Trial and Appellate Court Rebuff Criminal Client’s Challenges to Retainers.
In Faal v. Davis, Case No. B219520 (2d Dist., Div. 5 Oct. 14, 2010) (unpublished), a criminal lawyer represented a client later found guilty on major counts of the criminal case after having obtained a retainer of $250,000 for the criminal trial work and $50,000 for the criminal appeal. Lawyer even returned $30,000 to another client in order to expeditiously take on the appeal by the client who sued in this case, arguing that lawyer was not entitled to the $50,000 criminal appeal retainer and did not properly hold in trust certain expert witness fees from the $250,000 retainer.
Defenders Outtakes with E.G. MarshallClient appealed after the lower court issued a statement of decision in favor of lawyer.
The appellate court sustained the lower court’s decision.
Client argued the $50,000 retainer was not a true retainer, but an advance fee payment. The appellate court affirmed the use of this money, because equities compelled the fact it was used correctly no matter what its proper characterization. Lawyer actually passed up other work from a client by returning $30,000 for another opportunity such that the $50,000 retainer for emergency appellate work amply was deserved.
That brought the appellate panel to the $250,000 retainer challenge based on failure to hold expert witness fees in trust. Despite the fact that the agreements with client indicated the expert fees were independently payable, lawyer did produce accounting evidence to show that the money was spent on experts such that no surplus existed to return to client.
Much of this case turned on the substantial evidence test on appeal, which is a hard one to surmount when the record shows there was proof to support the trial court’s decision.