By David Majchrzak and Edward McIntyre
19.4.8 San Diego County Bar Association Legal Ethics Committee Opinion 2019-3
Issue: How should a lawyer calculate the amount of the unearned fee due to the client where the fee agreement provides for a flat fee paid in advance and the lawyer does not complete all services required under the flat fee agreement?
Analysis: A lawyer may agree with client in the attorney fee agreement as to a method of calculating the unearned portion of the fee if services in the flat fee engagement are not completed before the termination of the lawyer’s employment, provided that the methodology results in a fee commensurate with the reasonable value of the lawyer’s services and is not unconscionable.
In the absence of an agreed upon method, the amount of unearned fee that must be returned will depend on a number of factors similar to the factors used in the evaluation of whether the fee paid to the lawyer represents the reasonable value of the lawyer’s services and is not unconscionable.
David Majchrzak and Edward McIntyre are co-editors of Ethics Quarterly.