tHeetHiCsof “ nonrefundABle ” legAlfees
Professionalism & Ethics Committee Chairs : DebbieBaker – LondonBakerLaw , P . A . & SheltonBridges – BridgesLaw
thebottomlineisthat anylegalfeemust bereasonable .
“ The sooner the result in your case , the better for everyone , right ? So let ’ s do a flat fee .” The answer may seem to be “ sure .” But are nonrefundable legal retainers permissible under Florida ethical rules , and are they good business practice ? The bottom line : legal fees must be reasonable . So unearned portions of legal fees must be returned promptly . As the comment to Rule 4-1.16 of the Rules Regulating The Florida Bar states : “ Upon termination of representation , a lawyer should refund to the client any advance payment of a fee that has not been earned . This does not preclude a lawyer from retaining any reasonable nonrefundable fee that the client
agreed would be deemed earned when the lawyer commenced the client ’ s representation .”
So even where a written fee agreement calls the fee “ non - refundable ,” Florida attorneys must return that portion which has not been earned if the attorney is discharged early . Why ? Because nonrefundable flat fees : ( 1 ) pit clients ’ interests in thoroughness against lawyers ’ interests in doing no more than the minimum necessary , and ( 2 ) inherently conflict with clients ’ rights to terminate attorney-client relationships at any time . Hence , reasonable fees generally reflect payment only for legal work actually done . There is one exception : nonrefundable general retainers or “ availability fees .” These are earned upon receipt to secure an attorney ’ s availability by foreclosing the attorney from appearing for an adverse party .
The Committee on Professional Ethics of The Florida Bar Opinion Number 93-2 states : “ The Committee believes that there should exist a presumption that prepaid fees are an advance deposit against fees for work that is yet to be performed . Certainly , this is the assumption that the typical client would make . The attorney should bear the burden of rebutting this presumption .” 1
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