Sorted by Commenter - Ethics - State of California

RRC – Rule 1.5 [4-200]
E-mails, etc. – Revised (6/1/2010)
“nonrefundable”, or similar terms unless the client simultaneously is advised in writing
that the client nevertheless may discharge the lawyer, and that any termination of the
lawyer-client relationship before the completion of the lawyer’s agreed services may
entitle the client to a refund of all or part of the fee based on the value of the lawyer’s
services.
a. The underlined language is b/c the client should be entitled to a refund if the
representation ends prematurely for any reason, and not just b/c the client fires
the lawyer as stated in the Arizona rule.
b. I have remove Arizona’s reference to paragraph (b) b/c we have them as
elements pertinent to the issue of unconscionability. I don’t think that, in context,
we need to add any explanation of “the value of the lawyer’s services.”
2. I do not support Randy’s 5/28/10 redraft of what was (e)(1). The prior version is more
complete b/c it contains the important concept that a true retainer does not to any extent
compensate the lawyer for providing legal services. However, I continue to disagree
with the penultimate sentence of what was (e)(1) b/c I do not believe that the
requirement of a writing is part of current California law. As I will explain later in this
message, I believe we are the firmest ground if we tell everyone, and in particular the
disapproving commenters, that this rule is consistent with their current duties under
California law. This would permit us to say to the criminal defense bar that their
problem is not with us.
3. If the Commission adopts the suggestion in my paragraph 1, paragraph (f)(2) could be
limited to its first sentence. I do not support Randy’s second sentence.
4. Proposed Comment [6A] is ok as far as it goes, but it omits the interference with the
client’s absolute right to terminate a representation.
5. As I suggested earlier, I do not support our attempting to make any change in California
law through this rule with respect to refundability or seizure. It should be obvious that
criminal defense lawyers and lawyers handling civil matters of a criminal nature, and
their clients, face multiple problems, but they are not caused by this rule. Funds that
are the result of alleged (unproven) criminal or other wrongful conduct are subject to
seizure, and courts routinely order lawyers to pay over to receivers funds received by
them from the client. I personally have seen this in enforcement proceedings involving
the SEC and the Commodity Futures Trading Commission. Similar problems exist with
claims of bankruptcy trustees and with creditors outside of bankruptcy. This raises
complex and subtle policy issues that I don’t believe we should attempt to resolve. To
better understand my view, here is how I suggest we respond to the first of the
commenters, Randolph E. Daar:
The Commission believes that proposed paragraphs (e) and (f) accurately state
current California law. See proposed Comment [6A]. The risk to lawyers and
clients that a fee will be seized through actions taken against a client or the
lawyer by law enforcement or regulatory authorities, by a bankruptcy court or
trustee, or by a creditor exists by reason of other bodies of Federal and state law.
It is outside the authority of this Commission to resolve the potential problems
created by other applicable statues, regulations, or appellate opinions. In
addition, the Commission does not agree that our current rules adequately
protects client (or provide adequate notice to lawyers of their legal obligations).
RRC - 4-200 [1-5] - E-mails, etc. - REV (06-01-10).doc -152-
Printed: June 2, 2010