An analysis by the aforementioned authorities shows that Texas Ethics Opinion 391 is still viable, but is rejected to the extent that it asserts that any conservation qualified as non-refundable is deserved at the time of receipt. A fee is not earned simply because it is classified as non-refundable. If the (real) retention is not excessive, it is considered deserved at the time of receipt and can be paid into the lawyer`s account. However, if the lawyer is dismissed for unexplained reasons or voluntarily withdraws before opportunities are lost, DR 2-110 requires the lawyer to immediately reimburse a fair part of the safeguard. 1. Intrusion into the client`s right to exonerate the lawyer if the client fears that the rightful one is not lost under any circumstances. 2. If the lawyer`s complaint reduces the value of the retainer and dismisses it for as yet unexplained reasons or voluntarily withdraws, an appropriate portion of the deduction must be refunded to the client. (3) The fee may be excessive if it is not determined by relevant factors such as the degree of likelihood of effectively excluding another job, as well as the lawyer`s experience, reputation and skills.
See DR 2-106. (9-0). Other states have also issued ethical opinions regarding non-refundable conservation persons outside the context of internal relations. The Washington State Bar Association issued a statement in October 1980, which was published in the Washington State Bar News. The notice stated: “A curator is the non-refundable tax paid by a client to ensure the availability of a lawyer for a certain period of time and which should not be withheld from the lawyer`s trust account, since it is considered to be earned by counsel at the time of payment. Whether client funds should be deposited into the lawyer`s trust account depends on the consent of the lawyer and the client, whether the funds are a deposit or a down payment for a prepayment. (Op. 173, citing DR 2-110 (A) (3), DR 9-102 (A) (2)). This notice recommends that the lawyer sign a written fee agreement for each client in such situations. Does Texas not, it seems, have definitive jurisprudence on non-refundable storage and storage? If the “conservation tax” is indeed a down payment for the benefits to be provided, the amount of the fee should relate to the services to be provided. If this is not the case, the levy may be considered excessive.
For example, an agreement that is in fact a down payment could provide: “Responsibility for the provision of legal services is accepted and work begins when the lawyer receives the “pre-guard against fees and expenses.” Kazen, supra 40.03F (2), at 40-58. In such a case, when the client discharges the lawyer, the portion of the tax that was not earned was refunded. See ABA Comm. on Professional Ethics, Informal Op. 988 (1967) (a non-refundable retainer should only be retained if it is won). However, the unique experience of a lawyer required to review a particular case can be seen as a factor in assessing the adequacy of the royalty. While a non-refundable conservation right holder is not in itself unethical, a lawyer may be disciplined for refusing to refund an undeserved tax (DR 2-110(A) (3)) or to collect a significantly excessive tax (DR 2-106). This seems to pose an ethical dilemma that resolves the question of whether a fee is earned and whether it is excessive? A conservation tax is a payment intended to compensate a lawyer for his obligation to provide certain services and to forego other employment opportunities. Ineligible beneficiaries are not, of course, unethical, but should be used with caution. Such agreements raise at least three potential problems: an opinion from the Maryland law firm, No.
80-21, echoes in this language in Washington`s opinion: “A lawyer or a lawyer