Second District Confirms State Bar Position in One Matter in Unpublished Decision.
In Shalant v. Client Security Fund Commission for the State Bar of California, Case No. B229947 (2d Dist., Div. 7 Jan. 30, 2012) (unpublished), the Court of Appeal confirmed for us the State Bar takes the position that Business & Professions Code section 6146 does not allow a contingent fee agreement in a medical malpractice case to provide for a non-refundable flat fee in addition to the statutory maximum contingent fee, relying on Yates v. Law Offices of Samuel Shore, 229 Cal.App.3d 583 (1991). The specific facts involved a medical mal contingency fee agreement where an attorney insisted on payment of a $25,000 nonrefundable fee and $10,000 in expert witness fees in addition to the MICRA maximum contingency fee. That resulted in successful State Bar disciplinary charges, and a subsequent Client Security Fund Commission (CSFC) decision reimbursing the $25,000 fee to client. The State Bar’s findings were given collateral estoppel effect in the appellate decision, which meant the MICRA retainer determinations were left standing.
BLOG UNDERVIEW–CSFC makes determinations of moneys to be distributed by the Client Security Fund, which allows for recovery by consumers showing they lost money as a result of dishonest conduct of California licensed attorneys. For losses occurring before January 1, 2009, $50,000 in the maximum recoverable; after this date, $100,000 is potentially the recoverable maximum.