Florida Bar Board of Governors Rules Committee will consider proposed rule revision prohibiting non-refundable fees

Hello and welcome to this JACPA Ethics Alert blog which will discuss the Florida Bar Board of Governors Rules Committee consideration of a proposed rule change which would prohibit non-refundable fees in Florida.  If implemented, this would significantly impact a large number Florida lawyers.

The proposed Rule revision was on the agenda of the Bar’s Rules Committee’s telephone conference call on April 17, 2012; however, the Committee deferred any vote on the proposed rule change pending further discussion.

The proposed change to Florida Bar Rule 4-1.5(d) is set forth below:

When the lawyer has not regularly represented the client, the basis or rate of the fee and costs shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.  A fee for legal services that is nonrefundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee.  A lawyer may not charge a fee that is termed “nonrefundable” or “earned on receipt.”  A lawyer may charge a fee that is an advance fee payment that is the lawyer’s property subject to refund, if the lawyer and client agree in writing.  The written agreement must set forth the basis of the fee, the amount of the fee, and that the fee is subject to refund if all or a portion of the fee is unearned.  If the lawyer charges an advance fee payment that is the lawyer’s property subject to refund and the lawyer-client relationship ends before the entire fee is earned, the lawyer must refund the unearned portion of the fee. The test of reasonableness found in subdivision (b), above, applies to all fees for legal services without regard to their characterization by the parties.

The Minnesota Supreme Court implemented a a rule which is substantially the same as the proposed rule being considered by the BOG Rules Committee which became effective on July 1, 2011.

Any comments should be sent to the individual Rules Committee and/or other Board of Governors members and/or to Elizabeth Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, 850/561-5780.  You can send comments via e-mail to Ms. Tarbert at eto@flabar.org  and she will provide them to the Rules Committee.

Bottom line:  If you have an opinion about this proposed rule change, you should make that opinion known.

Be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

 THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR MISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

NOTICE OF CONFIDENTIALITY:  This electronic communication and the information contained herein is legally privileged and confidential proprietary information intended only for the individual and/or entity to whom it is addressed pursuant to the American Bar Association Formal Opinion No. 99-413, dated March 10, 1999 and all other applicable laws and rules.  If you receive this transmission in error, you are advised that any disclosure, copying, distribution, or the taking of any action in reliance upon the communication is strictly prohibited.  Any unauthorized use, distribution, or disclosure of this communication is strictly prohibited.  If you have received this in error, please notify us immediately by return e-mail at the above telephone number and then delete message entirely from your system.  Thank you for your cooperation.

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Filed under Attorney discipline, Attorney Ethics, Florida Lawyer Ethics and Professionalism, joe corsmeier, Lawyer discipline, Lawyer ethics, Lawyer Ethics and Professionalism

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