Sorted by Commenter - Ethics - State of California

No. Commenter Position 1
Comment
on Behalf
of Group?
Rule 1.5 Fees for Legal Services.
[Sorted by Commenter]
Rule
Paragraph
Comment RRC Response
in their retainer agreements. We do not
believe that lawyers who mistakenly employ
the wrong term for an otherwise-proper fee
agreement should be disciplined. In addition,
ABA Model Rule 1.5 does not impose
discipline for use of the term “non-refundable.”
Adoption of the Proposed Rule 1.5(e) would
mean that a lawyer following public policy and
using a written fee agreement, but selecting
the term “non-refundable,” would be subject to
discipline, whereas a lawyer working without a
written fee agreement would not be
disciplined. That result would provide a
disincentive for using written fee agreements
and would be contrary to the expressed policy
of the State of California.
The distinction between “non-refundable” and
“true retainer” is subtle. Ethics experts can
and often do disagree. Many criminal
defense lawyers (and a host of other lawyers)
do not know the nuanced issues that can be
triggered by use of these terms, and in reality,
many lawyers use the terms interchangeably.
Lawyers are not and should not be subject to
professional discipline for inadvertence or
negligence.
Use of a non-refundable fee is not
(2) a lawyer may charge a flat fee for specified
legal services, which constitutes complete
payment for those services and may be paid
in whole or in part in advance of the lawyer
providing the services. If agreed to in
advance in a writing signed by the client, a
flat fee is the lawyer’s property on receipt.
The written fee agreement shall, in a
manner that can easily be understood by
the client, include the following: (i) the scope
of the services to be provided; (ii) the total
amount of the fee and the terms of
payment; (iii) that the fee is the lawyer’s
property immediately on receipt; (iv) that the
fee agreement does not alter the client’s
right to terminate the client-lawyer
relationship; and (v) that the client may be
entitled to a refund of a portion of the fee if
the agreed-upon legal services have not
been completed.
The Commission did not make the requested
revision, in part, because the Commission believes
that charging a non-refundable fee is inimical to
California’s strong policy of client protection. (See
also proposed Rule 1.5 Model Rule Comparison
Chart explanation of paragraph (e) of the rule.)
RRC - 4-200 1-5 - Public Comment Chart - By Commenter - XDFT1.1 (5-26-10) doc.doc Page 3 of 28 Printed: 5/26/2010
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