Advisory Opinion: 2197

Year Issued: 2009

RPC(s): 1.5(f)(1), 1.15A(c)(2), 7.1

Subject: non-refundable availability retainer

I. Questions Proposed:

1. Lawyer’s hourly billing rate is $195.00/hour. Can lawyer charge, and receive from a client a “non-refundable ‘availability’ retainer”, treat the fee as lawyer’s own property, and in exchange “credit” the client ten hours of future legal services without violating RPC 1.5(f)(1)?

2. In the alternative, can lawyer bill $1950.00, treat the fee as lawyer’s own property, and in exchange promise to provide the client ten hours of “pro bono” legal services?

II. Response:

1. The arrangement described is not a retainer under RPC 1.5(f)(1) because it contemplates crediting amounts received as compensation for legal services. Therefore, the advance payment of $1,950 must initially be deposited into a trust account under RPC 1.15A(c)(2).

2. The performance of legal services in exchange for compensation at the equivalent of normal hourly billing rates would not properly be considered “pro bono publico” service, and to characterize it as such would violate RPC 7.1.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.