Legal Ethics & Malpractice Reporter, Vol. 4, No. 5

Published: 31 May 2023


  • FEATURE ARTICLE: ABA Formal Opinion 505: Advanced Fee Arrangements
  • NEW AUTHORITY: The Kansas Code of Judicial Conduct
  • ETHICS & MALPRACTICE RESEARCH TIP: Articles from The Current Index of Legal Periodicals
  • BLAST FROM THE PAST: Cotton Mather on the Aim of Wisdom in Law Practice (1710)

EDITED BY: Professor Mike Hoeflich

PUBLISHED BY: Joseph, Hollander & Craft LLC

May 31, 2023


FEATURE ARTICLE: ABA Formal Opinion 505: Advanced Fee Arrangements

On May 3, 2023, the ABA issued Formal Opinion 505, “Fees Paid in Advance for Contemplated Services.” Many lawyers require clients, especially new clients, to pay money in advance as a means of ensuring that the client will pay bills as they come due. These advanced payments go by many names, and the ethics of their use are often not clear to lawyers taking them. Opinion 505 brings a greater degree of clarity to this area of billing practice.

The Opinion starts out by explaining the lack of clarity in the practices and nomenclature of advanced payments. It goes on to lay down a clear rule:

When a client pays an advance to a lawyer, the lawyer takes possession – but not ownership – of the funds to secure payment for the services the lawyer will render to the client in the future.

Then, it takes care to distinguish “true retainers” from advanced fee payments:

This opinion will also refer to the term “retainer” fee. Neither the term “retainer” nor “retainer fee” is found in the Model Rules of Professional Conduct. Regrettably, many lawyers use the term loosely to mean any sum of money paid to the lawyer at or near the commencement of representation. Whereas an advance is a deposit of money with the lawyer to pay for services to be rendered in the future, there is another type of payment that is not for services. Rather, “[t]he purpose of [a retainer] is to assure the client that the lawyer will be contractually on call to handle the client’s legal matters.” This type of agreement and payment is variously referred to as a “general retainer,” “classic retainer,” “true retainer,” “availability retainer,” or an “engagement retainer.” . . .


Authority: The Kansas Code of Judicial Conduct

Last month’s feature article discussed the problem of the appearance of improper activities by members of the United States Supreme Court. Controversy over the need for imposing ethical rules upon the justices of the Supreme Court continues as Chief Justice Roberts and other justices work to improve the public image of the Court. This month, we can do what physicists refer to as a “thought experiment.” Let us imagine that the justices of the United States Supreme Court were subject to the Kansas Code of Judicial Conduct. Kansas Supreme Court Rule 601B contains the Canons and Rules governing Kansas judges’ professional conduct. The Preamble reads:

[1] An independent, fair and impartial judiciary is indispensable to our system of justice. Our legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.

[2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.

[3] The Kansas Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary procedures.

The preamble not only explains the underlying reasons as to why we have a Code of Judicial Conduct; it gives insight into the spirit of the Code—a spirit which should be embraced by every judge in the State. . . .


ETHICS & MALPRACTICE RESEARCH TIP: Articles from The Current Index of Legal Periodicals

1. David Rapallo, House Rules: Congress and the Attorney-Client Privilege, 100 Wash. U. L. Rev. 455 (2022). 

Attorney-client privilege must be of constant concern to every practicing lawyer. 

2. Douglas R. Richmond, Lawyers’ Right of Professional Self-Defense and Its Limits, 74 S.C. L. Rev. 303 (2022). 

Doug Richmond is one of the nation’s leading experts on lawyer ethics, malpractice, and liability. Every article he writes, including the present one, is worthwhile reading.


“A Lawyer should be a Scholar, but, Sirs, when you are called upon to be wise, the main Intention is that you may be wise to do good.”

—Cotton Mather (1710), quoted in Julius Henry Cohen, The Law: Business or Profession? (1924).


About Joseph, Hollander & Craft LLC

Joseph, Hollander & Craft is a mid-size law firm representing criminal defense, civil defense, personal injury, and family law clients throughout Kansas and Missouri. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 25 attorneys covers a lot of ground, both geographically and professionally.

We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for clients who have suffered catastrophic injuries or the death of a loved one due to the negligence of others. We fight allegations of professional misconduct against medical and legal practitioners, accountants, real estate agents, and others.

When your business, freedom, property, or career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless — Ready for Anything, come what may. At JHC, we pride ourselves on offering outstanding legal counsel and representation with the personal attention and professionalism our clients deserve. Learn more about our attorneys and their areas of practice, and locate a JHC office near you.

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