Sorted by Commenter - Ethics - State of California

RRC – Rule 1.5 [4-200]
E-mails, etc. – Revised (6/1/2010)
REVISED THE LANGUAGE, THE EXPLICIT REFERENCE IS TO “THE CLIENT’S RIGHT
TO CLAIM A REFUND. . . “ BY ADDING THE TERM “CLAIM,” THE LANGUAGE
SIGNALS THAT THE RULE ITSELF IS NOT DICTATING THE OUTCOME OF A CLIENT’S
EFFORT TO OBTAIN A REFUND, INSTEAD, IT IS LEAVING THE WHOLE ISSUE OPEN.
5. Comment [10]. Whether comment [10] is deleted depends upon how the Commission
resolves item #1, above. THIS COMMENT GOES TO THE LEGAL ISSUE OF
ENTITLEMENT AND OWNERSHIP AND MY SUGGESTED APPROACH IS TO STEER
CLEAR OF THIS.
6. Summary. As Harry and Randy have observed, this journey began with the
Commission's decision to prohibit "non-refundable" fees. As you might recall, the initial
public comment version did not have all the bells and whistles re true retainers and flat
fees. That came after public comment was received from the criminal defense bar and
Raul discovered the proposed Washington Rule 1.5(f). We incorporated those changes but
have not assuaged the concerns of the criminal defense bar. I don't agree with Mark that
"our proposed rule serves a different purpose than Washington by allowing lawyers to
contract with clients to deem a flat fee paid in advance to be the lawyer's property whether
or not the lawyer actually earns the fee." I think that what we wrote addressed the seizure
issue and was not simply intended to provide criminal defense lawyers with a way to make
an advance fee their property. However, I think Randy has made great strides in resolving
the earned upon receipt vs. refund conundrum. We will have to decide, however, whether
we need to address the seizure issue. OKAY.
May 27, 2010 Difuntorum E-mail to KEM, cc RRC:
I want to revise my position on your item #4 below. I now believe that the language at issue
must be deleted as no amount of modifications can salvage it.
Several commenters (including: Cristina Arguedas; LACBA PREC; and Criminal Defense
Lawyers Club of San Diego) make the point that one of the most problematic aspects of the
public comment version of Rule 1.5 is the inclusion of the phrase "if the agreed-upon legal
services have not been completed" as operative language in the mandatory notice that alerts a
client to the client’s right to a refund of a flat fee paid in advance. The commenters essentially
are saying that in the real world of criminal defense a flat fee might appear to a client to be a
windfall legal fee where the lawyer’s flat fee agreement specifies the scope of legal services to
cover arraignment, trial and sentencing but the lawyer is able to end the matter by obtaining a
dismissal at, or even before, arraignment. Because the rule directs the client’s attention to the
issue of completion of services, the mandatory notice misleads the client about the client’s right
to a refund. It misleads because basis of the fee agreement is a commoditization of services
that would otherwise be accounted for on an hourly basis. Granted, in some situations there
may be an issue of an excessive fee that might rise to the level of unconscionability, but even
that situation is not about completion of services, it is about value gauged against the price.
Accordingly, I now believe that any notice to a client regarding a refund for a flat fee should not
refer to completion of services.
* * *
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
RRC - 4-200 [1-5] - E-mails, etc. - REV (06-01-10).doc -149-
Printed: June 2, 2010