Ohio Board Advisory Opinion Op 96-004

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 96-4
Issued June 14, 1996
[WITHDRAWN by Adv.Op. 2016-01 on February 12, 2016]
SYLLABUS: It is proper for a lawyer to enter a flat fee agreement requiring
a criminal defendant to pay a fixed amount in advance of representation in a
criminal matter. The flat fee agreement must comport with the Ohio Code
of Professional Responsibility. Under DR 2-106(A), the flat fee must not be
excessive. Under DR 5-103(B), the client must remain ultimately liable for
expenses of litigation. Under DR 6-101 and DR 7-101, the flat fee
agreement must not interfere with an attorney’s duties of competent and
zealous representation to each client. Under DR 9-102, a flat fee paid in
advance of representation may be deposited into the lawyer’s business
account upon receipt pursuant to the agreement between the lawyer and
client that the flat fee will be paid in advance of the representation. Under
DR 2-106(A) and DR 2-110(A)(3), a flat fee paid in advance of
representation in a legal matter should not be deemed nonrefundable.
OPINION: This opinion addresses a flat fee agreement requiring a client’s
payment of a fixed amount in advance of representation in a criminal matter.
It does not address payment of a retainer to an attorney to secure availability
of the lawyer’s services over a period of time without regard to a specific
matter.
Is it proper for a lawyer to enter a flat fee agreement requiring a
criminal defendant to pay a fixed amount in advance of
representation in a criminal matter?
Fee agreements must comply with DR 2-106 of the Ohio Code of
Professional Responsibility.

Opinion 96-4 2
DR 2-106. Fees for Legal Services
(A) A lawyer shall not enter into an agreement for, charge, or
collect an illegal or clearly excessive fee.
(B) A fee is clearly excessive when, after a review of the facts, a
lawyer of ordinary prudence would be left with a definite
and firm conviction that the fee is in excess of a reasonable
fee. Factors to be considered as guides in determining the
reasonableness of a fee include the following:
(1) The time and labor required, the novelty and
difficulty of the questions involved, and the
skill requisite to perform the legal service
properly.
(2) The likelihood, if apparent to the client, that the
acceptance of the particular employment will
preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for
similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitation imposed by the client or by
the circumstances.
(6) The nature and length of the professional
relationship with the client.
(7) The experience, reputation, and ability of the
lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
(C) A lawyer shall not enter into an arrangement for, charge, or
collect a contingent fee for representing a defendant in a
criminal case.
Fixed fees are expressly recognized as a type of legal fee in DR 2-
106(B)(8). Fixed fee agreements are required in criminal representations,
since contingent fees in criminal cases are prohibited under DR 2-106(C).

Opinion 96-4 3
A flat fee is a type of fixed fee. Flat fees are based upon factors
independent of the actual number of hours involved in a representation. Flat
fees provide certainty to clients with regard to costs of legal services while
allowing attorneys to be paid a fair sum for their services. Flat fees are used
for routine and standardized services, but are increasingly being used in
representations that present uncertainties about the amount of time the
lawyer will expend. See ABA/BNA Lawyer’s Manual on Professional
Conduct, 41:306 (2/23/94).
Criminal matters do present uncertainty with regard to the amount of time
that may be expended, since the matters may be resolved through dismissal,
plea agreement, or trial. However, time is but one factor to consider when
determining the reasonableness of a fee under DR 2-106(B) . See e.g., ABA,
Informal Op. 1389 (1977) permitting the use of a fixed fee in advance for
legal work on tax matters or litigation before the Tax Court when the fixed
fee embraces all work to be done, whether it be relatively simple and of
short duration, or complex and protracted.
This Board has addressed the use of flat fees, but in the context of a flat fee
agreement between a law firm and an insurer/third party administrator of
group health benefit plans. In Opinion 95-2 (1995), the Board advised that
the propriety of a flat fee agreement is based upon a variety of factors. A
fixed flat fee is subject to the restriction in DR 2-106(A) that it not be
excessive. A fixed flat fee cannot circumvent the requirement of DR 5-
103(B) that clients must remain liable for expenses of litigation. A fixed
flat fee agreement must not limit an attorney’s duties of competent and
zealous representation to each client under DR 6-101 and DR 7-101. See
Ohio SupCt, Bd of Comm’rs on Grievances and Discipline, Op. 95-2
(1995).
When the payment of a flat fee is in advance of representation, there are
additional ethical considerations. Should a flat fee be place into the
attorney’s business account or should it be deposited into a client trust
account? May the fee be nonrefundable?
DR 9-102(A) requires that the identity of all client funds paid to a lawyer or
a law firm be preserved by deposit into an identifiable bank account,

Opinion 96-4 4
separate from an account for deposits of the lawyer’s or law firm’s funds.
Funds belonging in part to a client and in part presently or potentially to a
lawyer or law firm must be deposited therein as required under DR 9-
102(A)(2). These restraints are for the protection of clients.
DR 9-102. PRESERVING IDENTITY OF FUNDS AND
PROPERTY OF CLIENT
(A) All funds of clients paid to a lawyer or law firm, other than
advances for costs and expenses, shall be deposited in one
or more identifiable bank accounts maintained in the state in
which the law office is situated and no funds belonging to
the lawyer or law firm shall be deposited therein except as
follows:
(1) Funds reasonably sufficient to pay bank
charges may be deposited therein.
(2) Funds belonging in part to a client and in part
presently or potentially to the lawyer or law
firm must be deposited therein, but the portion
belonging to the lawyer or law firm may be
withdrawn when due unless the right of the
lawyer or law firm to receive it is disputed by
the client, in which event the disputed portion
shall not be withdrawn until the dispute is
finally resolved.
In this Board’s view, DR 9-102(A) does not require that flat fees paid in
advance for representation in a criminal matter be placed in a trust account.
A flat fee for representation in a matter may be placed into the attorney’s
business account upon receipt, based upon the agreement between the
lawyer and client that the flat fee will be paid in advance of representation.
By agreement, the funds are given to the lawyer in exchange for the promise
to represent the client in the matter. However, deposit into a business
account does not mean that the fee is nonrefundable.

Opinion 96-4 5
A flat fee paid in advance for representation in a legal matter should not be
deemed nonrefundable. Nonrefundable fees paid in advance of
representation allow attorneys to keep unearned fees for which a client
receives little or no benefit. Nonrefundable advance fees are a problem
when there is discharge of a lawyer by a client or when a lawyer withdraws
from a case . See Cincinnati Bar Ass’n v. Schultz, 71 Ohio St. 3d 383, 384
(1994).
Ethics committees in Ohio disapprove of nonrefundable fee agreements.
See Ohio State Bar Ass’n, Informal Op. 90-8 (1990); Columbus Bar Ass’n,
Op. 5 (1988); Bar Ass’n of Greater Cleveland, Op. 84-1 (1984). But cf.
Toledo Bar Ass’n, Op. 93-8 (1993) advising that nonrefundability is
improper or proper depending upon the fact situation.
Ethics committees in other states have found disfavor with nonrefundable
fee contracts in criminal defense representations. See Kansas Bar Ass’n,
Op. 84-12 (1984), North Carolina State Bar Ass’n, Op. 106 (1991), Virginia
State Bar, Op. 646 (1985). In New York, the state’s highest court has held
that nonrefundable retainers clash with public policy and contravene the
Code of Professional Responsibility. See In re Cooperman, 83 N.Y. 2d 465,
633 N. E. 2d 1069, 611 N.Y.S. 2d 465 (1994), aff’g 591 N.Y.S. 2d 855
(A.D. 2 Dept. 1993). Among the bar, the issue of nonrefundability attracts
attention. See Lester Brickman & Lawrence A. Cunningham,
Nonrefundable Retainers: A Response to Critics of the Absolute Ban, 64 U.
Cin. L. Rev. 11 (Fall 1995); Steven Lubet, The Rush to Remedies: Some
Conceptual Questions About Nonrefundable Retainers, 73 N.C.L. Rev. 271
(Nov. 1994); Lester Brickman & Lawrence A. Cunningham, Nonrefundable
Retainers Revisited, 72 N.C.L. Rev. 1 (Nov. 1993).
Nonrefundable advance fees contradict the requirement of DR 2-110(A)(3)
that “[a] lawyer who withdraws from employment shall refund promptly any
part of a fee paid in advance that has not been earned.” A nonrefundable
advance fee agreement unfairly penalizes a client who discharges a lawyer.
In conclusion, it is proper for a lawyer to enter a flat fee agreement requiring
a criminal defendant to pay a fixed amount in advance of representation in a
criminal matter. The flat fee agreement must comport with the Ohio Code

Opinion 96-4 6
of Professional Responsibility. Under DR 2-106(A), the flat fee must not be
excessive. Under DR 5-103(B), the client must remain ultimately liable for
expenses of litigation. Under DR 6-101 and DR 7-101, the flat fee
agreement must not interfere with an attorney’s duties of competent and
zealous representation to each client. Under DR 9-102, a flat fee paid in
advance of representation may be deposited into the lawyer’s business
account upon receipt pursuant to the agreement between the lawyer and
client that the flat fee will be paid in advance of the representation. Under
DR 2-106(A) and DR 2-110(A)(3), a flat fee paid in advance of
representation in a legal matter should not be deemed nonrefundable.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.