Publication Date

11-1993

Journal

North Carolina Law Review

Abstract

Amidst widespread public attention to fee abuses, a court recently held for the first time that nonrefundable retainers violate professional ethics. The court in In re Cooperman essentially adopted the argument of Professors Brickman and Cunningham that nonrefundable retainers are against public policy because they impair a client's right to discharge his attorney at any time without penalty. Because declaring such agreements unethical is tantamount, in the eyes of the practicing bar, to declaring them void, In re Cooperman has sparked a national outcry from those who profit from enforcing nonrefundable retainers.

In this Article, Professors Brickman and Cunningham analyze the recent judicial adoption of their ethical argument. The authors first distinguish the many different categories of retainer agreements, confusion of which has led critics of Cooperman to misinterpret the court's holding. The Article then clarifies some confusing aspects of the Cooperman opinion itself. The authors conclude that future courts, in addition to declaring nonrefundable retainers unethical, should order restitution to the injured client, a remedy that the Cooperman court declined to provide. Various groups with vested interests in nonrefundable retainers assert their own particular justifications for such agreements, and the authors consider each argument in turn. They conclude that no proffered rationale for nonrefundable retainers is tenable because none can avoid violating the client discharge right. The authors propose an ethical rule banning nonrefundable retainers. They believe such a rule would both clarify exactly what constitutes a nonrefundable retainer as well as foreclose the possibility of drafting agreements that could escape the application of judicial bans like Cooperman. Finally, the Article explains why the client discharge right, as reinvigorated in Cooperman, implicates and should control other aspects of the attorney-client relationship as well.

Volume

72

Issue

1

First Page

1

Last Page

54

Publisher

North Carolina Law Review Association

Keywords

Legal Profession, Professional Ethics in Law, Remedies, Money

Disciplines

Law | Legal Ethics and Professional Responsibility | Legal Profession | Legal Remedies

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