Sorted by Commenter - Ethics - State of California

RRC – Rule 1.5 [4-200]
E-mails, etc. – Revised (6/1/2010)
changed to read: "In an effort to somewhat alleviate the commenter's concerns, the Commission
redrafted subparagraph (2).
May 31, 2010 Martinez E-mail to RRC:
It seems Randy's current version takes us full circle to where we started. The confusion in the
rule that was mentioned by LACBA is still present: that is, the rule says inconsistently that the
lawyer's fee is earned when paid, yet the client can still claim a refund. The rule fails to explain
when the client may claim a refund. And by removing the language--"if the agreed-upon legal
services have not been completed"--it becomes even more unclear. I think we are being a bit
schizophrenic about this rule and are having trouble finding a middle ground.
Also, the suggestion that the agreement can "imply" that that the fee is earned invites lawyers to
include ambiguous/stealth provision in the agreement. There is no room in contract law or rule
drafting to "imply" things. It's either there--i.e., express-- or it's not.
May 31, 2010 Kehr E-mail to RRC:
Before being swallowed up in the non-refundable fee issue that is the subject of all the public
comments, I have a few other drafting suggestions that I want to get out of the way.
First, at the fifth line of paragraph (b), we have “constitutes or would constitute”. While the
double statement might be logically complete, I think it adds nothing to the practical meaning of
the paragraph and makes more complex what in any event is quite a long sentence. I would
remove “or would constitute” so that the flow of the sentence is: “A fee is unconscionable ... if it
... shock[s] the conscience ... or constitutes ....” This has the added benefit of pairing the two
verbs as “shock the conscience” in the second line of the paragraph is not stated in the
subjunctive.
Second, beginning at the end of the fifth line, we have “an improper appropriation”. Why not
simplify this by saying: “a misappropriation”? This would be slightly shorter and punchier and
has the same meaning.
Third, paragraph (d) begins: “A lawyer shall not make an arrangement for ....” The
corresponding phrase in paragraph (e) is: “A lawyer shall not make an agreement for ....” I see
no reason to not use the same language in both places. MR 1.5(d) uses “arrangement”, and
that seems to me to work. We ought to use the same word in our paragraph (e), which also
would be consistent with what we already have in paragraph (a). I would do the same by using
“make” in paragraphs (d) and (e), as Randy suggested in his 5/28/10 redraft. This is briefer
than the MR’s “enter into” and has the added benefit of tracking the language of paragraph (a).
Turning now to the non-refundable fee issue ---
1. In Randy’s 5/28/10 redraft, I like the idea of focusing on what the fee agreement
communicates to the client b/c the key question is whether the lawyer misleads the
client. However, I don’t think that Randy’s suggestion in what he has as paragraph (e)
hits the spot. I prefer the Arizona approach recommended by Kevin in his 5/26/10
email. My suggestion is as follows (with my substantive changes to the Arizona
language underlined): “Except as stated in paragraph (f), a lawyer shall not make an
agreement for, charge, or collect a fee denominated as “earned on receipt”,
RRC - 4-200 [1-5] - E-mails, etc. - REV (06-01-10).doc -151-
Printed: June 2, 2010