Is it ethical to fail to make an exception to the refund clause considering my circumstances? 12 Answers as of September 23, 2013

As I have now discovered it may not be necessary or beneficial for me to file for bankruptcy as I have no assets for my creditors to attach. Accordingly, I asked my attorney to refund my money or charge me a small amount. My contract states the fee is not refundable. However, there has been no work nor action taken on my behalf. I am 74, disabled, on a fixed income, and receiving housing assistance I understand that an attorney may have a clause to protect them in the event an individual decides to change attorneys or not pay for services. This is not the case here. I did not receive advice from this attorney regarding the possibility of NOT filing for bankruptcy. It feels as if the attorney is kicking me when I am already out! There must be some basis for an ethical exception to the refusal to refund fees..

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Charles R. Chesnutt, P.C.
Charles R. Chesnutt, P.C. | Charles R. Chesnutt
Generally, it is unethical to fail to refund a fee for work that was not performed no matter what the contract says. You may wish to point this out to the attorney.
Answer Applies to: Texas
Replied: 9/23/2013
Elkington Law
Elkington Law | Sally Elkington
Generally retainers are refundable minus the cost of any work that attorney has done including fielding telephone calls. Write the attorney a letter and request a billing for all work completed on your case and a copy of your file. If no work has been done, contact your state bar association to review your options.
Answer Applies to: California
Replied: 9/20/2013
Stuart P Gelberg
Stuart P Gelberg | Stuart P Gelberg
There is no such thing as a nonrefundable retainer in NYS. He is entitled to be paid for the work he did. Sincerely doubt that the atty did "no work". He met with you correct? He opened a file.Do you think his time is worthless?
Answer Applies to: New York
Replied: 9/20/2013
Law Office of William Stoddard | William Stoddard
You may with to contact the bar association and report you have a fee dispute. They have a process that probably can be used to help resolve your circumstance.
Answer Applies to: Washington
Replied: 9/20/2013
Janet A. Lawson Bankruptcy Attorney
Janet A. Lawson Bankruptcy Attorney | Janet Lawson
You can always file a state bar complaint.
Answer Applies to: California
Replied: 9/19/2013
    Law Office of David T Egli | David T. Egli
    Just calling a fee "nonrefundable" doesn't necessarily make it so. Under California law, except for a true retainer, when the attorney's employment is terminated, the attorney must provide an accounting for the fee you paid th attorney and promptly refund any unearned portion of the fee. A "true retainer" is a fee paid to an attorney to ensure that the attorney will be available for a specific period of time or for a specific matter. As your agreement requires the attorney to do more than just be available, it is not a true retainer. You should write to the attorney to request that the attorney provide you with an accounting for the fees paid by you to him and demand that all unearned portion of the fee be repaid to you. If you don't receive an accounting and refund, or the accounting and refund you believe is insufficient (for eample it doesn't explain how the attorney determine the amount to keep or the reason for keeping the amount is set forth as nonrefundable pursuant to your fee agreement, you may want contact the State Bar for assistance. If you do receive an accounting, but only a partial refund, you may want to request that the issue as to the fee of the attorney be resolved through the fee arbitration program of your county's bar association or, if it does not have one, the State Bar fee arbitration program. While such programs are intended to be low cost alternatives to resolving fee disputes, you will have to determine if it makes sense to proceed with fee arbitration in light of the time requirements and costs of using the fee arbitration.
    Answer Applies to: California
    Replied: 9/19/2013
    The Salas Firm
    The Salas Firm | Ron Salas
    I have a similar clause in my agreement based on the fact that there is legal advice and preparation involved in any case as soon as the fee is received and advice is provided.
    Answer Applies to: Colorado
    Replied: 9/19/2013
    A Fresh Start
    A Fresh Start | Dorothy G Bunce
    Contracts are not about ethics unless the contract asks you to do something illegal. Sounds like you expect everyone to cut you a break because you are special.
    Answer Applies to: Nevada
    Replied: 9/19/2013
    Timothy Casey Theisen, P.A. | Tim Theisen
    The lawyer must give you time records showing what they have done, and refund whatever they did not earn. If you have problems, you should contact the lawyer's board of professional responsibility. Here is the rule: Fee agreements may not describe any fee as nonrefundable or earned upon receipt but may describe the advance fee payment as the lawyer's property subject to refund. Whenever a client has paid a flat fee or an availability fee pursuant to Rule 1.5(b)(1) or (2) and the lawyer-client relationship is terminated before the fee is fully earned, the lawyer shall refund to the client the unearned portion of the fee. If a client disputes the amount of the fee that has been earned, the lawyer shall take reasonable and prompt action to resolve the dispute.
    Answer Applies to: Minnesota
    Replied: 9/19/2013
    Musilli Brennan Associates PLLC
    Musilli Brennan Associates PLLC | John F Brennan
    There is no legal or ethical failure on the part of the attorney, it was your agreement and contract with him. Perhaps he might consider some consideration if it make economic sense.
    Answer Applies to: Michigan
    Replied: 9/19/2013
    The Law Offices of Deborah Ann Stencel | Deborah A. Stencel
    I doubt that no refund clause is ethical under your state bar rules, but to know for sure, the bar would need to review the agreement after you make a complaint. To be fair, your attorney has probably undertaken some work and is entitled to retain a portion of the fee you paid. Remember, all bankruptcy clients are in financial straits and have very sympathetic stories. Nevertheless, attorneys are still entitled to be paid for their time, assuming they provide quality ethical representation. In Wisconsin, fee disputes can be referred to an arbitrator. Check for a similar service in your state. Best wishes.
    Answer Applies to: Wisconsin
    Replied: 9/19/2013
    The Schreiber Law Firm
    The Schreiber Law Firm | Jeffrey D. Schreiber
    Attorneys cannot keep fees they have not earned, despite whatever language is in their agreement. Call the bar association and file a complaint.
    Answer Applies to: California
    Replied: 9/19/2013
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