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Roger
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There were references to PA. Eth. Op. 95-100 and Pa. Eth. Op.

Customer Question

There were references to PA. Eth. Op. 95-100 and Pa. Eth. Op. 93-201 in regards XXXXX XXXXX rules of non-refundable retainer fees. I have gone to our local county law library and have done an extensive search online to view these opinions but have had no luck in finding them. Our local Bar association has an ethics search but it is for members only. Can you supply these two opinions?
Submitted: 1 year ago.
Category: Legal
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX I'm a litigation attorney. Thanks for your question. The opinions are only accessible by members of the Pennsylvania Bar: http://www.pabar.org/login.asp?topage=/public/legalproflinks/legalinfo.asp?However, I can access the rules that reference these opinions.
Expert:  Roger replied 1 year ago.
1.5:400 Reasonableness of a Fee Agreement
• Primary Pennsylvania References: PA Rule 1.5(a)
• Background References: ABA Model Rule 1.5(a), Other Jurisdictions
• Commentary: ABA/BNA § 41:301, ALI-LGL § 46, Wolfram § 9.3.1

1.5:410 Excessive Fees
PA-R 1.5(a) proscribes "clearly excessive" fees and provides eight factors to be used when determining whether a fee is unethically high. See PA-R 1.5(a)(1)-(8); see also Feingold v. Pucello (Super. Ct. 1995) (finding proposed contingency fee of 50% of recovery "breathtakingly high"). The court may exercise its equitable power to reduce the amount of fees charged when its determines that the fees are "blatantly unreasonable." PNC Bank v. Bolus (Super. Ct. 1995) (reducing fee charge of over $70,000 for filing one document with prothonotary to confess judgment on note).

1.5:420 "Retainer Fees:" Advance Payment, Engagement Fee, or Lump-Sum Fee
A "retainer" may refer to a payment that the lawyer (1) will hold and credit against legal costs that are incurred; (2) considers a "minimum fee" to be credited against legal services that are provided, but will also not be refunded if legal services are not rendered; and (3) expects to be an engagement fee that is "non-refundable" regardless of whether the lawyer performs legal services. Pa. Eth. Op. 95-100 (1995).

With respect to the advance payment retainer fee, the lawyer must return any portion that remains unearned after services are performed. PA-R 1.5 cmt. Because the Rules do not provide a clear position otherwise, there is no general prohibition against the deposit of an advance payment retainer fee into the lawyer's operating account. Rather, the "appropriate inquiry should be the expectations of the parties" when determining whether the lawyer should have placed the advance fee in escrow instead. Thus, a lawyer may deposit the advance fee in the lawyer's operating account if the client is provided with a written statement pursuant to PA-R 1.5(b) or a written agreement that discloses to the client how the fee will be held. Pa. Eth. Op. 95-100 (1995).

Similarly, absent a written statement satisfying PA-R 1.5(b) or a written agreement stating that the minimum fee is non-refundable, a minimum fee is treated as an advance payment retainer fee with respect to payment and deposit. Pa. Eth. Op. 95-100 (1995).

PA-R 1.5 does not contain an express prohibition of a "non-refundable" retainer. As a fee agreement, however, such a retainer may not be "illegal or clearly excessive" under PA-R 1.5(a). See Pa. Eth. Op. 95-100 (1995) (suggesting that, under certain circumstances, portion of non-refundable retainer must be returned to client to prevent retainer from being considered "clearly excessive" under PA-R 1.5(a)); see also Pa. Eth. Op. 93-201 (1994) (non-refundable retainer may be considered unreasonable fee if client terminates relationship before services are fully rendered). The lawyer must provide the client with a clear, written statement if the lawyer plans to deposit the non-refundable retainer in the lawyer's general operating account, rather than in escrow. Pa. Eth. Op. 95-100 (1995).
Customer: replied 1 year ago.

OK, will you access these opinions and send me copies?

Expert:  Roger replied 1 year ago.
The relevant portions of those opinions regarding non-refundable retainer fees are quoted above. However, I have not been able to access the full opinions.
Customer: replied 1 year ago.

I can't POSITIVELY RATE this answer unless I can get copies of the full opinions. Let me know if you want to withdraw.

Expert:  Roger replied 1 year ago.
I find it hard to believe that the ethics opinions aren't available on Lexis-Nexis. However, there is no public access to these opinions. All I can access are the rules of ethics. I've spent over an hour scowering my legal resources for access and haven't been able to come up with anything.

The link above provides access to the opinions, but you must be a PA Bar Member to review the information, and I'm not a member of the PA Bar.

I'll be glad to opt out and open the question back up. If you can't get any additional help, I think the rules and quotes from the cases will give you a good deal of information.
Expert:  Roger replied 1 year ago.
The question is open to others.
Customer: replied 1 year ago.

"I think the rules and quotes from the cases will give you a good deal of information."


 


I already had the rules. They referenced the aforementioned opinions. I indicated that I needed the opinions.


 


I'll wait and see if someone else responds.


 


Thanks for trying.

Expert:  Roger replied 1 year ago.
I think your best chance to get the opinions is to either call the PA Bar and ask for copies OR have a local attorney access the opinions for you.

There's no access to this information otherwise.

Sorry I hit a roadblock. Good luck!
Customer: replied 1 year ago.

OK thanks.

Customer: replied 1 year ago.

I don't want to rate Bad Service or Poor Service.


What do I do now?


I don't want to pay if I didn't get what I asked for.


 


 

Expert:  Roger replied 1 year ago.
You haven't been charged anything. Just standby and see if another attorney picks up the question.

You aren't charged from your account UNLESS you rate the service. So, just don't do that until you get the answer you want.

Also, you can close the question by clicking the HELP button below.
Customer: replied 1 year ago.

OK thanks. I'll see if anyone else can help.


 


 

Expert:  Roger replied 1 year ago.
Ok. I'll try to find someone licensed in PA...
Customer: replied 1 year ago.

Kirk, I HAVE been charged the $45.00 on my credit card.


 


 

Expert:  Roger replied 1 year ago.
Hi -

Your credit card may have been charged to place the money into your JA account, but that money hasn't been paid out to me - - it still should be in your account.

However, since no one has picked up this question, why don't you contact customer service by clicking the HELP button below and ask them about this issue. They are generally VERY helpful with this type of issue, and you should be able to get the matter worked out.

I'm sorry that no one was able to pick this up.

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