If you were to ask a group of lawyers to name an ethical rule that applies to billing for fees, I would suspect at least 90% would name Rule 1.5 Fees – probably because it is the only ethical rule that has the word “fees” in the title!
Now ask those same lawyers to name other ethical rules that may also apply to fee billing and you would probably get mostly puzzled looks. For based upon my own experience in counseling scores of lawyers over the years on ethical issues involved in fee billing, I doubt that 1 in 100 lawyers could correctly name another ethical rule, let alone several other ethical rules, that might also apply to their billing for fees and costs.
So what are the other attorney ethical rules that apply to billing for fees and costs? Most can be found in ABA Standing Comm. On Ethics and Prof. Resp., Formal Op. 93-379 (1993) “Billing for Professional Fees, Disbursements and Other Costs.” At page 4 of this opinion is a discussion of the various RPCs that may be implicated in legal billing. They include among others,
- Rule 1.1 Competence
- Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer
- Rule 1.3 Dilligence
- Rule 1.4 Communication
- Rule 1.5 Fees
- Rule 3.2 Expediting Litigation
- Rule 7.1 Conflict of Interest: Current Clients
Now that is a lot of rules! Yet as the ABA Opinion notes, other ethical rules also could be implicated in a particular billing matter. Moreover, in my review of disciplinary cases involving attorneys for fee billing irregularities, violations of multiple ethical rules are quite common in those cases. See, e.g., In Re Zirkle, 911 N.E.2d 572 (Ind. 2009).
Over the course of the next several blog posts, I will go over those ethical rules that have the most impact on billing for fees and costs by lawyers. In reading these posts, you may be surprised to learn that your lawyer may have improperly billed you for certain things.
But do not feel bad if you already have paid for those improperly billed things. This is because fees paid for improperly billed things are treated the same as unearned fees or an overpayment of fees and lawyers are obligated to return any unearned fees or any overpayment of fees at the end of a representation. See ABA Annotated Rules of Prof. Conduct (7th ed. 2011) Comments to Rule 1.16(d) at p. 265. Just another one of those darn ethical rule that attorneys must comply with when it comes to billing for fees and costs!