paragraph (a).
I think an important point in the Arizona language is the client's right to discharge the
lawyer. One of the key rationales in New York's Cooperman opinion that rejected the
concept of a non-refundable fee was that it interfered with the client's absolute right to
discharge the lawyer (sure, the client can discharge the lawyer, but if the client has already
paid a multi-K non-refundable fee, can the client afford to do so?) Accordingly, I also think
that the "unless the lawyer withdraws" language in the form fee agreement and cited to by
the criminal defense bar is wrong. The issue is not whether the lawyer "withdraws," the
issue is the client's right to discharge the lawyer. The client should be entitled to a refund
whether the lawyer withdraws or the client fires the lawyer before the lawyer has completed
the agreed upon services.
I AGREE WITH THE POLICY THAT ALL FEES ARE POTENTIALLY REFUNDABLE
REGARDLESS OF WHETHER THE LAWYER WITHDRAWS BEFORE SERVICES ARE
COMPLETED. HOWEVER, I DO NOT FAVOR ARIZONA’S APPROACH BECAUSE IT IS
A MAGIC WORDS APPROACH THAT PERMITS LAWYERS TO USE THE INHERENTLY
MISLEADING LABEL OF “NONREFUNDABLE.”
c. As I mentioned in an earlier e-mail, we seem to be dealing with a condition subsequent,
an event that might occur to discharge a previously-incurred obligation (e.g., no work done
discharges the client's obligation to pay). We seem to contemplate this concept in the
second sentence of our paragraph (b), which provides:
Unconscionability of a fee shall be determined on the basis of all the facts and
circumstances existing at the time the agreement is entered into except where the parties
contemplate that the fee will be affected by later events.
Perhaps we can highlight that sentence by referring back to it in a comment. A NEW
COMMENT ALONG THESE LINES MIGHT BE HELPFUL.
2. Paragraph (e). I would not change the language as Randy suggests (substituting
"enter into" for "make") unless we make the same change in paragraph (a). I MADE THIS
CHANGE IN ORDER TO USE THE EXACT SAME LANGUAGE OF PARA. (d), AS BOTH
(d) AND (e) WOULD BE PROVISIONS THAT BANS ON CERTAIN FEES. IF “MAKE” IS
THE PREFERRED TERM, THEN MAYBE PARA. (d) SHOULD BE MODIFIED SO THE
PROVISIONS ARE CONSISTENT.
3. Paragraph (f)(1) [Formerly (e)(1)]. I'm not sure why Randy changed proposed (e)(1).
Was it only to shorten or simplify it? I'm fine with that but I thought we had adopted the
definition in 1.5(e)(1) as a more complete explanation of a true retainer than is currently
found in the California rules. Note that we removed the definitions of true retainer from
Rules 1.15 and 1.16.
I MADE THIS CHANGE BECAUSE I BELIEVE TRUE RETAINERS ARE NOT AS
PROBLEMATIC AS FLAT FEES. I WANTED TO RETAIN AS MUCH AS POSSIBLE OF
THE STATUS QUO ON TRUE RETAINERS.
4. Paragraph (f)(2). I'm not sure I agree with the deletion of "if the agreed-upon legal
services have not been completed" at the end of (f)(2). IF THIS PHRASE IS RETAINED
THEN IT SHOULD BE MODIFIED TO BE NON EXCLUSIVE SINCE IT DESCRIBES ONLY
ONE EXAMPLE OF A FAILURE OF CONSIDERATION. PERHAPS SOMETHING ALONG
THE LINES OF THE FOLLOWING: “IF THE AGREED-UPON LEGAL SERVICES HAVE
NOT BEEN COMPLETED, OR FOR SOME OTHER VALID REASON.” AS I HAVE
RRC - 4-200 [1-5] - E-mails, etc. - REV (06-01-10).doc -148-
Printed: June 2, 2010