Attorneys Fees, Fee Agreement, Flat Fee Earned Only When Work Is Done, 1, 7
Under Rule of Professional Conduct 1.5, an attorney fee agreement may not provide that money paid toward fees is non-refundable or earned upon receipt unless the fee is a true retainer, properly disclosed as payment solely for the lawyer’s availability to perform work for the client. By contrast, fees paid under a flat fee agreement are earned only when the lawyer performs the contracted work, and until then the money is the client’s and must be refunded if the work is not done, even though the rules allow the lawyer to place the flat fee into his operating account. Here, the trial court correctly concluded that an advance payment of a flat fee for work not yet performed was the client’s property and thus subject to execution to enforce a third party’s judgment against the client.