## Facts

- Edward M. Cooperman, a New York attorney, used three written “special nonrefundable retainer” agreements requiring advance payment that purported to be nonrefundable regardless of work performed.
- In a criminal matter, the agreement set a $15,000 minimum fee “not refundable for any reason whatsoever” once he filed a notice of appearance; the client discharged him about a month later and he refused any refund.
- In a probate matter, the agreement required a $5,000 “minimal” and “non-refundable” fee, nonrefundable even if the client discontinued services; when discharged, he refused both an itemized bill and any refund.
- In a second criminal matter, the agreement set a $10,000 “minimum fee” for representation “to any extent whatsoever,” treated as nonrefundable even if discharged; he again refused any return of funds.
- The Grievance Committee charged Cooperman with 15 specifications of misconduct arising from these agreements.
- Before and during the events, the Committee issued two Letters of Caution warning him not to use nonrefundable retainer agreements; he continued using them and insisted the fees were nonrefundable.

## Issues

1. Whether “special nonrefundable” minimum-fee retainers for specific future services violate the New York Code of Professional Responsibility and public policy.
2. Whether such agreements impermissibly burden a client’s absolute right to discharge counsel and obtain return of unearned fees.
3. Whether a two-year suspension was an appropriate sanction for repeated use of these agreements and refusal to refund funds after discharge.

## Decision

- The Court of Appeals affirmed the Appellate Division’s determination that the agreements were per se violative of public policy and unethical.
- The court held the “special nonrefundable” retainer provisions were unenforceable because they penalize discharge and impede refund of unearned fees.
- The court affirmed Cooperman’s two-year suspension from the practice of law.

## Legal Principles

- A client has an absolute right to terminate the attorney-client relationship at any time, with or without cause; fee arrangements may not inhibit, chill, or penalize that right.
- Fees paid for future, specific legal services remain subject to refund to the extent unearned; an agreement declaring such fees nonrefundable regardless of services conflicts with professional responsibility rules governing reasonableness and withdrawal.
- A true general retainer paid to secure availability (or to prevent representation of an adversary) may be earned upon receipt if that is its genuine purpose; a “nonrefundable” fee tied to performance of particular services is not.
- Because the attorney-client relationship is fiduciary and regulated in the public interest, courts may deem certain fee contracts void as against public policy where they create unacceptable risk of overreaching.
- Repeated use of prohibited fee agreements, especially after explicit warnings, supports substantial discipline.

## Conclusion

The court held that advance “nonrefundable” minimum fees tied to future legal services are void and unethical because they deter clients from discharging counsel and obstruct return of unearned fees, and it sustained a two-year suspension for persistent use of such agreements despite prior cautions.


In re Cooperman, 83 N.Y.2d 465 (N.Y. 1994)