Sorted by Commenter - Ethics - State of California

Mr. Howard Miller
April 8 , 2010
Page 3
5. The language of
provisions of a fee engagement and get between the lawyer and his client. In the above scenario , both the lawyer
and client would take the
contemplated to be within the
, however, could take the position that an
interpretation of the engagement letter, in the context ofthis proposed rule, provides a refund remedy to the client
which is subject to seizure. Unfortunately, by the time the extent of this property interest is litigated , the jeopardy
assessment case has moved forward and the client is out of business for lack of
interests of the client, the proposed rule has the opposite effect.
or interest in property. It appears that the proposed
The core issue under the proposed rule is one of property
rule is confusing and inherently contradictory. If the flat fee is the lawyer s property upon receipt, then there should
not be a basis for seizure. However, ifthe client has a right to a refund offees attributable to services not completed
then the client has a property interest that can be seized by a taxing
My comments have addressed the proposed rule change within a very
focused on a particular civil tax issue. There are many other factual situations , including those within the criminal
law context, that raise issues of legal exposure for both the attorney and client which have not
this letter. Hopefully, the Special Committee considering this rule change will reconsider
, in my proposed rule. Existing legal remedies and professional restraints on attorneys are opinion, sufficient to
protect clients. The obfuscation of property rights pertaining to flat
productive to the interests
of clients.
cc: Mr. Rex Heinke
Mr. Michael D. Marcus
Mr. Patrick M . Kelly
Mr. James H, Aguirre
Very
Z/2d
truly yours
fenneth G. Gordon
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