Sorted by Commenter - Ethics - State of California

RRC – Rule 1.5 [4-200]
E-mails, etc. – Revised (6/1/2010)
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
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.
May 28, 2010 Difuntorum E-mail to Sondheim, cc RRC:
In follow-up to our telephone conversation yesterday afternoon, I attach a revised draft of my
suggested revisions to proposed Rule 1.5. Changes to my previous draft are marked with
yellow highlighting. (Note that the Word file is legal size and the PDF file is letter size.)
This latest draft differs substantively from my prior draft in two ways. First, this version does not
prohibit an agreement for a nonrefundable fee. Instead, it prohibits a fee based on a fee
agreement that states or implies that fees paid are nonrefundable under any circumstance.
Second, this version states that a flat fee agreement may state or imply that it is the intent of the
parties that the fees paid pursuant to the fee agreement are earned when paid. While this tilts
somewhat back toward “magic words,” perhaps you will find this approach to be a better
balancing of the interests of clients and criminal defense attorneys.
Attached:
RRC - 4-200 [1-5] - Rule - DFT12.2 (05-28-10)RD - Cf. to DFT11 (12-14-09).doc
RRC - 4-200 [1-5] - Rule - DFT12.2 (05-28-10)RD - Cf. to DFT11 (12-14-09).pdf
May 29, 2010 Sondheim E-mail to Difuntorum, cc RRC:
Thanks for trying to find a middle ground which is acceptable to both of us. I can live with what
you propose, but suggest that (f)(2)(ii) be slightly changed to read: "that the fee agreement does
not alter the client's right to claim that the client is entitled to a refund of some or all of the fee
paid."
May 31, 2010 Sondheim E-mail to RRC:
1. I encourage you to use Randy's latest draft of 1.5, as slightly modified by me. This draft
takes care of "non-refundable," provides the client with notice of the right to terminate
representation and the possibility of a refund, without all the bells and whistles of our current
draft, many of which caused criticism by the criminal defense bar and bar associations. At the
same time it permits immediate retention of the fee which can be put in the lawyer's personal
account. We will obviously need to change and add some appropriate comments.
2. In light of one of the commenter's comments (Martinez, p. 48) which is not directly answered
in the RRC Response, I would include a RRC comment making it clear that the fee can be
placed in the lawyer's personal account.
3. Our current RRC Response to the commenters implies we have made changes "to address
the commenter's concerns." Obviously the commenters do not think we have addressed their
concerns. If we continue to retain this litany and do not adopt item 1, supra, I think it should be
RRC - 4-200 [1-5] - E-mails, etc. - REV (06-01-10).doc -150-
Printed: June 2, 2010