Proposed Formal Opinion Interim No. 20-0003 (Flat Fees and Termination)

The State Bar seeks public comment on Proposed Formal Opinion Interim No. 20-0003 (Flat Fees and Termination).

Deadline: December 11, 2025, 11:59 p.m.

Direct comments to

Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.

Background

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with applicable State Bar policy and procedure, the committee shall publish proposed formal opinions for public comment. (See State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016.)

Discussion/proposal

Proposed Formal Opinion Interim No. 20-0003 considers:

What are the ethical obligations of attorneys representing clients pursuant to a flat fee agreement where the representation is terminated before the legal services specified in the agreement have been completed, or where the scope or complexity of the matter turns out to be greater than the attorney and client contemplated?

The opinion interprets rules 1.5, 1.8.1, 1.15, and 1.16 of the Rules of Professional Conduct of the State Bar of California and Business and Professions Code section 6148.

The opinion digest states: An attorney may agree to charge a flat fee for legal services but must clearly state what services are covered by the fee and should clearly state when the fee or portion thereof is earned. If the flat fee is paid in advance of the services being rendered, the attorney may deposit the fee into the lawyer’s operating account if compliance with rule 1.15(b) is met. If the representation is terminated and any of the services for which the flat fee has been or will be paid are incomplete, then the lawyer must determine the appropriate amount to be charged and must refund any advanced unearned funds, even if deposited into the operating account after compliance with rule 1.15(b). Where an appropriate amount to be charged cannot be agreed upon between the attorney and client, the dispute may be resolved through arbitration or by a court. If a flat fee is renegotiated “midstream,” a lawyer must comply with rule 1.8.1 and such renegotiation is subject to ethical scrutiny for fairness and reasonableness.

At its October 17, 2025, meeting, and in accordance with their procedures, COPRAC tentatively approved Proposed Formal Opinion Interim No. 20-0003 for a 45-day public comment distribution.

Any fiscal/personnel impact

None

Background material
Source

State Bar Standing Committee on Professional Responsibility and Conduct

Deadline

December 11, 2025, 11:59 p.m.

Direct comments to

Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.