Montana Lawyer April/May 2025

anticipated legal services to be provided on the entire matter. See Rule l.5(a). 7. The Rules do not allow a lawyer to sidestep the ethi cal obligation to safeguard client funds by characterizing an advance as “nonrefundable” and/or “earned upon receipt.” A lawyer may not charge an unreasonable fee. See Rule 1.5(a) (“A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”). A lawyer may require advance payment of a fee but is obliged to return any unearned portion. See Rule 1.16(d). See also, Rule 1.15(c). Therefore, under the Rules, an advance fee paid by a client to a lawyer for legal services to be provided in the future cannot be nonrefundable. Any unearned portion must be returned to the client. Labeling a fee paid in advance for work to be done in the future as “earned upon receipt” or “nonrefundable” does not make it so. See , e.g., In re O’Farrell , 942 N.E.2d 799, 803 (Ind. 2011) (“Regardless of the term used to describe a client’s initial payment, its type is determined by its purpose, i.e., what it is intended to purchase.”); Mo. Sup. Ct. Advisory Comm. Formal Op. 128 (Amended 2018) (labels not conclusive); In re Wintroub , 277 Neb. 787, 801; 765 N.W.2d 482 (2009) (citing cases from several jurisdictions for the proposition that “a lawyer may not retain an unearned fee, even if the fee agreement clearly provides that the fee is nonrefundable”); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Turner , 918 N.W.2d

130, 147 (Iowa 2018) (simply labeling payment of advance fees as “nonrefundable” does not relieve attorney from obli gation to deposit them into trust accounts). 8. As noted in the original Opinion, an “engagement retainer fee” or “general retainer” is a “fee paid, apart from any other compensation, to ensure that a lawyer will be available for the client if required. Such a retainer must be distinguished from a lump-sum fee [i.e., a “flat” or “fixed fee”] constituting the entire payment for a lawyer’s service in a matter and from an advance payment from which fees will be subtracted ( see Restatement (Third) of the Law Governing Lawyers § 34, Comment e and § 38, Comment g). An en gagement or general retainer fee agreement must comply with Rule l.5 and should expressly include the amount of the retainer fee, describe the service or benefit that justifies the lawyer’s earning the retainer fee, and state that the retainer fee is earned upon receipt. As defined above, an engagement or general retainer fee will be earned upon receipt because the lawyer provides an immediate benefit to the client, such as foregoing other business opportunities by making the law yer’s services available for a given period to the exclusion of other clients or potential clients, or by giving priority to the client’s work over other matters. A sample form is available on the State Bar’s website at https://www.montanabar.org/ News/View/ArticleID/12105

The Humane Society of Western Montana is proud to host the Mountain Animal Welfare Summit June 11-13th at the University of Montana. This conference includes a dedicated track for law enforcement professionals who are faced with navigating animal cruelty cases. Whether you’re a county attorney, animal control officer, sheriff or member of the Animal Law Section (or just interested!), this session offers valuable insight and a platform to share the unique challenges facing your community. This specialized course will cover the full scope of animal cruelty issues, from understanding applicable laws to navi gating the complexities of building a case and taking it to trial. A key feature of the training includes a simulated crime scene modeled after recent Montana cases, offering a hands on, real-world experience.

We developed this track because we recognize that ani mal cruelty cases are often complex, especially in rural areas like Montana. Many incidents go unseen, and often, when discovered are so large or costly to prosecute that coun ties are left without clear solutions. Our goal is to equip law enforcement across the state with practical tools and knowl edge to address these cases effectively. We are confident that every county in Montana is likely facing—either now or in the near future—an animal cruelty or hoarding situation. The team of experts we have assembled for this track are here to help you be ready. 5.25 hours of general Continuing Legal Education has been approved. Scholarships are available in the law enforcement track. To register to to https://myh swm.org/summit/ For more information on individual ses sions and speakers https://myhswm.aflip.in/summitguide.

16 MONTANA LAWYER

WWW.MONTANABAR.ORG