Full Answer By definition, substantive laws deal with the areas of the law that establish obligations and rights of individuals, and dictate what people may or may not do. Each law has independent power to decide the fate of individual cases, but it cannot be applied in non-legal contexts.
These are important distinctions to understand because if handled incorrectly by the attorney, it may be grounds for discipline. As attorneys we should understand that when the attorney-client relationship has concluded the attorney must: State Bar 24 Cal.
In Baranowski, an attorney was disciplined for failing to return advance payments to three clients. The court explained that: Thus, such a fee is earned by the attorney when paid since the attorney is entitled to the money regardless of whether he actually performs any services for the client.
Thus, if it is contemplated that the attorney will bill against the advance payment for actual services performed, then the advance is not a true retainer because the payment is not made solely to secure the availability of the attorney.
Instead, such payments are more properly characterized as either a security deposit or an advance payment of fees for services.
For convenience, a security deposit is sometimes applied to the final invoice. A true retainer is earned upon receipt and is therefore non-refundable because it takes the attorney out of the marketplace and precludes him or her from undertaking other legal work e.
It also requires that the attorney generally be available for consultation and legal services to the client. Due to the abundance of competent attorneys in virtually all fields of law, there are probably only a handful of situations in which a client would want to pay a true retainer.
Nonetheless, true retainers do have a legitimate, if infrequent, use in the legal marketplace. In other cases, a true retainer may be used simply to prevent the attorney from representing an adverse party. We used to see this on Wall Street where large brokerages wanted to tie up the services of the best firms to eliminate them from use by their competitive brokerage house or customers, or in small communities where doctors might pay a retainer to all of the local divorce specialists to keep them from being used by their spouses.
Other than these examples though, true retainers would seem to be of little use to clients in everyday legal matters. This is an important distinction because a payment that represents a security deposit or an advance payment for services to be performed in the future remains the property of the client until earned by the attorney, and any unearned portion is to be returned to the client [Rule D 2 ; S.
Interlink Data Network 9th Cir. If the attorney is discharged or the matter is otherwise concluded before the attorney has expended 10 hours of his or her time, the attorney must refund the balance of the advance payment that has not yet been earned.
Language of Fee Agreement Not Controlling. State Bar 49 Cal.
Angell, Holmes and Lea 9th Cir. The attorney was disciplined both for client abandonment and for failure to account for and return the unearned portion of the fees. Another case in which the language of the fee agreement did not control the characterization of the advance payment is In re: Matter of Lais 3 Cal.
This fixed, nonrefundable retainer is paid to the attorney for the purpose of assuring his availability in the matter. Unconscionability There is another trap for the unwary practitioner.
Civil Code section In addition, Rule of the Rules of Professional Conduct provides that an attorney may not charge or collect an illegal or unconscionable fee.
It is therefore not surprising that in some cases, a payment that is properly characterized as a true retainer may nonetheless be unenforceable if it is found to be unconscionable. The concept of unconscionability has both procedural and substantive elements [Samura v.
Kaiser Foundation Health Plan, Inc. Substantive unconscionability refers to the harshness of the contract terms. State Bar 11 Cal. Procedural unconscionability refers to the manner in which the contract was negotiated and the circumstances of the parties at that time [Kinney v.
United HealthCare Services, Inc.Common Law. Statutory Law. Definition. Common laws are laws that have been come about through decision of courts or other decisions. Statutory laws are laws that have been written down and passed by the legislative branch of a country.
Substantive law is a statutory law that deals with the legal relationship between people or the people and the state. Therefore, substantive law defines the rights and duties of the people, but procedural law lays down the rules with the help of which they are enforced. MBE Information. The Multistate Bar Examination (MBE) is a six-hour, multiple-choice-question exam, testing six areas of law..
The six areas are: Contracts, Constitutional Law, Criminal Law, Evidence, Real Property, and Torts. Contracts and Torts are . Let’s take a closer look at substantive law and procedural law and the difference between them.
What is Substantive Law? Traditionally, Substantive Law is defined as written or statutory law that creates, defines and regulates the rights, duties, liabilities, and obligations of citizens in a country. The Erie doctrine is a fundamental legal doctrine of civil procedure in the United States which mandates that a federal court sitting in diversity jurisdiction (or in general, when hearing state law claims in contexts like supplemental jurisdiction or adversarial proceedings in bankruptcy) must apply state substantive law to resolve claims under state law.
Nov 13, · Substantive law governs the rights and duties of everyone within the jurisdiction of the state, while procedural law regulates the flow of legal cases, along with the steps in processing a case. Secondly, substantive law focuses on the substance of a case, while procedural law ensures the observance of due process/10(2).