* Professor of Law, University of Cincinnati College of Law. B.A., Wesleyan University; J.D., Michigan Law School; LL.M., Yale Law School. E-mail: gchin@aya.yale.edu. Anthony Alfieri, William Becker, Darryl Brown, Graeme Dinwoodie, Christine Galbraith, James Gardner, Geoffrey Hazard, William Hodes, Lonny Hoffman, Judith Maute, S. Elizabeth Molloy, Donna Nagy and Wendy Parker provided useful comments, reactions, and advice as did the faculties of the University of Akron Law Center, the University of Cincinnati College of Law and the Dickinson School of Law at Pennsylvania State University who graciously discussed this paper at faculty workshops. Thanks also to Laurence Fordham, Laurence Johnson, John Leubsdorf and Arnold R. Rosenfeld, each of whom participated in a case discussed in this Article, for sharing their views. Finally, thanks to the staff of the Marx Law Library at the University of Cincinnati.
** LL.M. Candidate, New York University School of Law. B.S., University of Connecticut; J.D., Western New England College School of Law.
1 See infra notes 130–210 and accompanying text.
2 See infra notes 38–73 and accompanying text.
3 See infra notes 18–37 and accompanying text.
4 See infra notes 130–272 and accompanying text.
5 See infra notes 38–73 and accompanying text.
6 See infra notes 74–99 and accompanying text.
7 See infra notes 100–17 and accompanying text.
8 See, e.g., Brigid McMenamin, The Best-Paid Lawyers, Forbes, Nov. 6, 1995, at 145; John E. Morris, The British Are Gaining, Am. Law., Nov. 1998, at 14 (listing top 25 firms by annual profits per partner, ranging from $2.2 million to $780,000); see also Lisa G. Lerman, Blue-Chip Bilking: Regulation of Billing and Expense Fraud by Lawyers, 12 GEO. J. LEGAL ETHICS 205, 219 (1999) (“Financial success has become the dominant value for many lawyers. . . . Preoccupation with profit is most intense in some of the most respected law firms in the United States.”); Judith L. Maute, Balanced Lives in a Stressful Profession: An Impossible Dream?, 21 CAP. U. L. REV. 797, 798 (1992) (noting, but criticizing, “the current view which typically measures success by income”).
9 See infra note 130 and accompanying text.
10 See infra notes 131–272 and accompanying text.
11 See infra notes 211–16 and accompanying text.
12 See infra notes 217–72 and accompanying text.
13 See infra notes 273–317 and accompanying text.
14 See infra notes 274–75 and accompanying text.
15 See infra notes 274–81 and accompanying text.
16 See infra notes 282–87 and accompanying text.
17 See infra notes 318–34 and accompanying text.
18 Given the “[h]undreds, if not thousands, of decisions from disciplinary panels and courts” dealing with excessive fees, there may be some such cases out there, but the authors could find none. Lawyers Manual on Professional Conduct (ABA/BNA) § 41:314 (1994) [hereinafter Lawyers Manual]; see, e.g., Dale R. Agthe, Annotation, Attorneys Charging Excessive Fee as Ground for Disciplinary Action, 11 A.L.R.4th 133 (1981) (citing hundreds of cases). Some cases, such as Florida Bar v. Moriber, 314 So. 2d 145, 149 (Fla. 1975), state in dicta that an attorney can be disciplined for charging an excessive fee, even in absence of fraud or dishonesty, when some sort of affirmative misconduct is involved. Other cases offer too few details to state definitively whether they impose discipline based solely on the size of the fee. See, e.g., In re Isaacs, 541 N.Y.S.2d 60 (App. Div. 1989); Private Reprimand No. PR–87–14, 5 Mass. Att’y Disc. Rep. 501, 502 (1987); In re Discipline of an Att’y, 2 Mass. Att’y Disc. Rep. 115, 117 (1980).
19 Charles W. Wolfram, Modern Legal Ethics 515 (student ed. 1986). Similarly, the Supreme Court of West Virginia surveyed a number of cases and concluded that “cases in which disciplinary sanctions were imposed for charging or collecting an illegal or clearly excessive attorney’s fee involve circumstances indicating the attorney’s bad faith or intent to evade a fee-limiting statute.” Committee on Legal Ethics of the W. Va. State Bar v. Coleman, 377 S.E.2d 485, 492 (W. Va. 1988); see also Agthe, supra note 18, at 139 (“Frequently, the charge against an attorney that he has violated a provision against the charging of excessive fees occurs in the context of other charges of professional misconduct. . . . Since courts at times administer discipline on a collection of charges . . . it is not always clear whether the charging of an excessive fee would, of itself, have resulted in the same discipline.” (citing Nebraska State Bar Ass’n v. Richards, 84 N.W.2d 136 (Neb. 1957))).
20 Professors Hazard and Hodes assert that “only a truly outrageous fee—one approaching fraud—was a matter for professional censure.” 1 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct § 1.5:201, at 111 & n.1 (2d ed. 1990 & Supp. 1998) (citing Florida Bar v. Winn, 208 So. 2d 809 (Fla. 1968) (holding fee excessive where attorney, in violation of a contract, claimed against sums he had no part in recovering)). Professor Rhode has observed that “[c]ourts are reluctant to second-guess fee agreements, and clients are likely to get relief only in egregious cases.” Deborah L. Rhode, Institutionalizing Ethics, 44 Case W. Res. L. Rev. 665, 714 (1994); see also Restatement of the Law Governing Lawyers § 46 cmt. at 157 (Proposed Final Draft No. 1 1996) [hereinafter Restatement](“In many jurisdictions, authorities have been reluctant to discipline lawyers” for charging unreasonably high fees.).
21 See 7 Am. Jur. 2d Attorneys at Law § 63 (1997).
22 See In re Kutner, 399 N.E.2d 963 (Ill. 1979); see also discussion infra Part II.B.
23 See, e.g., In re Burgess, 270 S.E.2d 436 (S.C. 1980) (involving multiple forms of misconduct, but the basis for the conclusion that the fee was unreasonable is not clear from the opinion).
24 See Tarver v. State Bar of Cal., 688 P.2d 911, 917–18 (Cal. 1984) (holding that in addition to other misconduct, the attorney claimed a fee that was illegal and “not supported by any written evidence of a fee agreement”); In re Giordano, 229 A.2d 524, 531 (N.J. 1967) (holding that, in addition to other misconduct, attorney charged his client an usurious rate of interest); Hudock v. Virginia State Bar, 355 S.E.2d 601, 603–04 (Va. 1987) (holding that attorney demanded fee in excess of that approved by government authority, in violation of statute).
25 See In re Struthers, 877 P.2d 789, 795–96 (Ariz. 1994) (concluding that, in addition to other misconduct, attorney took his share of a contingent fee based on total claim, not what was actually recovered, and improperly sought “double recovery of fees” by collecting both court awarded fees and a contingency fee); Florida Bar v. Hollander, 607 So. 2d 412, 415 (Fla. 1992) (disciplining attorney who terminated representation without cause and then attempted to “collect twice for the same work” by demanding both quantum meruit compensation and a percentage of any recovery by a new attorney); Kentucky Bar Ass’n v. Newberg, 839 S.W.2d 280, 280–81 (Ky. 1992) (censuring lawyer who collected contingent fee from government benefits, when representation was in connection with civil rights claim that resulted in no recovery).
26 See In re Kunkle, 218 N.W.2d 521, 535–36 (S.D. 1974) (concluding that, in addition to other misconduct, attorney delayed case by performing unnecessary work to claim greater fees).
27 See People v. Walker, 832 P.2d 935, 935–37 (Colo. 1992) (disciplining attorney for falsifying bills); In re Scimeca, 962 P.2d 1080, 1083 (Kan. 1998) (concluding that in addition to other misconduct, lawyer charged for work not done); In re Genser, 589 N.Y.S.2d 566, 567 (App. Div. 1992) (concluding that in addition to other misconduct, lawyer charged fee but “failed to perform any legal services on his client’s behalf”); Cleveland Bar Ass’n v. Character-Floyd, 699 N.E.2d 922, 923 (Ohio 1998) (concluding that in addition to other misconduct, lawyer’s time records failed to substantiate hours charged to client in matter which also had been neglected); State ex rel. Okla. Bar Ass’n v. Whiteley, 792 P.2d 1174, 1174–75 (Okla. 1990) (involving attorney who stipulated to discipline because, in addition to other misconduct, attorney failed to perform work on the matter for which he had accepted a fee); Office of Disciplinary Counsel v. Knepp, 441 A.2d 1197, 1198–99 (Pa. 1982) (concluding that in addition to other misconduct, attorney charged a substantial sum for representation in connection with an estate and then neglected the matter).
28 See Attorney Grievance Comm’n of Md. v. Korotki, 569 A.2d 1224, 1232 (Md. 1990) (involving attorney who demanded higher percentage of contingent recovery for handling appeals, when he was already obligated to handle appeals by original contract); In re Yacob, 860 P.2d 811, 814 (Or. 1993) (concluding that in addition to other misconduct, lawyer demanded additional payment for work covered by a flat fee, which had already been paid in full).
29 See Cushway v. State Bar, 170 S.E.2d 732, 733–34 (Ga. 1969) (concluding that in addition to other misconduct, lawyer unilaterally converted trust property to pay fees which had not been agreed upon); In re Gerard, 634 N.E.2d 51, 53–54 (Ind. 1994) (discplining attorney on a reciprocal basis for constructive fraud committed in Illinois, who failed to explain, in contingent fee case, that right to recovery was uncontested) (citing In re Gerard, 548 N.E.2d 1051 (Ill. 1989) (noting that attorney took more than the contractual one-third fee)); Committee on Legal Ethics of the W. Va. State Bar v. Tatterson, 352 S.E.2d 107, 114 (W. Va. 1986) (involving attorney who “misrepresented the difficulty in obtaining the life insurance proceeds” in order to induce client to agree to a contingent fee in what was in fact an uncontested matter).
30 See In re Vitko, 519 N.W.2d 206, 208 (Minn. 1994) (involving attorney who, in addition to other misconduct, deceived his client into making him trustee of irrevocable trust and then paid himself substantial fees from trust assets); In re Forester, 530 N.W.2d 375, 385—86 (Wis. 1995) (concluding that in addition to other misconduct, lawyers used their positions as trustees to insinuate themselves into the business in which the trust held stock and paid themselves large fees).
31 See State ex rel. Neb. State Bar Ass’n v. Holscher, 230 N.W.2d 75, 79 (Neb. 1975) (disciplining attorney under Disciplinary Rule (“DR”) DR 7–102(A)(5) for making false statement in connection with billing for services); Columbus Bar Ass’n v. Zauderer, 687 N.E.2d 410, 413 (Ohio 1997) (disciplining attorney for failing to maintain records of funds coming into his possession under DR 9–102(B)(3)); Cincinnati Bar Ass’n v. Nienaber, 628 N.E.2d 1340, 1341 (Ohio 1994) (disciplining attorney for billing client for personal vacation, which was a violation of DR 7–102(A)(5)).
32 Similarly, the ABA/BNA Lawyer’s Manual identifies six circumstances in which lawyers have been disciplined for charging excessive fees: accepting a contingent fee where there is in fact little risk, exceeding a statutory fee limit, refusing to return unearned fees or otherwise imposing a penalty on a client for exercising their right to fire an attorney, padding bills, failing to account for changed circumstances, and charging high fees relative to the value of the services provided. See Lawyers Manual, supra note 18, § 41:314–:317. All of the cases cited in the last category involved bad faith or other kinds of misconduct. See People v. Underhill, 708 P.2d 790, 790–91 (Colo. 1985) (concluding among other misconduct, attorney continued to represent client and collect excessive fee after suspension); Florida Bar v. Mirabole, 498 So. 2d 428, 429 (Fla. 1986) (holding $24,000 bill excessive where $3000 at stake); Korotki, 569 A.2d at 1232 (concluding attorney demanded compensation for work already obliged to perform); Mahoning County Bar Ass’n v. Pagak, 528 N.E.2d 948, 950 (Ohio 1988) (concluding that, in addition to other misconduct, attorney coercively demanded additional compensation based on changes in case that involved no extra work); Myers v. Virginia State Bar, 312 S.E.2d 286, 292 (Va. 1989) (concluding that in addition to other misconduct, attorney accepted fee in excess of that authorized by court and lied to client about it); West Va. State Bar Comm’n on Legal Ethics v. Gallaher, 376 S.E.2d 346, 348, 350 (W. Va. 1988) (holding 50% contingent fee excessive where there was no written agreement, fee was set unilaterally after settlement and the case settled without consultation with client).
The contingent fee line of cases could in principle also be regarded as a counterexample. They seem, however, to impose discipline not simply because the lawyers involved received a large recovery in relation to the work performed, but rather because the fee exceeded a percentage rule established by law, or because there was at least an implicit misleading of the client by failing to disclose, when establishing the fee, that there was in fact no contingency or that it was likely to be far cheaper to pay on an hourly basis. See supra note 29 and accompanying text. See also Florida Bar v. Moriber, 314 So. 2d 145, 145 (Fla. 1975) (concluding that the contingent fee was excessive where there was no contingency and asset at issue had passed to client by operation of law); Harmon v. Pugh, 248 S.E.2d 421 (N.C. Ct. App. 1978) (reducing contingent fee award but imposing no discipline); In re Stafford, 216 P.2d 746, 751–52 (Wash. 1950) (involving attorney who, among other misconduct, charged a 50% fee for arranging delivery of funds which different client had hired him to deliver).
33 One reason the American Jurisprudence cases appear to be representative is that in addition to the many discipline cases read, the members of the Legal Ethics law professors’ e-mail listserv were asked if they knew of any cases where a lawyer was disciplined solely for charging an excessive fee. The cases they identified in fact all involved additional forms of misconduct. See, e.g., State Florida Bar v. Winn, 208 So. 2d 809, 810 (Fla. 1968) (involving fee agreement giving attorney 50% of any sums he was “instrumental in recovering,” but attorney charged for sums which passed to client by operation of law without any effort on his part); In re Tuley, 907 P.2d 844 (Kan. 1995) (involving attorney who stipulated that he was guilty of charging unreasonable fee of $115,000 to settle estate and “admitted that he had no idea of the time he had spent during the affairs of this estate”); In re Simmonds, 415 N.W.2d 673, 674–75 (Minn. 1987) (concluding fee unreasonable where part of it was taken in violation of “social security regulations [requiring] governmental approval,” and part of expenses charged to client were used “to take a personal vacation”); Ex rel. Okla. Bar Ass’n v. Weeks, 969 P.2d 347 (Okla. 1998) (disciplining attorney/law professor for claiming both contingent fee and statutory fee award as provided by contract but in violation of federal law); Cushnie v. State Bar of Texas, 845 S.W.2d 358, 359–60 (Tex. Ct. App. 1992) (applying reciprocal discipline in case where attorney consented to discipline in the Northern Marianas Islands for quintupling his fee to $2500 per hour after victory when client had not agreed in writing to contingent fee); In re Bult, 469 N.W.2d 653, 654 (Wis. 1991) (disciplining attorney for charging $5775 in connection with sale of home which netted $9800 where attorney failed to present time records justifying charges to the client or disciplinary board).
34 See Wolfram, supra note 19, at 513; Cassandra M. Neely, Case Comment, Excessive Fees and Attorney Discipline: The Committee on Legal Ethics v. Tatterson, 90 W. Va. L. Rev. 562, 562–63 (1987/1988); Daniel Wise & Charles F. De Jager, Prices, Quality Irk General Counsels: Report of Survey on Outside Lawyers, 210 N.Y. L.J. 1 (1993).
35 Special Comm. on Resolution of Fee Disputes of the Section of Bar Activities, American Bar Ass’n, The Resolution of Fee Disputes: A Report and Model Bylaws 1 (undated). See also Oklahoma Turnpike Auth. v. New Life Pentecostal Church, 870 P.2d 762, 768 n.23 (Okla. 1994) (“No single area of attorney conduct is more susceptible to public scrutiny and criticism than a lawyer’s fee contract.”); Richard C. Reed, Foreword to Beyond the Billable Hour: An Anthology of Alternative Billing Methods at iii (Richard C. Reed ed., 1989) (indicating the existence of dissatisfaction by clients regarding hourly billing); Sonia S. Chan, Note, ABA Formal Opinion 93–379: Double Billing, Padding and Other Forms of Overbilling, 9 Geo. J. Legal Ethics 611, 612 (1996) (same); Neely, supra note 34, at 562. But see Alan Scott Rau, Resolving Disputes Over Attorneys’ Fees: The Role of ADR, 46 SMU L. Rev. 2005, 2005 (1993) (asserting that there is little reliable information on the existence or frequency of fee disputes).
36 See Chan, supra note 35, at 612. In fact, it seems that the public’s perception of lawyers as unethical is based in part on the billing practices of some of the members of the legal profession. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 379 (1993).
37 In one famous instance, lawyers at an elite firm working on a very large commercial matter were paid $20 million for two weeks work, a minimum of $5000 per lawyer per hour. See Stephen J. Adler & Laurie P. Cohen, Even Lawyers Gasp Over Stiff Fees of Wachtell Lipton, Wall St. J., Nov. 2, 1988, available in 1988 WL WSJ 453233.
38 The ABA Canons of Professional Ethics of 1908 informed the development of the common law to some degree. See Canons of Professional Ethics (1908). Canon 12 suggested that fees be neither too high nor too low, and gave some factors for evaluating fees. See id. Canon 12. Perhaps because the Canons were so vague, and not so widely adopted as positive law as later codes, the Canons seem not to have been the dominant source of law with respect to attorneys’ fees, at least in the disciplinary context.
39 People ex rel. Chicago Bar Ass’n v. Pio, 139 N.E. 45, 47 (Ill. 1923).
40 Goldstone v. State Bar, 6 P.2d 513, 516 (Cal. 1931).
41 As one commentator explained, at common law, “[a] number of cases have recognized that an excessive fee is not enough, in the absence of other factors, to warrant disciplinary action against an attorney, some of the cases also recognizing, however, that where a fee is so clearly excessive in comparison to the services rendered that it could not have been charged in good faith, discipline will be warranted.” H.H. Henry, Annotation, Amount or Character of Compensation as Ground for Disciplinary Action Against Attorney, 70 A.L.R.2d 962, 965 (1960). See also, e.g., In re Myrland, 284 P.2d 56, 60 (Ariz. 1939) (holding that fee must be so excessive and unconscionable as to indicate bad faith); Herrscher v. State Bar, 49 P.2d 832, 833–34 (Cal. 1935) (concluding claim of excessiveness of fee alone not sufficient in disciplinary proceeding absent failure of disclosure, fraud or overreaching); Grievance Comm. v. Ennis, 80 A. 767, 770 (Conn. 1911) (holding fee not excessive if it is not “extortionate” by way of oppression or illegality); In re Annabel, 229 N.Y.S. 385, 386 (App. Div. 1928) (per curiam) (noting that fees must be unconscionable, tantamount to a misappropriation of client funds); In re Greer, 380 P.2d 482, 486 (Wash. 1963) (en banc) (concluding question of “reasonableness” of fee appropriate matter for civil court and question of “unconscionability” of fee appropriate matter for disciplinary proceeding), overruled by In re Boelter, 985 P.2d 328, 336 (Wash. 1999); In re Wiltsie, 186 P. 848, 848 (Wash. 1920) (reasoning that because the “question [of the propriety of fees] is so much a matter of individual opinion . . . it should not be the basis for disbarment except in the most aggravated and extreme case”); ABA Comm. on Professional Ethics, Formal Op. 320 (1968) (“An attorney has the right to contract for any fee he chooses so long as it is not excessive (see Opinion 190), and this Committee is not concerned with the amount of such fees unless so excessive as to constitute a misappropriation of the client’s funds (see Opinion 27).”); ABA Comm. on Professional Ethics and Grievances, Formal Op. 209 (1940); ABA Comm. on Professional Ethics and Grievances, Formal Op. 190 (1939); ABA Comm. on Professional Ethics and Grievances, Formal Op. 27 (1930); Henry S. Drinker, Legal Ethics 174 (1953) (“There is no ethical question involved unless fees are flagrantly excessive. . . .”); 1 Hazard & Hodes, supra note 20, § 1.5:201, at 111 (indicating that before the adoption of the Model Code, only outrageous fees, approaching fraud, were appropriate for censure); Neely, supra note 34, at 566. Some jurisdictions apparently continue to follow this approach. See, e.g., California Rules of Professional Conduct Rule 4–200(B)(2) (1992) (forbidding “unconscionable fees”); Texas Disciplinary Rules of Professional Conduct Rule 1.04(a) (1991) (an attorney must not charge or collect an excessive or “unconscionable fee”; a fee is unconscionable if, after reviewing all the facts, a competent lawyer could not form the belief that the fee is reasonable); Committee on Legal Ethics of the W. Va. State Bar v. Coleman, 377 S.E.2d 485, 492 (W. Va. 1988) (good faith in setting fee not appropriate for sanction).
42 See 380 P.2d at 487.
43 See id.
44 See id. at 485.
45 522 P.2d 312 (Cal. 1974).
46 See id. at 313.
47 See id.
48 See id.
49 See id. at 313–14.
50 See Bushman, 522 P.2d at 314.
51 See id.
52 See id.
53 Id.
54 Id. at 315.
55 Bushman, 522 P.2d at 315.
56 Id. at 315.
57 See id. at 315–16.
58 See, e.g., McKenzie Constr., Inc. v. Maynard, 758 F.2d 97, 100–01 (3d Cir. 1985). The court in McKenzie noted that “[t]he ethical rules spring from the belief that certain kinds of behavior cannot be tolerated by a society of professionals.” Id. Thus, under the language of DR 2–106(B), the court determined that it may often be unfair to sanction an attorney for an objectively “unreasonable” fee which is not “clearly excessive.” See id. at 101. In contrast, matters involving the civil enforcement of fees “should [not] be based on as stringent a showing,” rather, according to the court, should be determined under an “equity and fairness” standard. See id.; cf. United States v. Strawser, 581 F. Supp. 875, 877 (C.D. Ill. 1984) (finding $47,500 fee for negotiating two fairly simple guilty pleas to drug charges was excessive considering, inter alia, that attorney possessed no extraordinary ability and in fact rendered average services), aff’d, 800 F.2d 704 (7th Cir. 1986).
59 Restatement, supra note 20, § 46 cmt. at 157–58; see also Kansas Rules of Professional Conduct Rule 1.5(c) (“A lawyer’s fee shall be reasonable but a court determination that a fee is not reasonable shall not be presumptive evidence of a violation that requires discipline of the attorney.”); American Bar Foundation, Annotated Code of Professional Responsibility Canon 2 cmt. at 101 (1979) (“Generally, . . . even a finding that a lawyer has charged an excessive fee does not, in itself, warrant disciplinary action. Other elements of wrongdoing (overreaching, appropriation of the client’s funds under the guise of charging a fee, and so forth) have to be present.”) (citing 1 Stuart M. Speiser, Attorney’s Fees § 1.37 (1973)).
60 The ABA Model Code of Professional Responsibility, adopted in 1969, replaced the Canons. The ABA Special Committee on Evaluation of Ethical Standards, appointed in August of 1964, recognized a need for change in the Canons’ statements of what constituted professional responsibility:
The present Canons are not an effective teaching instrument and they fail to give guidance to young lawyers beyond the language of the Canons themselves. There is no organized interrelationship of the Canons and they often overlap. They are not cast in language designed for disciplinary enforcement and many abound with quaint expressions of the past.
Model Code of Professional Responsibility at vi (Preliminary Draft 1969).
The Model Code incorporates the substance of the provisions of the Canons, and consists of three separate parts: Canons, Ethical Considerations, and Disciplinary Rules. See 1 Robert L. Rossi, Attorneys’ Fees § 1:18, at 53 n.78 (2d ed. 1995); Speiser, supra note 59, § 1:36, at 49 n.5. Speiser notes that:
The Canons are statements of axiomatic norms, expressing in general terms the standards of professional conduct expected of lawyers in their relationships with the public, with the legal system, and with the legal profession. The Ethical Considerations are aspirational in character, and represent the objectives toward which every member of the profession should strive. The Disciplinary Rules are mandatory in character, and state the lowest level of conduct, below which no lawyer can fall without being subject to disciplinary action.
Speiser, supra note 59, § 1:36, at 49 n.5; see also Model Code of Professional Responsibility preliminary statement (1980). For an exhaustive treatment of the history, purposes and functions of lawyer codes in the United States, see Wolfram, supra note 19, at 48–63.
61 On August 2, 1983, the ABA House of Delegates adopted the Model Rules, which replaced the separate parts of the Model Code with a single set of rules. See Rossi, supra note 60, § 1:18, at 53 n.79. By 1972, a vast majority of jurisdictions had adopted the Model Code. See Speiser, supra note 59, § 1:36, at 49 n.5. After the ABA replaced the Model Code with the Model Rules, most jurisdictions adopted the latter. To date, at least 40 jurisdictions have adopted the Model Rules in whole or in part, including Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawai’i, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Texas, Utah, Washington, West Virginia, Wisconsin and Wyoming. See 2 Hazard & Hodes, supra note 20, § AP4:107, at 1269; Michael Sacksteder, Note, Formal Opinion 95–390 of the ABA’s Ethics Committee: Corporate Clients, Conflicts of Interest, and Keeping the Lid on Pandora’s Box, 91 Nw. U. L. Rev. 741, 745 n.12 (1997). Although New York, Oregon and Virginia have retained amended versions of the Model Code, their versions incorporate several portions of the Model Rules. See id. at 745 n.13. In addition, Illinois and North Carolina incorporate substance of both the Model Code and Model Rules. See id. California’s rules of professional conduct do not rely on the Model Code or the Model Rules. See id.
62 See Model Code of Professional Responsibility DR 2–106 (1980); Model Rules of Professional Conduct Rule 1.5 (1983). See also ABA Comm. on Ethics and Professional Responsibility, Formal Op. 379 (1993) (“Implicit in the Model Rules and their antecedents is the notion that the attorney-client relationship is not necessarily one of equals, that it is built on trust, and that the client is encouraged to be dependent on the lawyer . . . .”).
63 Model Code of Professional Responsibility DR 2–106(A) (1980).
64 Id. DR 2–106(B).
65 Id. DR 2–106(A) at n.88.
66 This, however, may not be the case; the footnotes are not necessarily authoritative interpretations of the Code. See Model Code of Professional Responsibility Preamble at n.1 (1980). Nevertheless, there is no hint that the Model Code intended to break with the past, and the similarities in terms suggest continuity. For example, DR 2–106 prohibits “clearly excessive” fees; the footnote cites a common-law case which also uses the “clearly excessive” standard. See id. DR–106(A) at n.88 (citing State ex rel. Nebraska State Bar Ass’n v. Richards, 84 N.W.2d 136, 143 (Neb. 1957)). Moreover, in opinions applying the Model Code, the ABA continued to cite common-law authority. See, e.g., ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1461 (1980) (relying on Formal Op. 27 (1930)).
67 See Model Rules of Professional Conduct Rule 1.5(a) (1983).
68 Compare Model Code of Professional Responsibility DR 2–106(A) (1980) with Model Rules of Professional Conduct Rule 1.5(a) (1983).
69 See In re Dorothy, 605 N.W.2d 493, 499 (S.D. 2000) (“Under Rule 1.5, the benchmark for triggering judicial review of fees has been lowered and its scope broadened . . . . Thus, for disciplinary action to be imposed, it is now only necessary that a fee be unreasonable in proportion to the services performed.”); Geoffrey C. Hazard, Jr. & W. William Hodes, A Look at the Ethical Rules; Fee Shifting in the Federal Courts, in Beyond the Billable Hour, supra note 35, at 123, 124; see also ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1509 (1984) (indicating that the intent in changing the language from the Model Code’s “clearly excessive” standard to the Model Rules’ test of reasonableness was “to impose a stricter standard on lawyers who would charge too much”). But see Rhode, supra note 20, at 714 (asserting that the change in terminology from the Model Code to the Model Rules has not had a significant impact upon the outcomes of reported cases).
70 See Model Code of Professional Responsibility DR 2–106(B) (1980) (emphasis added).
71 It is a common presumption when interpreting statutes that a change in language implies a change in the meaning. See United States v. Wilson, 503 U.S. 329, 336 (1992) (noting “the familiar maxim that, when Congress alters the words of a statute, it must intend to change the statute’s meaning”) (citing Russello v. United States, 464 U.S. 16, 23–24 (1983)).
72 See Model Code of Professional Responsibility DR 2–106(A), (B) (1980).
73 See, e.g., In re Gerard, 634 N.E.2d 51, 53 n.5 (Ind. 1994) (noting that the Indiana version of DR 2–105 “contains virtually identical provisions” as the Indiana version of MR 1.5 which replaced it). See Holmes v. SIPC, 503 U.S. 258, 268 (1992) (“we can only assume [Congress] intended [words] to have the same meaning that courts have already given them”); Jeffers v. United States, 432 U.S. 137, 150 n.14 (1977) (“When the phrase ‘in concert’ has been used in other statutes, it has generally connoted cooperative action and agreement. [citations omitted] This suggests that Congress intended the same words to have the same meaning [in the statute in question].”); Anderson v. Pacific Coast S.S. Co., 225 U.S. 187, 199 (1912) (“it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed”).
74 See Model Rules of Professional Conduct Rule 1.5(a) (1983); Model Code of Professional Responsibility DR 2–106(B) (1980); Canons of Professional Ethics Canon 12 (1908).
75 Model Rules of Professional Conduct Rule 1.5(a)(1)–(8) (1983); Model Code of Professional Responsibility DR 2–106(B)(1)–(8) (1980).
76 See, e.g., General Motors Corp. v. Cox, 304 A.2d 55, 57 (Del. 1973); State ex rel. Hodge v. Town of Turtle Lake, 526 N.W.2d 784, 787 (Wis. 1994); see generally Wolfram, supra note 19, at 521.
77 See Ryan v. Butera, Beausang, Cohen & Brennan, 193 F.3d 210, 218 (3d Cir. 1999) (upholding non-refundable one million dollar fee, even though attorneys discharged after ten weeks because “the fact that the client[] received some intangible benefits [i.e., having counsel of choice available] in retaining the attorneys meant that the [district court] could conclude that the compensation . . . was not so high as to be inequitable and unfair”); Ackermann v. Levine, 788 F.2d 830, 843 (2d Cir. 1986); Puerto Rico v. Heckler, 745 F.2d 709, 338 (D.C. Cir. 1984) (Ginsburg, J.) (stating that the”[i]ndicia of overall reasonableness [of the fee include that party was] a sophisticated client”); Shapiro, Lifschitz & Schram v. R.E. Hazard, Jr., 24 F. Supp. 2d 66, 77 (D.D.C. 1998) (finding that as a matter of law, fees were not unreasonable because clients were “sophisticated commercial parties who could have retained any firm” and no claim of fraud or duress was made); Alexander v. Inman, 974 S.W.2d 689, 694 (Tenn. 1998) (listing client sophistication as a factor); Bohatch v. Butler & Binion, 977 S.W.2d 543, 554 (Tex. 1998) (finding that “[a] fee that a client as sophisticated as Pennzoil considers reasonable is not clearly excessive simply because a lawyer believes it could have been less”); Restatement, supra note 20, § 46 cmt. at 160 (“Fees agreed to by clients sophisticated in entering into such arrangements . . . should almost invariably be found reasonable.”); Wolfram, supra note 19, at 520 (“If the client is a large corporation and is represented in setting the fee by independent counsel who is protecting the corporation’s interests, it is doubtful that any fee negotiated and agreed to by the client, no matter how large, would be considered excessive.”) (citing Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866 (9th Cir. 1979)).
78 There are instances when decisionmakers have no choice but to calculate an appropriate fee, including calculating a quantum meruit or statutory fee award, or when approval of a fee is required by law, as in a class action settlement. See, e.g., Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998) (concluding that when awarding fees pursuant to statute, “the object is to simulate the market where a direct market determination is infeasible”) (quoting In re Continental Ill. Sec. Litig., 962 F.2d 566, 572 (7th Cir. 1992)); see also In re Hillsborough Holdings Corp., 127 F.3d 1398, 1404 (11th Cir. 1997). These situations are difficult and challenging, but they require the decision maker to calculate a reasonable fee, not the entire range of reasonable fees.
79 See Robert H. Aronson, Attorney-Client Fee Arrangements: Regulation and Review 7 (1980). Professor Aronson asserts that legal representation will often be “priceless” to the client receiving the benefit of the services. See id. For example, can the value of an acquittal on criminal charges be measured? If loss of liberty through incarceration was at stake, a very strong argument could be made that the value of good legal representation contributing to the preservation of such liberty is in fact priceless. See id. At the very least, depending upon the personal importance of legal representation to the client, the services will have a different value for some clients than for others. See id. One of the components of legal representation is the lawyer’s ability to provide the client access to “justice.” According to Professor Aronson, “the nonmonetary nature of ‘justice’ may preclude accurate valuation of lawyers’ services.” Id. Moreover, pursuant to the concept of res judicata, each individual lawsuit is perceived to be unique, further complicating the goal of accurate valuation of the services contributed to that lawsuit. See id.
80 See Hazard & Hodes, supra note 69, at 124. Professors Hazard and Hodes assert that under the Model Code, the eight factors are “not objective determinates but subjective factors.” Id. Also, Professor Wolfram notes that the Model Code factors are indeterminate. See Wolfram, supra note 19, at 517. The ABA itself has acknowledged that DR 2–106 “does not prescribe the manner in which those factors are to be applied.” ABA Comm. on Ethics and Professional Responsibility, Formal Op. 329 (1972); see also William G. Ross, The Honest Hour: The Ethics of Time-Based Billing by Attorneys 40 (1996) (stating factors provide “only an amorphous outline for measuring the reasonableness of a fee”); Roy D. Simon, Jr. & Murray L. Schwartz, Lawyers and the Legal Profession 549 (3d ed. 1994) (“In short, the factors seem to be overlapping, and basically say you can charge what the market will bear.”); Stephen Gillers, Caveat Client: How the Proposed Final Draft of the Restatement of the Law Governing Lawyers Fails to Protect Unsophisticated Consumers in Fee Agreements with Lawyers, 10 Geo. J. Legal Ethics 581, 600 (1997) (“Reasonableness is a remarkably elastic concept.”); John J. Marquess, Legal Audits and Dishonest Legal Bills, 22 Hofstra L. Rev. 637, 638 (1994) (calling factors “nonsense” that do not tell the lawyer “anything”); Lee A. Watson, Note, Communication, Honesty, and Contract: Three Buzzwords for Maintaining Ethical Hourly Billing, 11 Geo. J. Legal Ethics 189, 197 (1998) (stating ethical codes “require reasonable billing but fail to offer a definition for reasonableness”).
81 See Geoffrey C. Hazard, Jr., Ethics in the Practice of Law 97 (1978); see also Annotated Code of Professional Responsibility Canon 2 cmt. at 101 (1979) (“The implication appears to be that a consideration of the guides will lead a lawyer to formulate reasonable fees. The wording of the text, however, denies this. . . . [T]he Code . . . did not proscribe any reasonable application of the factors that were to be considered as guides in the setting of fees.”).
82 Wolfram, supra note 19, at 516; see also Aronson, supra note 79, at 3 (“[T]he nature of the lawyer’s product and the bar’s perception of its role in society combine to make rational valuation of the individual attorney’s services practically impossible.”); Jethro K. Lieberman, Crisis at the Bar 108 (1978) (stating that EC 2–17 contains the only discussion of the propriety of fees in the Ethical Considerations, and it is too general; DR 2–106 is also of little help); Ross, supra note 80, at 39, 40 (observing that because the Model Rules do not specifically address time-based billing, many lawyers faced with ethical concerns in this area may consult other attorneys rather than the Model Rules); Jeffrey L. Tolman, Learning From How Others Bill, in Beyond the Billable Hour, supra note 35, at 69 (suggesting that determining what constitutes a “fair and reasonable bill is the second most difficult aspect of practicing law,” and that “[c]ollecting the bill is the first”); Neely, supra note 34, at 563 (concluding that case law, ethical canons, and disciplinary rules are unproductive in determining excessiveness of fees); see generally Steven R. Salbu, Law and Conformity, Ethics and Conflict: The Trouble with Law-Based Conceptions of Ethics, 68 Ind. L.J. 101, 102 (1992) (“Codes of ethics provide a sadly diluted notion of what ethics entails, how ethical decisions are made, and the nature and degree of individual responsibility involved in the process of examining one’s choices.”).
83 See, e.g., Florida Bar v. Moriber, 314 So. 2d 145, 148 (Fla. 1975) (“Few, if any, areas of attorney discipline are as subject to differing interpretations as the matter of what constitutes an excessive attorney’s fee.”); State ex rel. Lee v. Buchanan, 191 So. 2d 33 (Fla. 1966) (holding that statute criminalizing “unreasonable” attorney’s fees in adoption cases is unconstitutionally vague); Aronson, supra note 79, at 12, 15 (asserting that “the standard of ‘reasonableness’ used by the courts suffers from the imprecision of ‘proximate cause’ and ‘prudent person’ that often results in tort cases standing on their own facts and the [juries’] moods” and “virtually no case law has developed interpreting” DR 2–106).
84 Aronson, supra note 79, at 35.
85 See Goldfarb v. Virginia State Bar, 421 U.S. 773, 791–93 (1975) (stating fee schedule promulgated by local bar association constituted illegal price fixing).
86 See, e.g., Lester Brickman, Contingency Fee Abuses, Ethical Mandates, and the Disciplinary System: The Case Against Case-By-Case Enforcement, 53 Wash. & Lee L. Rev. 1339, 1353 (1996) (noting that rules can justify common but unfair practice of charging excessive contingent fee); Gillers, supra note 80, at 596 (“The fee can . . . be higher than a strictly economic calculation of market value because the market may support fees based on client ignorance.”).
87 This assumes a single factor can be outcome determinative in at least some cases. If it cannot, however, then it is not really a factor at all.
88 Aronson, supra note 79, at 42.
89 Id.
90 Wolfram, supra note 19, at 520.
91 See Aronson, supra note 79, at 44.
92 Id.
93 See, e.g., Model Rules of Professional Conduct Preamble (noting that “difficult issues of professional discretion can arise,” which must be resolved through “exercise of sensitive professional and moral judgment” and that “compliance with the Rules, as with all law in an open society, depends primarily on understanding and voluntary compliance”).
94 See Hazard, supra note 81, at 101 (“A lawyer conceives of himself as worth a good wage.”). See also 1 Timothy 5:18 (“The laborer is worthy of his reward.”); Luke 10:7 (similar).
95 See Model Rules of Professional Conduct Preamble (“[A]ssessment of a lawyer’s conduct will be made on the basis of the facts and circumstances as they existed at the time of the conduct in question.”).
96 See Model Rules of Professional Conduct Rule 1.5(D)(2) (1983); Model Code of Professional Responsibility DR 2–106(C) (1980). In addition, the process of setting attorneys’ fees in criminal matters is different than the process of setting fees in noncriminal matters. See John Wesley Hall, Jr., Professional Responsibility of the Criminal Lawyer § 7:1, at 152 (2d ed. 1996). Rarely do noncriminal practitioners understand the peculiarities of setting fees in the criminal setting. Fees for representation in criminal cases might legitimately exceed fees for representation in civil cases for several reasons. See id. First, the amount of “downtime” (e.g., waiting in court, waiting for hearings, etc.) for criminal defense lawyers is higher than for noncriminal attorneys. See id. Second, criminal lawyers must spend more time investigating and contemplating the adversary’s case. See id. Finally, criminal defense lawyers deal in higher stakes than noncriminal lawyers, including loss of liberty, or even loss of life. See id.
97 Restatement, supra note 20, § 46, cmt. at 159–60.
98 See Aronson, supra note 79, at 56 (“Examination of these individual components of service valuation shows that often their validity and value depend on whether worth is determined from the attorney’s or the client’s perspective, and that reliance on one type of criteria may restrict or eliminate meaningful examination of another.”).
99 See Annotated Code of Professional Responsibility 101–02, 104–05 (1979) (quoting ABA Comm. on Professional Ethics and Grievances, Formal Op. 27 (1930)).
100 See, e.g., Model Rules of Professional Conduct Preamble (1983).
101 See, e.g., In re Smith, 572 N.E.2d 1280, 1288 (Ind. 1991); Aronson, supra note 79, at 6.
102 Model Code of Professional Responsibility EC 2–17 (1980).
103 Moreover, since lawyers are free to deprive individuals of their services by refusing to work for them, or by practicing a specialty like environmental law, which may not be useful to most individuals, or by leaving the profession entirely, it is hard to see why lawyers should not be equally free to withhold their services through price.
104 Model Code of Professional Responsibility EC 8–3 (1980).
105 See Model Rules of Professional Conduct Rule 6.1 (1983).
106 See id. Rule 1.5; Model Code of Professional Responsibility DR 2–106 (1980).
107 Restatement, supra note 20, § 46, cmt. at 158.
108 Id. at 157.
109 See Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975); Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379, 383 (1963); Cohen v. Hurley, 366 U.S. 117, 123–24 (1961), overruled on other grounds by Spevack v. Klein, 385 U.S. 511, 513 (1967); In re Smith, 572 N.E.2d 1280, 1288 (Ind. 1991).
110 See Smith, 572 N.E.2d at 1288; Louisiana State Bar Ass’n v. Pugh, 508 So. 2d 1350, 1355 (La. 1987); In re Hansen, 586 P.2d 413, 415 (Utah 1978).
111 See Aronson, supra note 79, at 5.
112 Model Rules of Professional Conduct Rule 1.5 cmt. (1983).
113 Id. The Model Code also contains many statements suggesting that the purpose of the reasonable fee rules is disclosure, in order to prevent overreaching. For example, EC 2–19 explains that a lawyer should
reach a clear agreement with his client as to the basis of the fee charges to be made. Such a course will not only prevent later misunderstanding but will also work for good relations between the lawyer and the client. It is usually beneficial to reduce to writing the understanding of the parties regarding the fee. . . . A lawyer should be mindful that many persons . . . may have had little or no experience with fee charges or lawyers, and for this reason he should explain fully . . . the reasons for the particular fee arrangement . . . .
Model Code of Professional Responsibility EC 2–19 (1980).
Similarly, EC 2–20 states that a contingent fee is permissible where a “client who, after being fully informed of all relevant factors, desires that arrangement.” Id. EC 2–20; see also id. EC 2–17 (“an excessive charge abuses the professional relationship between lawyer and client”).
114 Restatement, supra note 20, § 46, cmt. at 158 (emphasis added).
115 The Texas disciplinary rules prohibit unconscionable fees, measure fairness from the time the contact was made and evaluate unconscionability by two important factors: “The first is overreaching by a lawyer, particularly of a client who was unusually susceptible to such overreaching. The second is a failure of the lawyer to give at the outset a clear and accurate explanation of how a fee was to be calculated.” Carl M. Selinger, Inventing Billable Hours: Contract v. Fairness in Charging Attorney’s Fees, 22 Hofstra L. Rev. 671, 677 (1994) (citing Texas Rules of Professional Conduct Rule 1.04 cmts. 7 & 8); see also Alabama Rules of Professional Conduct Rule 1.5(a)(9) (listing as a factor “whether there is a written fee agreement signed by the client”); Rules of Professional Conduct of the State Bar of California Rule 4–200(B)(11) (stating factors in evaluating reasonableness of fee include “[t]he informed consent of the client to the fee”); Hawai’i Rules of Professional Conduct Rule 1.5(a)(9)–(10) (listing “the relative sophistication of the lawyer and the client; and the informed consent of the client to the fee agreement”); Maine Code of Professional Responsibility Rule 3.3(a)(9) (listing as a factor “[t]he informed written consent of the client as to the fee agreement”); Virginia Code of Professional Responsibility DR 2–105(a) (“A lawyer’s fee shall be reasonable and adequately explained to the client.”); West Virginia Rules of Professional Conduct Rule 1.5(a)(8) (“Whether the fee agreement or confirming writing demonstrates that the client had received a reasonable and fair disclosure of material elements of the free agreement and of the lawyer’s billing practices.”).
116 Laurence Johnson offered the hypothetical of the rich eccentric who was willing to pay a six-figure hourly fee. See Letter from Laurence M. Johnson (Oct. 22, 1999) (on file with the authors). Professor Gillers asks in his casebook whether a $2 billion fee in a serious criminal matter would be excessive. See Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 139–40 (5th ed. 1998). These examples suggest both that, in extreme circumstances, upholding a bargained-for fee agreement might be problematic and that those circumstances are so unlikely to occur that the rules need not account for them.
117 See, e.g., Nathan M. Crystal, Professional Responsibility: Problems of Practice and the Profession 267 (1996) (commenting that fees are excessive when based on improper billing practices); Edmund B. Spaeth, Jr., Comment, 138 U. Pa. L. Rev. 795, 795 (1990) (“A lawyer who agrees to bill on a time-spent basis, and then pads the bill, is not charging a ‘reasonable’ fee . . . .”). Professor Lisa Lerman has written several detailed studies of improper billing practices. See, e.g., Lerman, supra note 8; Lisa G. Lerman, Lying to Clients, 138 U. Pa. L. Rev. 661, 705–20 (1990). Cf. Kevin Hopkins, Law Firms, Technology and the Double Billing Dilemma, 12 Geo. J. Leg. Ethics 93 (1998).
118 See, e.g., In re Reconversion Techs., Inc., 216 B.R. 46, 57 (Bankr. N.D. Okla. 1997) (“Sophisticated clients in today’s business world will not long remain with firms who do not trim the fat from their fee statements; the market is simply too competitive.”); Geoffrey Furlonger, Time for Business-Lawyers to Stop Billing Time?, in Beyond the Billable Hour, supra note 35, at 93, 96 (“given the abundance of lawyers in the United States, if a client is unable to negotiate what it considers to be a reasonable fee with one law firm, it presumably will negotiate a lower fee with another firm”; suggesting that a client who has been given information and the opportunity to negotiate, and who accepts a fee, “tacitly acknowledges the reasonableness of the fee”); Richard C. Reed, How Did We Get to Where We Are—And What Are We Going to Do About It?, in Beyond the Billable Hour, supra note 35, at 3, 4–6 (noting the change in modern law practice due in part to the increase in the numbers of lawyers); Gabriel J. Chin, Do You Really Want a Lawyer Who Doesn’t Want You?, 20 W. New Eng. L. Rev. 9, 19–20 (1998) (suggesting that legal marketplace is competitive); Kenneth Lasson, Lawyering Askew: Excesses in the Pursuit of Fees and Justice, 74 B.U. L. Rev. 723, 730–31 (1994) (noting that the pool of lawyers in the United States has more than doubled in the last 20 years to 850,000, that the ratio of lawyers to the general population is more than twice its historical average and that there are three times as many lawyers per capita in the United States than in any other society); Dorothy Fischer, A Glut of Lawyers in Mercer?, Mercer Bus., Nov. 1, 1996, at 16 (asserting that attorneys nationwide have become a “glut on the job market”); Jack Sirica, Smaller Pool of Aspiring Lawyers, Newsday, Nov. 18, 1996, at C6 (asserting that the drop-off in applications for admission to law school is due, in part, to the saturation of the job market for attorneys).
119 See United States v. Fidelity Phila. Trust Co., 459 F.2d 771, 777 (3d Cir. 1972) (holding that if fee is fixed prior to rendering of attorney’s services, a court need not inquire into reasonableness of fees); Farmington Dowel Prods. Co. v. Forster Mfg. Co., 421 F.2d 61, 90 (1st Cir. 1969) (determining that prior fee arrangement must be accorded great weight and that court’s supervisory power over attorneys’ fees is reserved for exceptional circumstances); Baumrin v. Cournoyer, 448 F. Supp. 225, 228 (D. Mass. 1978) (holding that a court may not diminish the effectiveness of a valid contract for legal fees); Jersey Land & Dev. Corp. v. United States, 342 F. Supp. 48, 54 (D.N.J. 1972) (noting that a court has “the inherent equitable power to pass upon the reasonableness of counsel fees charged” where a valid contract exists); Plunkett & Cooney, P.C. v. Capitol Bancorp Ltd., 336 N.W.2d 886, 889–90 (Mich. Ct. App. 1995) (holding it inappropriate to calculate damages on a quantum meruit basis where fixed fee agreement explicitly provides for agreed-upon value of services); Wolfe v. Morgan, 524 P.2d 927, 931 (Wash. Ct. App. 1974) (determining that bargained for attorneys’ fee should be given great weight in judging reasonableness, except where contract is unconscionable). But see, e.g., Trinkle v. Leeney, 650 N.E.2d 749, 754 (Ind. Ct. App. 1995) (holding that measure of reasonable fee is not necessarily determined by terms of attorney-client contract).
120 See, e.g., United States v. Goldfarb, 421 U.S. 773, 792 (1975); In re Smith, 572 N.E.2d 1280, 1288 (Ind. 1991); Cohen v. Radio-Electronics Officers Union, 679 A.2d 1188, 1195–96 (N.J. 1996); In re Hansen, 586 P.2d 413, 416 (Utah 1978); Heinzman v. Fine, Fine, Legum & Fine, 234 S.E.2d 282, 285–86 (Va. 1977); see also Aronson, supra note 79, at 6 (recognizing that lawyers owe a special ethical duty to society because they represent the means of access to the judicial system); Rau, supra note 35, at 2009 (noting that fee arrangements between lawyers and clients are subject to public regulation and supervision).
121 See, e.g., Radio-Electronics, 679 A.2d at 1195 (noting that responsibility to regulate conduct of attorneys extends to attorney-client fee arrangements in order to preserve fiduciary duties attorneys owe clients); see also Lester Brickman, Contingent Fees Without Contingencies: Hamlet Without the Prince of Denmark?, 37 UCLA L. Rev. 29, 70 (1989) (noting that the ethical duty prohibiting attorneys from charging clearly excessive fees derives from attorneys’ fiduciary obligations to clients); see generally 7 Am. Jur. 2d, Attorneys at Law § 137 (1997).
122 See, e.g., In re Myers, 663 N.E.2d 771, 774 (Ind. 1996); see also Ross, supra note 80, at 42; Wolfram, supra note 19, at 513; Brickman, supra note 121, at 47–48; Hazard & Hodes, supra note 69, at 123; William G. Ross, The Ethics of Hourly Billing by Attorneys, 44 Rutgers L. Rev. 1, 24–25 (1991); Chan, supra note 35, at 621–22; Note, Discovery Abuse Under the Federal Rules: Causes and Cures, 92 Yale L.J. 352, 358 n.36 (1982). Indeed, Ethical Consideration 2–17 of the Model Code recognizes the inherent tension between lawyers and their clients in charging fees:
The determination of a proper fee requires consideration of the interests of both client and lawyer. A lawyer should not charge more than a reasonable fee, for excessive cost of legal service would deter laymen from utilizing the legal system in protection of their rights. Furthermore, an excessive charge abuses the professional relationship between lawyer and client. On the other hand, adequate compensation is necessary in order to enable the lawyer to serve his client effectively and to preserve the integrity and independence of the profession.
Model Code of Professional Responsibility EC 2–17 (1980) (footnotes omitted); see also ABA Comm. on Ethics and Professional Responsibility, Formal Op. 379 (1993).
123 See, e.g., Robert L. Rabin, A Sociolegal History of the Tobacco Tort Litigation, 44 Stan. L. Rev. 853, 857 (1992) (“From the beginning, the cigarette companies decided that they would defend every claim, no matter what the cost, through trial and any possible appeals. Concomitantly, the companies decided that they would, as a first line of defense, spare no cost in exhausting their adversaries’ resources short of the courthouse door.”).
124 An accusation of physician malpractice or an act which is morally abhorrent, such as sexual harassment, might understandably be resisted even if the monetary amount in controversy was relatively small.
125 See, e.g., Cheryl Bell et al., Rape and Sexual Misconduct in the Prison System: Analyzing America’s Most “Open” Secret, 18 Yale L. & Pol’y Rev. 195 (1999); David M. Siegal, Note, Rape in Prison and AIDS: A Challenge for the Eighth Amendment Framework of Wilson v. Seiter, 44 STAN. L. REV. 1541 (1992); Richard D. Vetstein, Note, Rape and AIDS in Prison: On a Collision Course to a New Death Penalty, 20 SUFFOLK U. L. REV. 863 (1997); cf. Farmer v. Brennan, 511 U.S. 825, 843 (1994) (holding that prisons and jails can sometimes be liable for sexual assaults occurring therein).
126 Cf. Committee on Legal Ethics of the W. Va. State Bar v. Tatterson, 352 S.E.2d 107, 113 (W. Va. 1986) (“If an attorney’s fee is grossly disproportionate to the services rendered and is charged to a client who lacks full information about all of the relevant circumstances, the fee is ‘clearly excessive’ . . . even though the client has consented to such fee.”) (emphasis added) (citing In re Kennedy, 472 A.2d 1317, 1322, 1330–31 (Del. 1984) (involving attorney who, among other misconduct, charged contingent fee when there was no contingency)).
127 See supra note 77. Another example is In re Potts, 718 P.2d 1363, 1372 (Or. 1986), where the court found that lawyers had, among other misconduct, charged an excessive fee of $9000 for alleged legal services, unsupported by time records and which included services to the client such as car repairs and personal advice. The client had asked earlier about what the fee would be but received no answer from counsel. See id. at 1366–67. The court closed the opinion with a reminder not that fees should be reasonable, but rather that “[m]aking certain that an early clear understanding regarding fees is reached with the client aids the attorney-client relationship and lets the client know what to expect.” Id. at 1372. Once again, the problem was not the size of the fee per se, but client communication and agreement about what services would be performed and at what price. See id. For this reason, other courts have been critical of attorneys who unilaterally set fees late in the case, creating a situation where the client has no opportunity to elect to retain a different lawyer, negotiate a lower fee or forego a legal solution to the matter. See, e.g., Muskingum Bar Ass’n v. Tanner, 278 N.E.2d 21 (Ohio 1972); In re Kinast, 357 N.W.2d 282, 284–85 (Wis. 1984); see also Kentucky Bar Ass’n v. Graves, 556 S.W.2d 890, 892 (Ky. 1977) (charging overhead expenses and extravagant meals to client warranted discipline, “especially in the absence of a specific agreement with respect to those particular expenses”).
128 See, e.g., Dunn v. H.K. Porter Co., 78 F.R.D. 41, 45 (E.D. Pa. 1977) (refusing to approve class action fee award; “absent a showing that the clients were sophisticated commercial persons who were aware of the consequences of their decisions, we find this fee excessive”), rev’d on other grounds, 602 F.2d 1105 (3d Cir. 1979).
129 The Restatement explained that the first question was:
when the agreement was made, did the lawyer afford the client a free and informed choice? Relevant circumstances include whether the client was sophisticated in entering into such arrangements, whether the client was a fiduciary whose beneficiary deserves special protection, whether the client had a reasonable opportunity to seek another lawyer, whether the lawyer adequately explained the probable cost and other implications of the proposed fee agreement . . . whether the client understood the alternatives available from this lawyer and others, and whether the lawyer explained the benefits and drawbacks of the proposed legal services without misleading intimations.
Restatement, supra note 20, § 46, cmt. at 159–60.
130 As Professor Selinger noted, for example:
[T]he ethics rules that govern lawyers’ fees have never really made clear to what extent the propriety of a fee charged to a client should be evaluated according to contract/free market principles and to what extent according to principles of fairness. The upshot of this uncertainty has been, I fear, that some lawyers have felt free to use fairness arguments to excuse blatant contractual violations and others to use contract arguments to excuse a lot of unfairness.
Selinger, supra note 115, at 672; see also Hazard, supra note 81, at 98 (noting that the “Code’s formula provides sustaining authority” for high fee awards in a patronage system); John M.A. DiPippa, Lawyers, Clients, and Money, 18 U. Ark. Little Rock L.J. 95, 119 (1995) (“Using the reasonableness or clearly excessive standard does not adequately protect the client’s interests and allows lawyers to engage in what amounts to misrepresentation” in the context of non-refundable fees, areas where such practices are common); Watson, supra note 80, at 195 (noting that code factors, “particularly the amount customarily charged, undoubtedly will encourage double-billing and padding in areas where it is already the custom to do so”); Chan, supra note 35, at 619 (noting that malleability of factors means that there are “many different ways to justify different overbilling practices as reasonable using the factors”).
131 See In re Fordham, 668 N.E.2d 816 (Mass. 1996), cert. denied, 519 U.S. 1149 (1997); In re Kutner, 399 N.E.2d 963 (Ill. 1979).
132 See 668 N.E.2d at 825. S.J.C. Rule 3:07, DR 2–106, was identical to DR 2–106 of the Model Code of Professional Responsibility. See Model Code of Professional Responsibility DR 2–106 (1983).
133 See Associated Press, Lawyer Gets Censured for Working Too Long on Case, St. Louis Post-Dispatch, Aug. 14, 1996, at 6A; Gail Diane Cox, Fie on Fees: Excessive Fees are Attacked Across the Board, Nat’l L.J., Nov. 4, 1996, at A1; Cornelia Wallis Honchar, Decisions Cast a Shadow Over CLE Talks, Legal Fees, Chi. Daily L. Bull., Oct. 4, 1996, at 6; Maria Shao, SJC Disciplines Attorney for Excessive Fees, Boston Globe, Aug. 13, 1996, at D1; Loren Singer, Massachusetts Lawyer Sanctioned for Billing Too Many Hours of Actual Work, West’s Legal News, Aug. 16, 1996, available in 1996 WL 461297; David L. Yas, Attorney Disciplined for ‘Excessive’ DUI Fee; Bill for Handling ‘Routine’ Case Topped $50K, Mass. Law. Wkly., Aug. 19, 1996, at 1; David L. Yas, Some Lawyers Say Flat Fees Preferable in Criminal Cases, Mass. Law. Wkly., Sept. 9, 1996, at A1.
134 See Fordham, 668 N.E.2d at 818.
135 See Brief of Respondent at 3, In re Fordham, 668 N.E.2d 816 (Mass. 1996) (No. SJC 06951).
136 See Fordham, 668 N.E.2d at 818.
137 See id.; Petition for Certiorari at 54a, Fordham v. Massachusetts Bar Counsel, 519 U.S. 1149 (1997) (No. 96–946) (reprinting hearing committee’s finding of fact that client “did not want to plead guilty . . . even though he had been advised to do so by the other attorneys they consulted before Fordham.”).
138 See Fordham, 668 N.E.2d at 820.
139 See id. at 818–19.
140 See id. at 819.
141 See id. at 819. There is some dispute as to whether Fordham actually quoted an hourly rate at his first meeting. According to the Brief of the Bar Counsel, Clark’s father testified that Fordham told him that his rate was $200 per hour for his time and $100 per hour for the time of his associates. See Brief of the Bar Counsel at 5, In re Fordham, 668 N.E.2d 816 (Mass. 1996) (No. SJC 06951). Fordham testified, however, that he did not state a per hour rate because he did not know what his rate would be. See id. But see Associated Press, supra note 133, at 6A (indicating that according to Clark’s father, Fordham told him that the total cost for the case would be between $5000 and $7000). “Flat rate” billing entails an agreement between the attorney and the client for a single fee for services rendered, regardless of the actual amount of time that the attorney spends on the case. See Tolman, supra note 82, at 69. In addition to flat-rate and hourly billing there are several other methods by which attorneys may bill their clients. See id. For example, attorneys may bill on an “equity basis,” by which the attorney calculates the fees at the end of the representation pursuant to the eight factors outlined in the Model Code and the Model Rules. See id. An attorney may also bill on a “cost-plus” basis, in which the attorney bills based on his overhead costs, plus a reasonable profit. See id. Under the “punitive” billing method, the attorney bills in an amount that, in effect, punishes the client for repeatedly engaging in activity that the lawyer advises the client to avoid. See id.
142 See Fordham, 668 N.E.2d at 819.
143 See Associated Press, supra note 133, at 6A.
144 See supra note 141.
145 See Fordham, 668 N.E.2d at 820–21.
146 See id. at 819.
147 See id.
148 See id.
149 Id.
150 See Fordham, 668 N.E.2d at 819.
151 See id. at 819, 821–22 (quoting findings of the hearing committee).
152 See id. at 819.
153 See id. (citing Mass. Regs. Code tit. 501, § 2.56(2) (1994)).
154 See id.
155 See Fordham, 668 N.E.2d at 819.
156 See id.
157 See Associated Press, supra note 133, at 6A.
158 See Fordham, 668 N.E.2d at 819–20.
159 See Association of Am. Law Schools, Directory of Law Teachers 297 (1977).
160 See id.
161 See Fordham, 668 N.E.2d at 818.
162 See id.
163 See id. The Board dismissed the petition based on several factors. First, the Board noted that “[b]ar counsel and Fordham stipulated that Fordham acted conscientiously, diligently, and in good faith in his representation of the client and in his billing on the case.” Id. at 820. Further, the Board noted that although Fordham lacked experience in criminal cases and spent over 200 hours on the case, in part to educate himself on the law of OUI defense, Fordham was a “seasoned and well-respected civil lawyer.” Id. The Board also noted that Clark entered into the fee arrangement with “open eyes” after consulting with lawyers with more experience in OUI defense. See id. Finally, the Board found that the Clarks were not interested in considering a plea, and that they ultimately received an acquittal for Timothy. See id. at 820–21.
164 See id.
165 See id. at 821.
166 See supra note 75 and accompanying text for the eight factors listed in the Model Code and the Model Rules.
167 See Fordham, 668 N.E.2d at 821; see also S.J.C. Rule 3:07, DR 2–106(B)(1).
168 The hearing committee considered the testimony of 10 expert witnesses, six of whom submitted statements in the form of affidavits and four of whom appeared in person to testify before the committee. See Respondent’s Brief at 6, Fordham (No. SJC 06951). The Supreme Judicial Court addressed only the testimony of the four experts who testified in person before the committee. See Fordham, 668 N.E.2d at 821–22. Two of those experts were called by bar counsel and two were called by the respondent. See id. The court noted that the two experts called by Fordham testified that the fee charged was not clearly excessive. See id. at 822. One of the experts, however, testified that he had never spent more than 40 hours on an OUI case. See id. The other testified that she may have known of a case in which the attorney spent close to 100 hours, but in any event, she had never heard of an attorney charging a fee in excess of $10,000 for a bench trial. See id. Both attorneys indicated that the circumstances of the case were not unusual, but that the theory that Fordham employed for the suppression of the Breathalyzer tests was novel. See id. The experts for bar counsel both indicated that the circumstances of the case were not difficult or unusual, and that the fee charged by Fordham was excessive. See id. at 821. Bar counsel’s experts did testify, however, that Fordham’s theory for the suppression of Breathalyzer results was novel, justifying more time, but not justifying nearly the time charged by Fordham. See id.
169 See Fordham, 668 N.E.2d at 822.
170 See id. at 822–23 (citing In re Estate of Larson, 694 P.2d 1051 (Wash. 1985)).
171 Id. at 823 (quoting Model Code of Professional Responsibility EC 6–3 (1983)). Although Ethical Consideration 6–3 suggests that “a lawyer generally should not accept employment in any area of the law in which he is not qualified,” the Ethical Consideration makes clear that the attorney “may accept such employment if in good faith he expects to become qualified through study and investigation, as long as such preparation would not result in unreasonable delay or expense to his client.” Model Code of Professional Responsibility EC 6–3(1983); see id. DR 6–101(A)(1)(1983) (prohibiting an attorney from handling “a legal matter which he knows or should know that he is not competent to handle”); see also Larson, 694 P.2d at 1059 (“[C]lients should not be expected to pay for the education of a lawyer when he spends excessive amounts of time on tasks which, with reasonable experience, become matters of routine.”). There was no indication that the court considered Fordham to have violated DR 6–101(A)(1) by undertaking the representation. The court merely used the Ethical Consideration as guidance in determining that Fordham’s inexperience could not justify the high fee charged to Clark. See Fordham, 668 N.E.2d at 822–23.
172 See Fordham, 668 N.E.2d at 822–23; see also S.J.C. Rule 3:07, DR 2–106(B)(3).
173 See Fordham, 668 N.E.2d at 823.
174 See id. One of the witnesses testified that customary flat fees in OUI defense cases ranged from $1000 to $7500, and that he had never before heard of a fee in excess of $15,000. See id. Another witness testified that the customary fee ran from $1500 to $5000, and that he had never seen a fee over $10,000 for an OUI bench trial. See id. A third witness testified that Fordham’s fee was higher than any fee that she had ever encountered for similar services, that $10,000 was the highest fee she had ever heard of (through a “rumor”) and that the average fee for an OUI bench trial was about $2000. See id. The final witness testified that he had heard of $35,000 fees for defending OUI charges. See id.
175 See id. (quoting findings of the hearing committee).
176 Id. (quoting findings of the hearing committee).
177 Id. (quoting findings of the hearing committee).
178 See Fordham, 668 N.E.2d at 823–24.
179 See id. at 824.
180 Id. at 824.
181 See Gagnon v. Shoblom, No. 88–2105 (Mass. Super. Ct. Hampden Co., Feb. 20, 1990), rev’d, 565 N.E.2d 775 (Mass. 1991); see generally Lester Brickman, A Massachusetts Debacle: Gagnon v. Shoblom, 12 Cardozo L. Rev. 1417 (1991).
182 See Gagnon, 565 N.E.2d at 776.
183 See id. at 777.
184 See Fordham, 668 N.E.2d at 825; see also, e.g., First Nat’l Bank v. Brink, 361 N.E.2d 406, 411–12 (Mass. 1977) (upholding fee based on success of litigation which was more than seven times what hourly charges would have been, in spite of the absence of fee agreement); Rubin v. Taylor, 294 N.E.2d 544, 547 (Mass. App. 1973) (upholding large hourly fee in spite of limited success where lawyer warned client of possibility of lack of success and client decided to proceed).
185 399 N.E.2d 963 (Ill. 1979).
186 See id.
187 See id.
188 See id. at 964.
189 See id.
190 See Kutner, 399 N.E.2d at 964.
191 See id.
192 See id.
193 See id.
194 See id.
195 See Kutner, 399 N.E.2d at 964.
196 See id.
197 See id. at 966.
198 Id. at 967 (Clark, J., dissenting).
199 See id.
200 Kutner, 399 N.E.2d at 967 (Clark, J., dissenting).
201 See id.
202 Id. at 968.
203 See Charles McWhinnie, Luis Kutner, 84; Lawyer Fought for Human Rights, Chi. Sun Times, Mar. 3, 1993, at 66; Obituary, Chi. Daily L. Bull., Mar. 3, 1993, at 1.
204 See Obituary, supra note 203, at 1.
205 See United States ex rel. Montgomery v. Ragen, 86 F. Supp. 382, 390–91 (N.D. Ill. 1949).
206 See Association of Am. Law Schools, Directory of Law Teachers 153 (1949).
207 See, e.g., The Human Right to Individual Freedom: A Symposium on World Habeas Corpus (Luis Kutner ed., 1970) (contributors included Justices Brennan and Douglas).
208 See McWhinnie, supra note 203, at 66.
209 See Obituary, supra note 203, at 1.
210 See, e.g., Jeffrey G. Sherman, Mercy Killing and the Right to Inherit, 61 U. Cin. L. Rev. 803, 808 n.23 (1993) (citing Luis Kutner, Due Process of Euthanasia: The Living Will, A Proposal, 44 Ind. L.J. 539 (1969) as “the genesis of the living will idea”).
211 Cf. Attorney Grievance Comm’n v. Wright, 507 A.2d 618, 620 (Md. 1986) (holding that the prosecution failed to satisfy its burden of proof because six experts were evenly divided over whether fee was reasonable).
212 See In re Fordham, 668 N.E.2d 816, 821–22 (Mass. 1996).
213 Restatement, supra note 20, § 46, cmt. at 161.
214 Id.
215 Id. at 162. Of course, the illustration involves a settlement achieved by Lawyer on behalf of Bank Clerk, and, although in Kutner it is possible that the judge dismissed the case, and the prosecutor did not appeal, partly or entirely because a distinguished lawyer like Kutner was on the case, it is by no means certain. On the other hand, in the Restatement’s illustration, it may well be that a more inexpensive lawyer or bank clerk acting alone could have achieved the same deal, yet the lack of evidence of causation does not vitiate the entitlement to the fee. Perhaps it is for this reason that the first example in the illustration relies on the fact that the prosecutor dropped the charges without knowing of Lawyer’s retention by Bank Clerk to support the conclusion that Lawyer is due no fee. Once a lawyer formally becomes involved, it is always possible that the result is due, in part, to that involvement. This, indeed, was a foundation of Kutner’s defense, that his client wanted to make the case go away by hiring a distinguished lawyer. See Reply Brief of Respondent at 3, In re Kutner, 399 N.E.2d 963(No. 51608) (noting that Kutner’s “prestige and commitment to a jury trial would be conveyed to the Complainant through [the client’s] brother; and undoubtedly this would dissuade her from pressing the assault and battery case, which is precisely what happened”); id. at 5 (stating that the client “insisted that he wanted [Kutner] to impress his sister-in-law so she would dismiss the Complaint, which is what actually happened”).
It also must be acknowledged that both Fordham and Kutner involved client complaints. Client grievances are common in criminal cases, probably because when clients lose, they are understandably reluctant to pay even for excellent services, and when they win, they find it hard to understand why they should pay for avoiding having an injustice visited upon them. Therefore, the fact that both clients wish they could have paid less for their victories is not necessarily dispositive. Cf. Michael Dorman, King of the Courtroom 213 (1969) (noting that clients’ “gratitude . . . [o]ften . . . fades within hours of the jury’s pronouncement of the words ‘not guilty’”).
216 The Illinois Supreme Court in Kutner dismissed out of hand Kutner’s appeal to “the law of fixed fees” by pointing out that “the time required to perform a legal task is a factor.” 399 N.E.2d at 966. Thus, the court seemed to suggest that there was no difference for purposes of reasonableness analysis between a fee calculated on an hourly rate or one based on a flat fee. If flat fees are to be permitted at all, this cannot be correct. Indeed, in a later case, the court acknowledged that the fact that the fee in Kutner was calculated based on flat rate, among other circumstances, justified the minimal punishment Kutner received. See In re Gerard, 548 N.E.2d 1051, 1064 (Ill. 1989).
217 372 U.S. 335, 344 (1963).
218 491 U.S. 617, 630 (1989) (quoting Morris v. Slappy, 461 U.S. 1, 23 (1983) (Brennan, J., concurring in the result)); see also, e.g., James W. Coleman, The Criminal Elite: The Sociology of White Collar Crime 178 (3d ed. 1994) (“Many former defendants have openly admitted that their ability to ‘hire the best’ was the decisive factor in their case. . . .”); Jorge L. Carro & Joseph V. Hatala, Recovered Memories, Extended Statutes of Limitations and Discovery Exceptions in Childhood Sexual Abuse Cases: Have We Gone Too Far?, 23 Pepp. L. Rev. 1239, 1266 (1996) (asserting that in some cases, “who wins may be determined only by who hires the best attorney(s)”); Carolyn Jin-Myung Oh, Questioning the Cultural and Gender-Based Assumptions of the Adversary System: Voices of Asian-American Law Students, 7 Berk. Women’s L.J. 125, 164 (1992) (noting criticism that the justice system is “sta[c]ked in favor of the people who have the most assets, who can hire the best attorney”).
219 For example, indigent criminal defendants represented without charge by the Public Defender Service of Washington, D.C. or the Legal Aid Society of New York, or civil rights litigants represented by the NAACP Legal Defense and Education Fund or the Southern Center for Human Rights may well receive service of a quality difficult to duplicate in the market.
220 See Kutner, 399 N.E.2d at 966; In re Fordham, 668 N.E.2d 816, 821 (Mass. 1996) (crediting testimony that there were “no unusual circumstances” in the case).
221 407 U.S. 25 (1972).
222 See id. at 33.
223 Id. (citing Papachristou v. City of Jacksonville, 405 U.S. 156 (1972)).
224 Many United States Supreme Court cases have involved “routine” misdemeanor convictions. See, e.g., Nichols v. United States, 511 U.S. 738 (1994) (uncounselled misdemeanor conviction can be used to increase punishment at subsequent trial); United States v. Munoz-Flores, 495 U.S. 385 (1990) (misdemeanor fine did not violate constitutional requirement that revenue-raising bills originate in the House of Representatives); Butterworth v. Smith, 494 U.S. 624 (1990) (misdemeanor statute prohibiting disclosure of public records unconstitutional); Hunter v. Underwood, 471 U.S. 222 (1985) (disenfranchisement for misdemeanor offense of moral turpitude unconstitutional under the circumstances); Jones v. Helms, 452 U.S. 412 (1981) (misdemeanor conviction for abandoning children did not unconstitutionally infringe right to travel).
225 See, e.g., Jay G. Foonberg, Finding the Right Lawyer 201 (1995) (“All criminal accusations should be taken most seriously.”).
226 Barham v. State, 641 N.E.2d 79, 82 (Ind. Ct. App. 1994); see also Robins v. United States, 404 U.S. 1049, 1052 (1972) (Brennan, J., joined by Douglas & Marshall, JJ., dissenting from denial of certiorari); United States v. Rankin, 779 F.2d 956, 959 (3d Cir. 1986) (relying on notion the that “lawyers are not ‘fungible’” to support conclusion that refusal to grant continuance violated defendant’s right to counsel); Boulas v. Superior Court, 233 Cal. Rptr. 487, 491 (Ct. App. 1986) (noting that “[c]riminal defense lawyers are not fungible”).
227 Hazard, supra note 81, at 102; see also Foonberg, supra note 225, at 115; Robert L. Nelson, Partners with Power 143 (1988) (“Much of the associate’s work, such as research, drafting, and reviewing documents, requires general skills and intelligence. Yet there is enormous variation in the quality with which those tasks are performed . . . .”).
228 See Aronson, supra note 79, at 4; Lionel R. Barrett, The Ten Commandments of Setting and Collecting Attorneys’ Fees in Criminal Cases, The Champion, Aug. 1983, at 3, quoted in Hall, supra note 96, § 7:2, at 157. In the hiring context, at one time gender, race, appearance and social background mattered as much or more than academic record and ability. See S. S. Samuelson & L. Fahey, Strategic Planning for Law Firms: The Application of Management Theory, 52 U. Pitt. L. Rev. 435, 445 (1991). Studies have indicated that clients, or potential clients, do not seek out attorneys based on the cost of their services. Clients choose attorneys based on their perceptions of the attorney’s competence and on their perceptions of the attorney’s interest in their case. Clients want the best attorneys that they can afford, not the least expensive. See ABA Sec. of Crim. Just., Exploring the Labyrinth of Fee Setting, in How to Set and Collect Attorney Fees in Criminal Cases 13, 14 (1985). Moreover, as illustrated by Professor Jethro Lieberman in his book Crisis at the Bar, this sort of counterintuitive rationale may often be taken a step further in order to justify, in the minds of both attorneys and their clients, fees that seem unrelated to value. See Lieberman, supra note 82, at 107–08. Lieberman notes a story discussed in Joseph Goulden’s The Superlawyers. See Joseph C. Goulden, The Superlawyers 100–02 (1972). According to Goulden’s story, in 1959 the Revlon Corporation was under investigation as a sponsor of the discredited television show, the “$64,000 Question.” See id. at 100–01. Charles Revson, the head of Revlon, was originally represented by Max Kampelman, a politically connected Washington lawyer, who subsequently referred Revson to Clark Clifford, another well-connected attorney. See id. Clifford charged Revson $25,000 for only a “handful” of hours spent on the case, achieving no particular result on Revson’s behalf. See id. at 101. According to Lieberman, the justification for the $25,000 fee was Clifford’s reputation. See Lieberman, supra note 69, at 108. Clifford’s reasoning behind the $25,000 fee for his reputation, which was, in the end, of little use to Revson, was as follows:
When Revson gets the bill, he’ll cuss and call me a son of a bitch and the whole business. But he’ll pay it. And next year, when he’s down in Miami Beach playing gin rummy with his buddies, he’ll talk about his ‘friend Clark Clifford’ and his ‘lawyer Clark Clifford,’ and how much the so-and-so charged him—and it’ll be worth $25,000 to him.
Id. (quoting Goulden, supra, at 101–02). Thus, apparently to some, a high fee itself embodies certain value.
229 Hazard, supra note 81, at 101.
230 See, e.g., Michael Livingston, Confessions of an Economist Killer: A Reply to Kronman’s “Lost Lawyer”, 89 Nw. U. L. Rev. 1592, 1614 (1995) (noting that even for “tax and other business lawyers . . . creativity and judgment are already as important as technical skill”); James B. Loken, A Tribute to Anne Simonett, 21 Wm. Mitchell L. Rev. 347, 347 (1995) (“[T]he great lawyers all have those qualities of good judgment, common sense, and what we loosely refer to as people skills.”); Irwin P. Stotzky, James Mofsky’s Moral Vision, 45 U. Miami L. Rev. 11, 12 (1990) (noting that the departed attorney had “the one absolutely essential quality of a great lawyer—good judgment”).
231 Model Rules of Professional Conduct Rule 1.1 cmt. (1983).
232 Anthony T. Kronman, Chapman University School of Law Groundbreaking Ceremony, 1 Chapman L. Rev. 1, 4–5 (1998).
233 See, e.g., Varity Corp. v. Howe, 516 U.S. 489 (1996) (ERISA); Time Warner Cable v. Bloomberg L.P., 118 F.3d 917 (2d Cir. 1997) (cable television franchise contract); Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471 (10th Cir. 1997) (libel); Johnson v. State, 547 So. 2d 59 (Miss. 1989) (criminal).
234 See, e.g., Bigelow v. Old Dominion Copper Mining & Smelting Co., 225 U.S. 111 (1912) (tort); Muller v. Oregon, 208 U.S. 412 (1908) (women’s wage and hour regulation); Murphy v. Massachusetts, 177 U.S. 155 (1900) (criminal).
235 See, e.g., Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613 (10th Cir. 1998) (personal injury); In re Pratt, 82 Cal. Rptr. 2d 260 (Ct. App. 1999) (criminal); Colome v. State Athletic Comm’n, 55 Cal. Rptr. 2d 300 (Ct. App. 1996) (boxing license); Cobb v. University of S. Cal., 38 Cal. Rptr. 2d 543 (Ct. App. 1995) (discrimination/breach of contract).
236 See, e.g., Wheeler v. Chicago & W. Ind. R.R. Co., 108 N.E. 330 (Ill. 1915) (co-counsel with Edgar Lee Masters in personal injury case); Western Town Lot Co. v. Pettigrew, 168 N.W. 30 (S.D. 1918) (title to land); Scopes v. State, 289 S.W. 363 (Tenn. 1927) (criminal conviction for teaching evolution); State v. Winters, 145 A. 413 (Vt. 1929) (first degree murder).
237 See, e.g., Brown v. Board of Educ., 347 U.S. 483 (1954) (supporting segregation in education); Federal Power Comm’n v. Niagara Mohawk Power Corp., 347 U.S. 239 (1954) (administrative law/water rights); Far E. Conference v. United States, 342 U.S. 570 (1952) (antitrust); People v. Kressel, 277 N.Y.S. 168 (App. Div. 1935) (criminal).
238 See, e.g., United States v. Dennis, 183 F.2d 201, 205 (2d Cir. 1950) (criminal), aff’d, 341 U.S. 494 (1951); American Cyanamid Co. v. Elizabeth Arden Sales Corp., 331 F. Supp. 597, 599 (S.D.N.Y. 1971) (breach of contract); Rushton Co. v. F.W. Woolworth, 135 F. Supp. 17, 18 (S.D.N.Y. 1955) (copyright).
239 Although the cases that Justice Ginsburg handled in practice have an anti-sex discrimination theme (if the published opinions are typical), they draw on the application of a variety of subject matter areas. See, e.g., Califano v. Goldfarb, 430 U.S. 199 (1977) (Social Security benefits); Kahn v. Shevin, 416 U.S. 351 (1974) (tax); Missouri v. National Org. for Women, 620 F.2d 1301 (8th Cir. 1980) (antitrust).
240 See, e.g., Ferrero v. United States, 603 F.2d 510 (5th Cir. 1979) (personal injury); Youngblood v. United States, 507 F.2d 1263 (5th Cir. 1975) (per curiam) (tax); Pennzoil Co. v. Texaco Inc., 729 S.W.2d 768 (Tex. Ct. App. 1987) (tortious interference with contract); InterFirst Bank-Houston v. Quintana Petro. Corp., 699 S.W.2d 864 (Tex. Ct. App. 1985) (breach of fiduciary duty by trustees).
241 See, e.g., United States v. D’Amato, 39 F.3d 1249 (2d Cir. 1994) (criminal); In re American Express Co. Shareholder Litig., 39 F.3d 395 (2d Cir. 1994) (shareholder derivative action); Chase Manhattan Bank v. T&N PLC, 905 F. Supp. 107 (S.D.N.Y. 1995) (asbestos); Agee v. Paramount Communications, Inc., 869 F. Supp. 209 (S.D.N.Y. 1994) (copyright).
242 See, e.g., Lyons v. Oklahoma, 322 U.S. 596 (1944) (criminal); Smith v. Allwright, 321 U.S. 649 (1944) (voting rights); Alston v. School Bd., 112 F.2d 992 (4th Cir. 1940) (discriminatory teacher salaries); James v. Marinship Corp., 155 P.2d 329 (Cal. 1944) (labor).
243 See, e.g., Pickering v. USX, 801 F. Supp. 1501 (D. Utah 1992) (ERISA); United States v. Marcos, SSSS 87 CR. 598 (JFK), 1990 WL 29368 (S.D.N.Y. Mar. 9, 1990) (criminal); Dworkin v. L.F.P., Inc., 839 P.2d 903 (Wyo. 1992) (libel/First Amendment).
244 See, e.g., United States v. Gallo, 859 F.2d 1078 (2d Cir. 1988) (criminal); Grendle’s Den, Inc. v. Goodwin, 495 F. Supp. 761 (D. Mass. 1980) (First Amendment); American Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) (product liability); In re Initiative Petition No. 349, 838 P.2d 1 (Okla. 1992) (abortion rights).
245 See, e.g., Aspen Skiing Co. v. Aspen Highland Skiing Corp., 472 U.S. 585 (1985) (antitrust); Cablevision Sys. Dev. Co. v. Motion Picture Ass’n, 836 F.2d 599 (D.C. Cir. 1988) (FCC regulations); Tavoulareas v. Piro, 817 F.2d 762 (D.C. Cir. 1987) (libel); United States v. Posner, 694 F. Supp. 881 (S.D. Fla. 1988) (criminal tax).
246 See, e.g., Ruhrgas v. Marathon Oil, 119 S. Ct. 1563 (1999) (federal civil procedure); Bush v. Texas, 372 U.S. 586 (1963) (criminal); Hopwood v. Texas, 999 F. Supp. 872 (W.D. Tex. 1998) (affirmative action).
247 Of course, senior partners at elite firms may have only intermittent involvement in cases which bear their name as counsel, but this proves the point. Because judgment may be the most important quality in the law, it may be useful to have a brilliant lawyer involved, even at a high price, just for a few hours of participation in overall strategy or key decisions. It also suggests that a lawyer with good judgment can apply it beyond a narrow subspeciality of law.
248 See Brief of Respondent at 27 n.6, In re Fordham, 668 N.E.2d 816 (Mass. 1996) (No. SJC 06951).
249 Hazard, supra note 81, at 105.
250 The legendary Percy Foreman reportedly represented more than 1000 accused murderers, of whom fewer than 55 spent even one day in prison. See Dorman, supra note 215, at xi–xii. One way he achieved this record of success was through preparation.
Almost any expert questioned about Foreman invariably mentions one elementary ingredient of his style: when he enters the courtroom, he knows more about the case than anyone else. It is this knowledge—the result of hour upon hour of behind-the-scenes preparation—which enables Foreman to be such a tiger at cross-examination. His quick mind helps, of course. But far more important is his awareness of the background of every witness, every officer, every attorney, every judge, every juror involved in the case. Such awareness, coupled with a sixth sense that is the hallmark of every fine trial lawyer, enables hin to gauge almost instinctively when to hammer, when to coddle, when to feign boredom.
Id. at 133–34. Compare Joel F. Henning, Quality Assurance: Much More than Minimizing Malpractice 4, in The Quality Pursuit: Assuring Standards in the Practice of Law (Robert Michael Greene ed., 1989) (“The standard of excellence means working with each client to create and carry out strategies for succeeding in the client’s arena—not the lawyer’s.”) with Maute, supra note 8, at 799 (“Lawyers who depend on high volume for routine matters frequently run all cases through the same mill, providing minimal genuine representation. . . . [T]he legal system literally disenfranchises the poor and working poor, who must stand in line for limited patchwork representation by overworked legal services lawyers or public defenders.”), and Chan, supra note 35, at 627 (“[B]ecause the key benefit of flat fees is ‘the institution of standardized, pre-packaged groupings of cases and controversies,’ the grouping of cases and homogeneity of treatment will diminish the frequency of individualized and nuanced presentations of fine legal points.”) (quoting Sarah Evans Barker, How the Shift From Hourly Rates Will Affect the Justice System, 77 Judicature 201, 202 (1994)).
251 Nelson, supra note 227, at 214.
252 Id. at 269.
253 Id. at 286.
254 For example, one historian reports that in Massachusetts “as early as 1891 elite lawyers began a headlong rush to abandon criminal practice.” Alan Rogers, “A Sacred Duty”: Court Appointed Attorneys in Massachusetts Capital Cases, 1780–1980, 41 Am. J. Legal Hist. 440, 441 (1997); see also, e.g., John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar 93 (1982) (noting that criminal defense is “low prestige”); Donald A. Dripps, Ineffective Assistance of Counsel: The Case for an Ex Ante Standard, 88 J. Crim. L. & Criminology 242, 245 (1997) (“the professional status of the criminal lawyer tends to be low”) (citations omitted); William J. Genego, The Future of Effective Assistance of Counsel: Performance Standards and Competent Representation, 22 Am. Crim. L. Rev. 181, 211 (1984) (working conditions and pay make criminal practice unattractive to law students); John P. Heinz et al., The Changing Character of Lawyers’ Work: Chicago in 1975 and 1995, 32 Law & Soc’y Rev. 751 (1998); Kenneth B. Nunn, The Trial as Text: Allegory, Myth and Symbol in the Adversarial Criminal Process—A Critique of the Role of the Public Defender and a Proposal for Reform, 32 Am. Crim. L. Rev. 743, 810 (1995); Ralph Slovenko, Attitudes on Legal Representation of Accused Persons, 2 Am. Crim. L.Q. 101 (1964) (low pay and low prestige make criminal practice unattractive to students).
255 See Robert L. Spangenberg & Marea L. Beeman, Indigent Defense Systems in the United States, 58 Law & Contemp. Probs. 31, 33 (1995); see also Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 796 (1994) (noting that the typical criminal defendant “rarely hires the best lawyer”).
256 See John Leubsdorf, Legal Malpractice and Professional Responsibility, 48 Rutgers L. Rev. 101, 137 (1995). See generally Michelle S. Jacobs, Legal Professionalism: Do Ethical Rules Require Zealous Representation for Poor People?, 8 St. Thomas L. Rev. 97 (1995).
257 See Rodney J. Uphoff & Peter B. Wood, The Allocation of Decisionmaking Between Defense Counsel and Criminal Defendant: An Empirical Study of Attorney-Client Decisionmaking, 47 U. Kan. L. Rev. 1, 59 (1998). Professors Uphoff and Wood note that:
[M]any criminal defense lawyers still believe that as the “captain of the ship . . . ‘it is counsel, not defendant, who is in charge of the case.’” Most lawyers also believe that they generally have the right to control trial tactics and strategy even in the face of the defendant’s contrary opinion or explicit objection.”
Id. (citations omitted); see also Ann Southworth, Lawyer-Client Decisionmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers’ Norms, 9 Geo. J. Legal Ethics 1101 (1996).
258 See, e.g., Anthony Paduano & Clive A. Stafford Smith, The Unconscionability of Sub-Minimum Wages Paid Appointed Counsel in Capital Cases, 48 Rutgers L. Rev. 281, 334 (1991) (“The best lawyers come at a certain price, as do the mediocre.”).
259 Leubsdorf, supra note 256, at 137.
260 See John B. Mitchell, Redefining the Sixth Amendment, 67 S. Cal. L. Rev. 1215, 1221 (1994).
261 See, e.g., Dripps, supra note 254; William S. Geimer, A Decade of Strickland’s Tin Horn: Doctrinal and Practical Undermining of the Right to Counsel, 4 Wm. & Mary Bill of Rts. J. 91 (1995); Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel, 13 Hastings Const. L. Q. 625 (1986).
262 See, e.g., Brief of Respondent at 26 n.5, In re Fordham, 668 N.E.2d 816 (Mass. 1996) (No. SJC 06951) (stating that attorney hired was only attorney consulted who recognized and developed “novel” approach to OUI defense).
263 Fordham, 668 N.E.2d at 822–23.
264 See id. at 821–22.
265 See id. The Board of Bar Overseers Hearing Committee also found that “[g]iven the evidence against [the client], including the Breathalyzer, a two-thirds empty bottle of Vodka and a failed sobriety test, [acquittal] was a significant result.” See Petition for Certiorari at 55a, Fordham v. Massachusetts Bar Counsel, 519 U.S. 1149 (1997) (No. 96–946).
266 Anthony V. Alfieri, The Antinomies of Poverty Law and a Theory of Dialogic Empowerment, 16 N.Y.U. Rev. L. & Soc. Change 659, 685 (1987–88); see also James E. Brill, Frequent Flyer, 80 A.B.A. J., Mar. 1994, at 85 (noting that lawyers sometimes inappropriately trivialize client’s lives by describing legal problems as “simple” or “routine”).
267 Jacobs, supra note 256, at 101.
268 Thomas Alva Edison, quoted in Bartlett’s Familiar Quotations 555 (Justin Kaplan ed., 16th ed. 1992).
269 See, e.g., Geoffrey C. Hazard et al., The Law and Ethics of Lawyering 490–99 (3d ed. 1999) (excerpting and discussing Fordham); James E. Moliterno, Cases and Materials on the Law Governing Lawyers 136 (2000) (excerpting and discussing Kutner); Deborah L. Rhode & David Luban, Legal Ethics 686–93 (2d ed. 1995) (excerpting and discussing Kutner); John F. Sutton & John S. Dzienkowski, Cases and Materials on the Professional Responsibilities of Lawyers 371–74 (1989) (excerpting Kutner); see also Gillers, supra note 116, at 138–39 (discussing Fordham); Thomas D. Morgan & Ronald D. Rotunda, Professional Responsibility: Problems and Materials 141 (7th ed. 2000) (discussing Fordham); Maynard E. Pirsig & Kenneth F. Kirwin, Cases and Materials on Professional Responsibility 442 n.b (4th ed. 1984) (citing Kutner).
270 The preambles to both the Model Code and the Model Rules set out the overall objectives and design of each code. The Model Code urges that
[w]ithin the framework of [fundamental ethical] principles, a lawyer must with courage and foresight be able and ready to shape the body of the law to the ever-changing relationships of society. . . . Each lawyer must find within his own conscience the touchstone against which to test the extent to which his actions should rise above minimum standards.
Model Code of Professional Responsibility Preamble (1980) (endnote omitted) (citing Elliott E. Cheatham, Availability of Legal Services: The Responsibility of the Individual Lawyer and of the Organized Bar, 12 UCLA L. Rev. 438, 440 (1965)). The Model Rules provide that “[a]s a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession.” Model Rules of Professional Conduct Preamble (1983). Moreover, the preamble to the Model Rules states that “[a] lawyer should strive to attain the highest level of skill, to improve the law and the legal profession.” Id. Under the reasoning of the Fordham court, the goals of the Model Code and Model Rules as outlined in their respective preambles are clearly compromised by, in effect, prompting individuals to forgo “blue chip” representation in favor of bare-bones attorneys.
271 Caplin & Drysdale v. United States, 491 U.S. 617, 646–47 (1989) (Blackmun, J., dissenting) (citation omitted). In Caplin & Drysdale, Justice Blackmun noted that “even the best intentioned of attorneys may have no choice but to decline the task of representing defendants in cases for which they will not receive adequate compensation.” See id. at 647; cf. In re Kindhart, 160 F.3d 1176, 1177, 1178 (7th Cir. 1998) (characterizing sufficiency of bankruptcy fees as “an important matter not only to attorneys, but to the courts and the public,” and reversing low fee award because “the consequences of continued unreasonably low fees might affect the rendering of prompt and good legal services”).
272 Caplin & Drysdale, 491 U.S. at 647 (Blackmun, J., dissenting) (citations omitted).
273 See In re Boston & Maine Corp., 778 F.2d 890, 898 (1st Cir. 1985) (Campbell, C.J., joined by Breyer & Rubin, JJ.) (citations omitted).
274 U.S. Const. amend. VI.
275 287 U.S. 45 (1932). The Court in Powell set aside the convictions of eight African-American youths who were sentenced to death for rape in a case that quickly went to trial without the benefit of counsel and ordered the state to appoint counsel on retrial because the youths were unable to afford counsel. See id. at 49–50, 71. Although the case was pivotal in expanding the scope of the Sixth Amendment to apply to indigent criminal defendants, the holding of the case was narrow: “[I]n a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him as a necessary requisite of due process of law. . . .” Id. at 71. Ten years after Powell, in Betts v. Brady, 316 U.S. 455 (1942), the Court limited its application in state trials to cases in which the denial of appointed counsel denied fundamental fairness. In contrast, Johnson v. Zerbst, 304 U.S. 458 (1938), required the federal courts to routinely appoint counsel in felony cases. In 1963, the Court, in Gideon v. Wainwright, 372 U.S. 335 (1963), overruled Betts, holding that the right to appointed counsel existed in every felony case in which the defendant could not afford counsel. Then, in 1972, in Argersinger v. Hamlin, 407 U.S. 25 (1972), the Court further clarified the right to appointed counsel to apply to any criminal charge, including misdemeanors, in which a prison term could be imposed.
276 Congressional Research Service, Library of Congress, The Constitution of the United States of America: Analysis and Interpretation 1399 (Johnny H. Killian & George A. Costello eds., 1996); see also, e.g., William M. Beaney, The Right to Counsel in American Courts 27–33, 89–90 (1955) (discussing history of right to counsel); Bernard Schwartz, A Commentary on the Constitution of the United States: Right of the Person 107–08 (1968) (same).
277 Scott v. Illinois, 440 U.S. 367, 370 (1979) (citing Beaney, supra note 276, at 27–30).
278 Wolfram, supra note 19, at 791; see also Congressional Research Service, supra note 276, at 1399 (“[t]he development of the common-law principle in England had denied to anyone charged with a felony the right to retain counsel”). The reason for the harsh English policy “seems to have been general hostility against defendants and, perhaps, some concern that pettifoggery of lawyers would needlessly confound matters.” Wolfram, supra note 19, at 791.
279 287 U.S. at 53.
280 348 U.S. 3, 9 (1954).
281 Id.
282 See generally Eugene L. Shapiro, The Sixth Amendment Right to Counsel of Choice: An Exercise in the Weighing of Unarticulated Values, 43 S.C. L. Rev. 345 (1992).
283 486 U.S. 153, 159 (1988).
284 See id.
285 See id.
286 Id.
287 See id. at 156–57. The Supreme Court in Wheat determined that any “presumption in favor of [a criminal defendant’s] counsel of choice” may be overcome upon demonstration of actual or serious potential conflict of the attorney. See id. at 164.
288 491 U.S. 617 (1989), aff’g In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, 837 F.2d 637 (4th Cir. 1988) (en banc), reh’g United States v. Harvey, 814 F.2d 905 (4th Cir. 1987).
289 See Caplin & Drysdale, 491 U.S. at 619.
290 See id. at 621–22.
291 Harvey, 814 F.2d at 923 (citations omitted).
292 See Forfeiture, 837 F.2d at 644.
293 See id. (citing Harvey, 814 F.2d at 923 and United States ex rel. Ferenc v. Brierly, 320 F. Supp. 406 (E.D. Pa. 1970)).
294 See id. at 644–45. The court explained:
For this reason, fee forfeiture is not, as the . . . panel has suggested, the constitutional equivalent of a government-imposed cap on spending for defense counsel or a law requiring those charged with certain crimes to rely on appointed counsel. In these situations, the government attempts to restrict the defendant’s use of his own undisputed assets . . . . Those with their own funds must be given the fair opportunity to secure counsel up to the limit of their funds; those without assets of their own must be satisfied with appointed counsel, over whose selection they may have little influence.
Id.
295 See id. at 644.
296 See Caplin & Drysdale, 491 U.S. at 624–25.
297 Id. Of course, ethical fee limitations do not directly deprive clients of counsel. Lawyers whose skills and reputations allow them to command fees which would exceed the fee cap can simply reduce their rates or work for free. (They may be willing to do so for rich clients who provide other, more lucrative engagements.) Alternatively, high-cost lawyers could simply do a less thorough job. For practical purposes, however, fee caps prevent people from hiring counsel of their choice, as the Caplin & Drysdale Court acknowledged when it recognized third-party standing on the part of the law firm. See id. at 623 n.3.
298 Id. at 626 (citing Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 370 (1985)).
299 See, e.g., Haynie v. Furlong, 172 F.3d 62, 1999 WL 80144, at *2 (10th Cir. 1999) (concluding that Sixth Amendment right to counsel of choice “is generally cognizable only to the extent defendant can retain counsel with private funds”) (citing United States v. Mendoza-Salgado, 964 F.2d 993, 1014 & n.12 (10th Cir. 1992)); United States v. Jones, 160 F.3d 641, 646–47 (10th Cir. 1998) (concluding that due process grants defendants a post-restraint hearing in some circumstances when the government seizes assets needed to retain counsel); United States v. Inman, 483 F.2d 738, 739–40 (4th Cir. 1973) (“The Sixth Amendment right to counsel includes . . . the right of any accused, if he can provide counsel for himself by his own resources or through the aid of his family or friends, to be represented by an attorney of his choosing.”); United States v. Najjar, 57 F. Supp. 2d 205, 209 (D. Md. 1999) (holding that pretrial restraint of property which was not in fact subject to forfeiture violated the Sixth Amendment); English v. State, 259 A.2d 822, 825 (Md. Ct. Spec. App. 1969) (“[W]hen an accused has the means to employ counsel, he should be afforded a fair opportunity to secure counsel of his own choice.”) (citations omitted); State v. Buffalo Chief, 155 N.W.2d 914, 918 n.3 (S.D. 1968) (“A defendant with means has the right to be represented by a lawyer of his own choice.”) (citations omitted).
300 People v. Holland, 588 P.2d 765, 770 (Cal. 1978) (quoting People v. Crovedi, 417 P.2d 868, 874 (Cal. 1966)).
301 See, e.g., Morris v. Slappy, 461 U.S. 1, 21–22 (1983) (Brennan, J., concurring) (discussing the import of the constitutional guarantee of the right to assistance of counsel of choice). Some commentators have criticized the current practice of denying an indigent the right to use the funds allocated for his defense to retain counsel of choice. See, e.g., Wayne D. Holly, Rethinking the Sixth Amendment for the Indigent Criminal Defendant: Do Reimbursement Statutes Support Recognition of a Right to Counsel of Choice for the Indigent?, 64 Brook. L. Rev. 181, 181 (1998); Peter W. Tague, An Indigent’s Right to the Attorney of His Choice, 27 Stan. L. Rev. 73 (1974).
A possible exception is the well-established rule against contingent fees in criminal cases, which has been trenchantly criticized. See Pamela S. Karlan, Contingent Fees and Criminal Cases, 93 Colum. L. Rev. 595 (1993). Assuming that this rule would be upheld by the Supreme Court, as Professor Karlan explains, it arguably rests on some of the same considerations as Wheat. See id. at 600. It is true that denying defendants the right to retain counsel on a contingent fee may limit their ability to retain counsel of their choice. See id. at 605. Some lawyers might agree to take a case on a very large contingent fee who would not take the same case on an hourly basis. A contingent fee, however, in a criminal case is less likely to be attractive to lawyers or clients because usually no pot of money is created if the contingency comes through. See id. at 602–03. Thus, in the criminal context unlike the civil, a poor client generally cannot use the contingency structure to interest a lawyer who would otherwise decline the business. See id. Moreover, if a client can actually pay a contingent fee, they can likely pay a substantial hourly wage. Leaving these practicalities aside, a court might reason that contingent fees should be prohibited for the benefit of clients. A lawyer working on a contingent fee might be disinclined to consider a guilty plea to a reduced charge, or to do more than minimal work on the case if it turns out to be a probable loser. See id. at 631–32. Under these perfectly foreseeable circumstances, a contingent fee would disadvantage the client.
302 “An accused is not entitled to impose on legitimate interests of the prosecution and the judicial system in order to obtain last-minute continuances to accommodate the schedule of private counsel or to permit a dilatory accused to obtain private assistance for the first time.” Wolfram, supra note 19, at 802.
303 There may be arguments for limiting defendants from spending their own money which rest on rejection of the role of partisan lawyers in the adversary system, rejection of the adversary system as a whole or concerns about the undue influence of wealth on the justice system. Whatever the merits or lack thereof of these critiques, they are beyond the scope of this Article, as at the moment the United States has an adversary system driven in large part by hired counsel.
304 See Morris, 461 U.S. at 21–22 (Brennan, J., concurring). Further, if the concern of the Sixth Amendment is fairness and accuracy, there is no reason to impose fee caps, because fee caps will apply only on one side. Prosecutors are generally attorneys, and thus subject to ethical rules, but they generally do not receive fees based on each case. Accordingly, they are unlikely to face the question of unreasonable fees. They do have choices, however, about the resources to invest into any given case. Although prosecutors have incentives to use care with their limited resources, they never need to worry that spending too much time on a case, or putting their best efforts into it, will be met with discipline.
305 See 473 U.S. 305, 308 (1985).
306 See id. at 332–34.
307 See id. at 323–26.
308 See id. at 370 (Stevens, J., dissenting). According to Justice Stevens,
[i]f the Government, in the guise of a paternalistic interest in protecting the citizen from his own improvidence, can deny him access to independent counsel of his choice, it can change the character of our free society. Even though a dispute with the sovereign may only involve property rights, or as in this case a statutory entitlement, the citizen’s right of access to the independent, private bar is itself an aspect of liberty that is of critical importance in our democracy.
Id. at 370–71 (footnotes omitted). Justice Stevens also asserted that “[e]very citizen in this country is presumed to be unrestricted in consulting or employing an attorney on any matter, or in making a decision that legal representation for any purpose is not needed.” Id. at 371 n.22.
309 Id. at 332.
310 See Walters, 473 U.S. at 332.
311 See id. at 333.
312 See id.
313 Leroy D. Clark, All Defendants, Rich and Poor, Should Get Appointed Counsel in Criminal Cases: The Route to True Equal Justice, 81 Marq. L. Rev. 47, 66 (1997).
314 See Caplin & Drysdale, 491 U.S. at 635; Wheat, 486 U.S. at 163.
315 See Caplin & Drysdale, 491 U.S. at 635; Wheat, 486 U.S. at 163.
316 Wheat, 486 U.S. at 163.
317 Caplin & Drysdale, 491 U.S. at 635.
318 But see Roy Ryden Anderson & Walter W. Steele, Jr., Ethics and the Law of Contract Juxtaposed: A Jaundiced View of Professional Responsibility Considerations in the Attorney-Client Relationship, 4 Geo. J. Legal Ethics 791, 815 (1991) (arguing for more of a free-market approach to fee contracts and questioning “why a lawyer, acting without deceit, without coercion, and without any other form of untoward conduct is not free to price his legal services at what a client is willing to pay, reasonable or otherwise”).
319 This Article does not mean to enter into the debate about the possibility of achieving true informed consent in every case through the mechanism of rules and it is no doubt true that inequalities in knowledge and power will make it more difficult for many clients to exercise unconstrained choice. Recognizing the problematic nature of truly informed consent by clients, however, given the inevitability of attorney-client fee negotiations and agreements, this Article suggests an approach which, if it works, will leave the fewest clients surprised. If this approach is the best that can be done, or even is better than the current system, then the fact that it is imperfect is no reason not to consider it.
320 One article suggested that the failure to communicate was Fordham’s true error in the case. See Christine S. Filip & Ann E. Johnston, Misleading Message May Spark Suit, 146 Pittsburgh Legal J. 25, 26 (1998) (“While Fordham is not usually cited as a failure-to-communicate case, the issue of effective communication concerning the fee structure is implicit and instructive.”).
321 Model Rules of Professional Conduct Rule 1.5(b) (1983); see also id. Rule 1.4(a) (“A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.”); id. Rule 1.4(b) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”).
322 See Model Code of Professional Responsibility EC 2–19 (1980).
323 See Foonberg, supra note 225, at 66 (asserting that, in hiring attorneys, “[l]arge corporations often expect even more than a ‘consultation.’ They will often ask competing law firms to submit strategies and budgets for handling a particular matter.”).
324 Model Rules of Professional Conduct Rule 1.2(a) (1983).
325 Id. Rule 1.2(c).
326 Id. Rule 1.2(c) cmt.
327 Id. Rule 1.4(b).
328 See id. Rule 1.4(a); see also In re Dorothy, 605 N.W.2d 493, 501 (S.D. 2000) (reading MR 1.4 as potentially applicable to billing matters).
329 See 1 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 2.15, at 123 (3d ed. 1989). Although the treatise noted that estimating fees is difficult, it suggested that it was in lawyers’ best interest to discuss costs anyway, because it could lead to greater net collections. The treatise stated that
if the original estimates are conveyed properly and updated with some frequency, both the law firm and clients will benefit. Again, any client concerned about paying the fees and expenses will appreciate the effort spent in providing such estimates . . . . Given the amount of write-downs and write-offs which most firms experience, effectively discussing fees and expenses and providing frequent updates will probably improve law firm profitability.
Id.
330 See id. § 2.16, at 127; see also generally Lawrence A. Dubin, Client Beware: The Need For a Mandatory Written Fee Agreement Rule, 51 Okla. L. Rev. 93 (1998) (making the argument, indisputably correct, that all fee agreements should be in writing).
331 See, e.g., Model Code of Professional Responsibility DR 2–106 (1980); Model Rules of Professional Conduct Rule 1.5 (1983).
332 Model Rules of Professional Conduct Terminology (1983).
333 The purpose of the rule is to provide more information to clients, not impose all risk of uncertainty on the attorney. Therefore, it is not necessary that the estimates be binding on the attorney.
334 Thanks to William Becker for this suggestion.