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
disservice to the public, and create
unnecessary litigation. Many times in my
thirty-eight years of practice I have offered
clients the option of a non-refundable
retainer/flat fee for legal services or hourly
billing. Many times the clients have selected
the non-refundable retainer. The reason often
voiced for choosing this option is that the
amount of attorney fees is capped by the
amount of the non-refundable retainer. When
an hourly billing is selected there is no limit on
what the attorney’s fees might be. Attached
hereto is an analysis of the Proposed Rule. I
agree with the analysis and I incorporate it by
reference. In my years of practice I have
never had a problem with a client when a
client chose a non-refundable retainer as an
option.
6 Martin James Martinez M No 1.5(e) The Proposed Rule is cause for concern in as
much as it will have detrimental effects on
criminal defense attorneys.
The best solution would be to continue to
allow criminal retainers to be placed in the
general account as a classic true nonrefundable
retainer. If the rules committee is
still determined to eliminate the use of nonrefundable
retainers, then a workable
compromise would be an amendment to the
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.
To address the commenter’s concerns but still
provide for enhanced client protection, the
Commission revised the approach to advance fee
payments in paragraph (e) of the Rule to provide as
follows:
(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
RRC - 4-200 1-5 - Public Comment Chart - By Commenter - XDFT1.1 (5-26-10) doc.doc Page 6 of 28 Printed: 5/26/2010
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