As soon as the client affirms it and asks for a refund, the Office of Chief Trial Counsel (“OCTC”), the investigative branch of the California State Bar, will pass your conservation agreement with a fine tooth. The Supreme Court has issued an order on the long-awaited, non-refundable conservation case pending on the Cooper/Attorney Grievance Commission. In this case, the client has appointed a lawyer to represent them in a divorce action. The lawyer calculated a non-refundable storage bank of $US 4,000 and her fee agreement with the client explained that the $4,000 was a “minimum fee”. In exchange for the minimum tax, the lawyer would work the client`s case according to her regular schedules at no additional cost. Once the lawyer`s work has exceeded the minimum fee, the client would be required to pay for those overtime hours. The pricing agreement also states that “the customer understands that no part of the MINIMUM FEE mentioned above is in any way to the customer.” When considering whether a true archivist resists an analysis of scruples, it should be considered that an agreement can only be annulled on the grounds of unacceptable, on the basis of the facts that existed at the time of the creation of the contract [Section 1670.5 of the Civil Code; Rule 4-200 (B)] “The decisive moment in determining whether a contract is unacceptable is when it is concluded by both parties, not whether it is unacceptable in light of the events that followed.” [American Software Inc. v. Ali (1996) 46 Cal.App.4th 1386, 1391]. Once the storage costs are exhausted, the lawyer can charge the client in different ways.
The first option is to enter into a contingency fee agreement with the client. An unforeseen pricing agreement provides that the lawyer is not paid unless he wins the case. When the case ends in favour of the client, the lawyer takes a percentage of the amount awarded by the court. This language is very clever on his face, but unworkable. Although it was stated in the language of the agreement that the advance was paid to ensure the lawyer`s availability and was not refundable, the advance was clearly to apply to the first ten hours of work. Therefore, the advance was clearly not paid solely to ensure the availability of counsel. The court found that the payment of 2,750 $US was not a real retractor and that counsel was required to repay any money that had not been earned. For the explanation, if authentic storages are the only ones where fees are earned after receipt, then your package contract falls into “immediately refundable” part of Rule 3-700 (D) (2), and you must return all fees that have not been earned.
(There is much more to discuss here with regard to advance fees, and what to do with controversial money, etc., but it will be for another topic.) Therefore, if a client enters into a real conservation agreement with a well-known criminal defence lawyer because the client is concerned that he or she will be prosecuted and wants to ensure the availability of defence counsel, the client could not have cancelled the contract for unacceptable reasons simply because the charge never took place. On the other hand, if the same client entered into a genuine conservation agreement with a lawyer who had no experience or reputation in the handling of criminal cases, the retainer could be ruthless, depending on the amount paid and the client`s refinement and bargaining power, whether the charge is written or not.