EthixChex, 0513 ALBJ, 74 The Alabama Lawyer 200 (2013)

• Author: J. Anthony McLain

EthixChex

Vol. 74 No. 3 Pg. 200

Alabama Bar Lawyer

May 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 J. Anthony McLain

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Ethics Potpourri for $50: Fees, Gigabytes, Fellows and Files

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In the present scheme of things, the legal profession struggles against a tide of public criticism, ridicule and downright condemnation. While the majority of lawyers recognize the problems incidental to this negative perception, what are we as a profession doing to refute this with our daily actions?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This column usually presents a formal opinion of the Disciplinary Commission, which opinion is often requested by lawyers in Alabama from the Office of General Counsel. However, due to recent inquiries of bar leaders and members, I felt the need to deal with certain areas which continue to be fraught with confusion and misunderstanding by lawyers in Alabama as well as the general public.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Fees-Right, Fight or Fantasy?

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A primary motivation behind many bar grievances is an attempt by a client to receive a fee refund or reduction. The threat of the (former) client is that the lawyer must refund all or a portion of a fee or “I’ll report you to the bar!” Call it leverage, threat or extortion, but several complaints reviewed by the Disciplinary Commission are nothing more than fee disputes between the lawyer and client. And most involve the “smaller” fee-generating cases, thereby forcing the lawyer to decide whether it is worth his or her time and effort to fight the dispute, or just refund per the client’s demands.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Certain of our local bar associations utilize a fee mediation process to resolve some of the fee dispute complaints. This diverts the matter from a disciplinary investigation to a mediated resolution of the client’s dissatisfaction with the lawyer’s fee.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Disciplinary Commission has rendered opinions establishing that there is no such thing in Alabama as a “non-refundable” retainer, and that child support arrearage cases should be handled on a contingency fee basis in only the most extraordinary situations, with significant, knowing consent being required of the client in those extraordinary situations.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0However, complaints are still received by the Disciplinary...