New California Rules Make It Easier to Get Refund of Flat Fees After Firing Immigration Lawyer

Paying one's immigration attorney on a flat-fee rather than hourly basis is common in California as elsewhere, but can lead to problems if the attorney stops providing services. New rules attempt to make reimbursements for services never rendered easier for clients to claim.

** LEGAL UPDATE **

Paying one's immigration attorney on a flat-fee rather than hourly basis is common in California, as it is elsewhere. Such a payment arrangement can benefit both lawyer and client, by avoiding surprises in a situation where the lawyer can usually predict the amount of hours and effort to be spent.

But complications can arise in any flat-fee arrangement, particularly when the client fires the lawyer (or vice versa) before the work is done or when an anticipated portion of the services is no longer needed.

If, for example, your lawyer prepares an adjustment of status application based on a non-citizen's marriage to a U.S. citizen, and the lawyer's flat fee was intended to cover the green card interview, but then the couple divorces before the interview takes place, what happens to the flat fee that was paid, or agreed upon, upfront?

In theory, a lawyer is allowed to keep any portion of the fee that covers services already rendered and must return the rest. That doesn't always play out well, however. Attorneys can claim they spent enough hours already to justify keeping the entire fee; or might get into trouble because they've already cashed the check and spent it.

To address such situations, the Supreme Court of California has approved a major overhaul of the state's Rules of Professional Conduct for attorneys. Going forward (beginning November 1, 2018), an attorney can't simply walk off with a flat-fee client's cash. California attorneys must, unless the client consents to a different arrangement:

  • put all fees paid in advance into a trust account (a dedicated bank account), and
  • only remove the money once they've performed services so as to earn it.

Notice that you may consent to give up your rights as a client in this matter, and just say, "Sure, put the money in your regular account, it's all yours from the start." (Such a statement must be in writing if the fee amount is $1,000 or more.)

Whether you'd want to give up your rights this way is questionable. It's possible, though, that the lawyer can refuse you as a client in that situation.

What's more likely to happen is that the attorney follows the trust-account rules and, to avoid disputes later, sets forth in your written representation agreement a set of stages of representation, with a breakdown of what fees will be considered earned and by when. In the adjustment of status scenario described above, for example, the lawyer might put the following into a $1,500 fee agreement:

  • initial meeting with client, $600
  • submission of I-485 adjustment of status packet to USCIS, $500
  • attendance at USCIS interview, $400.

As each step is taken, the lawyer will then remove the money from the trust account and can legally assume that you are no longer able to ask for a reimbursement if something changes and the lawyer doesn't provide the rest of the intended services.

Effective Date: November 1, 2018