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Grievance Administrator v Patricia M. Cooper. Case No. 06-36-GA -- Board Opinion Page 30
( with the fee agreement. The fact that the agreement says "NO portion of the MINIMUM FEE
referred to above is REFUNDABLE, to- the client, under any circumstances" does not change this.
Such language does not by itselfestablish that a fee is earned, especially when accompanied by other
language that clearly states, "This MINIMUM FEE shall entitle Client to a combined amount of
Attorneyand Legal Assistant time computed in accordance with the hourly rate set forth in Paragraph
3 below. Respondent owed her client a refund under the fee agreement drafted by respondent, and
under the Rules ofProfessional Conduct. The failure to refund these unearned fees was a violation
ofMRPC 1.16(d) and MRPC 1.15(b).
Our survey of the development of the law from the perspective of a Michigan practitioner
convinces us that our conclusions regarding misconduct are sound, but that, as the Administrator
suggests, the consequences for misconduct are appropriately tempered in this case. We cannot deny
that the law and ethics opinions in this area have afforded something less than coherent guidance.
Indeed, it was only recently, and only in a memorandum to the Michigan Supreme Court, that we
expressed the view that there really is no such thing as a nonrefundable retainer. 57
Though we find misconduct, we conclude that it is appropriate to enter an order imposing no
discipline under the circumstances ofthis case which include an attempt to resolve the matter with
a partial refund, consultation with ethics advisors, and review ofethics opinions. Respondent shali
pay restitution to her client in the amount of$I,385.75, the balance ofthe unearned fees.
Board Members William P. Hampton, William L. Matthews, C.P.A., Billy Ben'Baumann, M.D.,
William 1. Danhof, and Andrea L. Solak concur in this decision.
Board Members Lori McAllister, Rev. Ira Combs, Jr., George H. Lennon, and Hon. Richard F.
Suhrheinrich, were absent and did not participate.
57 September 29, 2005 ADB Memorandum regarding clarification of lawyers' duties in handling
"retainers" or fees paid in advance, p 12.