At least in theory, marking a prepaid tax as non-refundable should not influence whether the client can be reimbursed if the lawyer does not act properly. E.R. 1.7 and Comment 7 expressly require a lawyer to declare in the written fee agreement, which is now required in any obligation, that even if the retainer is called “non-refundable” or otherwise, the client may continue to discharge the lawyer and be entitled to a full or partial refund on the basis of the “value” of the work actually performed on that date.2 This statement is , of course only a summary of The operation of In re Swartz.30 These observations were hardly new or surprising, but they dealt with only the second of the two potential issues raised by non-refundable tariff agreements, that is, the possibility that they would result in excessive royalties. What is surprising is that the Court has not fully debated the first issue – the burden that these agreements place on a client`s right to be dismissed at any time for any reason. Rule 3-700 (D) (2) of the Rules of Professional Conduct (“Rules”) provides that counsel and client, unless they have entered into a contract with a “true retainer” (also known as a “classic retainer”), must reimburse a portion of the advance costs that the lawyer has not yet earned. This raises the question of how to distinguish a “true retainer” from other forms of down payment. Rule 3-700 (D) (2) itself suggests that a “real guard” is paid “exclusively to ensure the member`s availability.” (Added highlight.) This definition of “true retainer” was adopted by the California Supreme Court at Baranowski v. State Bar (1979) 24 Cal.3d 153. Counsel X`s fee agreement is unethical, since his fee agreement provided for a “non-recoverable custodian” for the payment of legal services prior to trial, which cannot be done by a non-recoverable babysitter after PEC 611 notice. In addition, Lawyer X levies another “non-refundable” judicial fee.
Similarly, a flat fee is reimbursed, even if the lawyer calls them “non-refundable.” A flat fee is a fixed fee for legal services, but if legal services are not essentially completed or earned, then a portion of the flat fee can be refunded. As a result, the lump sum fees until they are paid into a lawyer`s receiver account, and they are not “earned” after receipt.