[*PG1]CAN A REASONABLE DOUBT HAVE AN UNREASONABLE PRICE? LIMITATIONS ON ATTORNEYS’ FEES IN CRIMINAL CASES
Abstract: The disciplinary rules of every state prohibit attorneys from charging “unreasonable” fees. These provisions, however, are virtually never enforced; virtually all instances where the rules are invoked involve independent forms of dishonesty or misconduct. The only two cases in which attorneys have been disciplined solely based on the size of the fee involved “blue-chip” civil attorneys who represented working-class defendants in criminal matters. In both cases, the rationale for discipline was questionable; the clients were completely exonerated of criminal charges and the fees would have been unexceptional in elite civil practice. These disciplinary prosecutions were particularly doubtful because the Sixth Amendment right to counsel of choice prohibits the government from limiting the amount of money criminal defendants can pay their lawyers.
The reasonable fee rules are either unenforced or questionably enforced because they are not designed to limit lawyer’s fees or incomes per se, but to ensure that lawyers do not take advantage of clients, and that clients understand the nature of the legal services they are buying. The mismatch between the purpose of the rules and their language should be remedied by making clear that lawyers are obligated to talk with their clients about their legal options and offer some estimate of what they might cost. But fees negotiated after appropriate disclosure should not subject an attorney to discipline.
For as long as lawyers have been regulated, the law has prohibited them from charging clients “unreasonable” fees. The restriction against charging unreasonable fees is usually understood to mean that a lawyer can be disciplined for charging a client too much money, not that the lawyer lied, cheated or stole (wrongdoing covered by other rules), but simply that the bill was too high under the circumstances. Although complaints about fees are a major cause of client dissatisfaction, the reasonable fee rules have gone almost entirely unenforced. Lawyers are frequently sanctioned for procedural irregularities in billing, but it is not clear that any civil lawyer has ever been sanctioned simply for charging an excessive fee.
Only two published cases involve a lawyer disciplined solely for charging excessive fees; both involve lawyers representing criminal defendants.1 The cases are remarkable simply because of their rarity and because the lawyers involved seemed unlikely candidates for punishment. One lawyer, Laurence S. Fordham, had been an editor of the Harvard Law Review, a law clerk for the United States Supreme Court, the managing partner of a leading Boston law firm and was a member of the Harvard Law School faculty. The other, Luis Kutner, had been a faculty member at Yale Law School, learned criminal practice at the foot of Clarence Darrow, used his skills to achieve the release of 1000 criminal defendants and political prisoners during his career, was responsible for innovations in the legal system such as the living will, and helped establish Amnesty International. Both clients involved were completely exonerated of all criminal charges. In each case, it seems that the lawyer’s true offense was doing white-collar-style work for blue-collar clients—and charging for it.
The reasonable fee limitation has been unenforced or enforced perversely because the substance of the rule is not connected to the purpose behind it. The justification for regulating fees is not that lawyers should make modest incomes or that clients should be protected from their own improvidence. Instead, the purpose of regulation is to prevent lawyers from taking advantage of client ignorance about the market for legal services and about the appropriateness of particular legal strategies. At present, the rules do not accomplish this well, requiring only very limited discussion about the fees clients will be required to pay. This Article proposes that the purpose behind the rule [*PG3]can be achieved directly, by eliminating the reasonable fee rule and replacing it with a requirement, which does not now exist, that lawyers provide their clients with specific information about what they are likely to be charged at the beginning of the representation.
As Part I explains, a common law limitation on “unconscionable” attorneys’ fees was replaced in 1969 by the ABA Model Code of Professional Responsibility’s rule against “clearly excessive” fees. The Model Code was supplanted in 1983 by the ABA Model Rules of Professional Conduct, which said that lawyers could not charge “unreasonable” fees.2 Notwithstanding decades of regulation, although lawyers are frequently disciplined for improprieties in connection with fees, such as misleading a client about how much a matter will cost, doing unnecessary work or lying about work performed, the authors have found no clear evidence that even one civil lawyer has ever been disciplined simply for charging a fee which was too high.3 The only lawyers convicted of charging excessive fees have been representing clients in “retail” criminal matters—street crimes or driving offenses where both the going rates and perceived prestige of the practice areas are modest.4
Part I suggests that it should not be surprising that civil attorneys are never disciplined (and criminal attorneys are almost never disciplined) simply because their fees are too high. In several ways, the current law regarding attorneys’ fees is unhelpful. Each succeeding regime of regulation changed the language which previously had been used to express the idea that attorneys may not charge unreasonable fees, yet none of them explained whether the new term was meant to establish a new standard for reasonableness of fees.5 Thus, lawyers and disciplinary authorities are left to wonder just how excessive or unreasonable a fee must be before it is prohibited and subject to disciplinary action. Perhaps more fundamentally, the test employed by the ABA codes to measure reasonableness is so vague that it is virtually useless. The test invokes no fewer than eight multi-part factors—and the list is expressly non-exclusive. Accordingly, on almost any given set of facts, application of the factors to a fee could sustain a reasonable argument that the fee is justified and a plausible argument could also be made that the fee should have been different.6
[*PG4] Additionally, Part I suggests that the rules are unsatisfactory not just because they are loosely drafted or imprecise, but because they are not directly connected to the real harm they are designed to prevent.7 The rules are not designed to impose some upper limit on the amount a skilled and energetic lawyer can earn; lawyers who earn six, seven or eight-figure incomes through zealous advocacy within the bounds of the law are honored, not disciplined.8 The reasonable fee rules are not even aimed at the size of fees in individual matters as such. Instead, the rules are intended to promote fairness to the client in setting fees and billing. They do so, however, in an indirect and imperfect manner; nowhere do the rules require lawyers to consult with clients to ensure that clients understand the financial implications of fee arrangements.
Part II describes the harm caused by the disconnection between the purpose and text of the rule. It is true that the purpose of the rule is to regulate the procedure by which the fees are set. As such, the rule is generally invoked not because the fee is too high, but because it is unfairly set. Even so, as now constituted, the rule creates two serious problems. One problem is that it leads to underenforcement of the rule, or, at least, underachievement of the purpose of the rule, because it does not give clear direction to the lawyers affected and the authorities who must enforce it about the principle at stake. There is a substantial gap between something approaching comprehensive disclosure, and the kind of dishonesty and overreaching which result in discipline. Left unprotected are clients who are surprised by the amount of the fees, and understandably angry at lawyers who cannot be disciplined because they acted in good faith and did not violate any rule.9
Another problem created by the imprecision of the rule is that it has lead to unwarranted disciplinary prosecutions in a context which is likely to reduce client access to counsel. Part II examines the excep[*PG5]tional disciplinary cases which imposed liability solely on the basis of the excessive amount of the fee.10 These cases are controversial, notorious and unjustifiable in result. First, given the elasticity of the standards used for determining a reasonable fee, there is a strong argument that the fees were reasonable under the eight-part test.11 For example, while the Supreme Judicial Court of Massachusetts disciplined an attorney for charging $50,000 in a “routine” drunk driving case, that attorney was an experienced, expert litigator with a national reputation. Through diligence and ability, he won an acquittal for his client in the face of a very strong government case. There, he persuaded the trial court to suppress an incriminating Breathalyzer test using a novel legal argument.
Enforcement of the reasonable fee rules in criminal cases will hurt clients, not help them. Because the court held that a client could not consent to pay a fee that a tribunal later might determine was unreasonable, clients are no longer free to choose expert, expensive representation in subject matter areas with relatively low “going rates.” Part II suggests that the object lessons of these cases, if heeded, will have unfortunate consequences for clients seeking representation. The cases in which lawyers were convicted of charging unreasonably high fees were criminal cases of a kind that a working-or middle-class person might face. Fee restrictions in relatively low prestige practice areas will discourage lawyers with other career options from entering non-white-collar criminal defense. Moreover, under the current rule, a lawyer is required to turn down an engagement involving an “unreasonable” fee, even if the client, after being fully informed, still urgently wants the lawyer’s services. Therefore, in two ways, the disciplinary prosecutions may act to deprive people of ordinary means of the ability to hire counsel of choice.12
Part III offers another reason why the cases disciplining criminal defense attorneys for charging excessive fees were wrongly decided—they violate the Sixth Amendment of the United States Constitution.13 The Sixth Amendment guarantees the right to counsel in all criminal prosecutions. In recent years, this clause has been examined to determine the extent that it guarantees indigents free counsel.14 The original purpose of the clause, however, was to establish the right of [*PG6]persons to hire their own counsel, precisely the right that fee restrictions impair.15 The right to counsel of choice is not unlimited; courts have held that a defendant has no right to insist on unlicensed counsel or counsel with a conflict of interest.16 Nevertheless, the government has no legitimate interest in preventing client access to lawyers simply because they are skilled enough to command high rates or committed enough to work many hours in their clients’ defense.
Part IV concludes that the remedy for the mismatch between the purpose of the rule and its language is for the ABA and the states to adopt a rule requiring counsel to offer clients information about fees.17 This remedy will promote the fair treatment of clients, by requiring that they receive relevant information about the fees they will be charged, which the rule does not currently require. It will also avoid the problem of depriving them of the opportunity to retain counsel of their choice.
In express terms, the ethical rules of every state prohibit accepting an unreasonable or excessive fee. Yet no definitive evidence has been found that any civil lawyer has ever been disciplined exclusively for charging a fee the court deemed excessive, in the absence of some other form of misconduct.18 Thus, Professor Charles Wolfram has noted that “disciplinary cases resulting in findings of impermissible fees have most often dealt with the process by which the offending lawyer set the fee.”19 Professors Deborah Rhode, Geoffrey Hazard and [*PG7]William Hodes have also observed that discipline for charging excessive fees is rare.20 Decisions cited in the relevant American Jurisprudence entry seem typical of this body of law. This treatise asserts that “[a]n attorney may be subject to discipline for charging excessive fees for legal services.”21 The footnote and pocket part cite two dozen cases, but with a single exception,22 the cases do not really support the proposition.23 The cases cited involve illegal fees;24 attempts to collect more than agreed;25 fees charged for work which was unneces[*PG8]sary,26 not in fact performed27 or already paid for;28 lying to or stealing from clients;29 and fees set by the attorney in self-dealing transactions.30 Some of the cases do not involve attorney discipline under the excessive fee rules at all31 and most if not all could have been [*PG9]punished under other rules prohibiting fraud and misrepresentation.32
If these cases are representative, then the excessive fee rules, for all practical purposes, are dead.33 Nonetheless, many clients are furi[*PG10]ous that their attorneys have charged them large fees.34 Disputes over fees have been “universally recognized as constituting the most serious problem in the relationship between the Bar and the public.”35 Moreover, the public’s perception that lawyers charge too much for their services reportedly has increased in recent years.36 Furthermore, many lawyers earn extremely large incomes.37 Accordingly, the lack of prosecution demands an explanation, which, upon inspection, is not difficult to find. Both the development of the rules and their content invite lawyers themselves and those evaluating their conduct to assume that any fee complies with the rules in the absence of dishonesty or bad faith. In essence, it is not clear whether the rules provide that a fee has to be merely unreasonable or extremely unreasonable to warrant discipline, and the factors by which either question is evaluated are so broad as to be indeterminate.
At common law,38 only fees so high that they necessarily rested on “fraudulent and dishonest motives”39 or were “so exorbitant and wholly disproportionate to the services performed as to shock the conscience”40 were considered appropriate matters for discipline.41 [*PG12]Thus, in In re Greer, the Washington Supreme Court disciplined an attorney for charging a contingent fee in a civil case, but basing his share on an amount greater than the sum in fact recovered.42 There, the attorney also “reimbursed” himself for expenditures which in fact had not been incurred.43 As to certain other questionable sums charged by the attorney, the court agreed with the disciplinary committee that they were excessive under the circumstances, but not unconscionable, and therefore did not warrant disciplinary proceedings.44 It is difficult to see the sanctioned behavior as anything other than fraud, and surely charging such fees is unreasonable, but this approach suggests that fees established and calculated in good faith are inappropriate subjects for discipline.
In another widely cited common law case, Bushman v. State Bar of California, the Supreme Court of California imposed discipline because it believed that the attorney had falsified the bill.45 The attorney in Bushman agreed to defend in a divorce action Barbara Cox, her boyfriend, Ralph Hughes, and her parents, Mr. & Mrs. Stroud.46 Because there was no community property, the only substantial issue was custody of Ms. Cox’s child, although there was a possibility, which never came to pass, that Hughes would be charged with statutory rape because Ms. Cox was a minor.47 Bushman demanded that Ms. Cox, the Strouds and Hughes sign a $5000 note to secure a fee based on a $60 hourly rate.48 No criminal or other related litigation developed, and after the case settled quickly by stipulation in Ms. Cox’s favor, Bushman received a $360 fee and expense award from the court, payable by Ms. Cox’s ex-husband.49 Bushman failed to mention to the court that he expected further fees.50 By contrast, Ms. Cox’s ex-husband paid his lawyer a total of $300 plus costs.51
Bushman billed his clients an additional $2800 and claimed that he spent a total of over 100 hours on the case, which would justify a $6000 bill.52 The California Supreme Court was clearly skeptical, not[*PG13]ing that “Bushman did not produce any records to substantiate his claim that he had spent 100 hours on the Cox matter,”53 and that “[i]t is of some significance in this connection that [Mr.] Cox’s attorney spent slightly more than five hours on the case.”54 In response to Bushman’s argument that the case was complex, the court noted that “[a]n examination of the file in the Cox matter reveals that only a simple, almost routine series of documents was filed by Bushman.”55 Because the note and retainer agreement “imposed liability on all four as joint and several obligors, without regard to the value of the legal services rendered to each,”56 because the value of the services rendered appeared disproportionate to the fee, and because Bushman failed to disclose the fee agreement to the trial court, the court concluded that Bushman’s “course of conduct . . . contained an element of fraud or overreaching warranting disciplinary action.”57
The common law also recognized a middle ground, which continues to be applied under the codes. Some were judged by courts not to be so unreasonable as to create grounds for discipline, but too large to be enforceable.58 As the Restatement of the Law Governing Lawyers (“Restatement”) explains: “For a variety of reasons, discipline might be withheld for charging a fee that would nevertheless be set aside as unreasonable in a fee-dispute proceeding.”59
[*PG14] Although the common-law approach was informed to some extent by the ABA Canons of Professional Ethics of 1908 (“Canons”), the first true ABA code was the Model Code of Professional Responsibility (“Model Code”),60 promulgated in 1969. The Model Code was replaced in 1983 by the Model Rules of Professional Conduct (“Model Rules”).61 The codes continue to regulate fees.62
[*PG15] Disciplinary Rule (“DR”) 2–106(A) of the Model Code provides that “[a] lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.”63 DR 2–106(B) explains that “[a] fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.”64 A footnote to the “clearly excessive” language in DR 2–106 cites pre-Code ABA opinions and other authority using the common-law misappropriation test.65 This comment may suggest that despite the differing language, the Model Code was intended to continue the pre-Code common-law standard.66
Rule 1.5 of the Model Rules changed the language again, requiring simply that “[a] lawyer’s fee shall be reasonable.”67 Because the Model Code prohibits fees that are “clearly excessive,” and the Model Rules requires that fees be “reasonable,”68 some have argued that the Model Rules adopts a stricter test under which a high fee is more likely to be found unreasonable.69 Moreover, under the Model Code, the as[*PG16]sessment of the excessiveness of the fee is to be determined from the standpoint of the “lawyer of ordinary prudence.”70 The Model Rules omits this language from the provisions of Rule 1.5, and thus apparently adopts the point of view of the “ordinary prudent person.” This change also may hint at more rigorous regulation.71
A “clearly excessive” fee under DR 2–106(A), however, was defined as one that was more than reasonable.72 Accordingly, under both the Model Code and the Model Rules, the test seems to be whether or not the fee is reasonable. If the word “reasonable” means the same thing in the Model Rules and the Model Code, it may be that the newer Model Rules continue the lawyer-friendly common-law standard of the Model Code.73
The official comments to both the Model Rules and the Model Code fail to explain whether their language modified the previously prevailing substantive standard (in the process effectively overruling all of the cases decided under the prior regime), and if so, how. The codes therefore may present a mysterious standard to attorneys and disciplinary authorities, encouraging the former to measure reasonableness by what a client is willing to pay and the latter to assume that an honest bargain is not unreasonable.
A critical portion of the Canons was retained with modifications in the Model Code, namely, in the factors used to measure the reasonableness of a fee. The Model Rules, in turn, adopted the Model Code’s factors verbatim.74 Both the Model Code and the Model Rules employ an elaborate eight-part test, which includes:
(1) The time and labor required, the novelty and difficulty of the legal questions involved, and the skill requisite to perform the legal service properly;
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3)The fee customarily charged in the locality for similar legal services;
(4)The amount involved and the results obtained;
(5)The time limitations imposed by the client or by the circumstances;
(6)The nature and length of the professional relationship with the client;
(7)The experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8)Whether the fee is fixed or contingent.75
This test is non-exclusive; lawyers and courts are free to consider other factors. Other recognized factors include the client’s ability to pay a fee,76 and the principle that a sophisticated client’s arms-length agreement is virtually unassailable.77 In the absence of fixed fee [*PG18]schedules, it is difficult to use these factors to reach definitive results.78 Rarely will all of the factors point in the same direction; the rules give no guidance as to how ambiguous situations should be resolved. Understandably, most lawyers and disciplinary authorities assume that, in a gray area, an honest bargain should be respected.79
Few defend the Model Code and Model Rules factors as useful tools of analysis or deny they provide little guidance in identifying the “clearly excessive” or “unreasonable” attorneys’ fees that warrant discipline.80 [*PG19]Professor Hazard has observed that application of “[a]ny eight-factor test produces a wide range of outcomes, particularly [where, as here] some of those factors are indeterminate.”81 Professor Wolfram, likewise, observed that:
the single standard of an excessive fee, as stated in all of the lawyer codes, is necessarily vague because of the greatly varied settings in which fees are charged, and thus uncertain in its application.82
Court decisions regarding legal fees offer little guidance because their facts vary widely.83
[*PG20] The specific factors are also deeply questionable. Professor Aronson is suspicious of factor two, loss of other employment by virtue of accepting a particular matter. In this regard, Professor Aronson argues that “overreliance on time lost per se penalizes competent attorneys who most need to earn fair value for their services but whose youth, inexperience, or transience puts them at a disadvantage in attracting clients.”84
The focus on the going rate reflected in factor three has a dubious pedigree; it dates to the price-fixing era, since repudiated by the United States Supreme Court.85 Some commentators suggest that factor three continues to justify overbilling practices so long as they are common.86 It would also have odd consequences if it were actually enforced. In a market which no longer relies on fixed prices, there will usually be a distribution of fees, and someone will always have the highest fee. If the highest chargers are at risk for discipline, they will tend to go into another area of practice or lower their fees. Consequently, another attorney or group of attorneys will be at the top and the cycle will continue, imposing constant downward pressure on fees. This movement has not occurred, but it might if the rules were enforced. This result may help explain why they are not.
The fourth factor, the results obtained, seems entirely reasonable if the fee is contingent, but that circumstance is covered by factor eight. If the fee is non-contingent, why should the results obtained matter? Concretely, why should lawyers who work honestly and diligently on the basis of a fixed fee or an hourly rate be subject to discipline if they lose, when their fee for entirely identical services would be deemed reasonable if they win?87
[*PG21] The other consideration in factor four, the amount involved, assumes that the only value is money. Concerns such as avoiding a death sentence or prison term; preventing deportation from the United States; obtaining custody or visitation of one’s children; retaining a particular job or office; protecting the sentimental value of particular real estate or personal property, or an individual’s reputation; and standing on matters of principle, do not count at all. Presumably this is an oversight, but it is a serious one. It also seems to give the attorney an almost proprietary interest in every case; it suggests that an attorney “may be able to do a small amount of work with great reward.”88 Other than to the extent that a lawyer is entitled to take into account his or her potentially greater liability when handling a relatively large matter, “the quality of the representation in terms of the time, effort, and expertise expended would seem to be a better basis for valuation.”89
The fifth factor, time limits imposed by the client, seems irrelevant, given that actual time spent is considered by factor one and an inability to accept other business is accounted for by factor two. Professor Wolfram asks which way factor six points: “It is not apparent whether longevity in a client-lawyer relationship is meant to justify a higher or only a lower fee.”90
Professor Aronson criticizes factor seven, the experience, reputation and expertise of the attorney.91 He suggests that “this factor, too, would appear to be more appropriately subsumed under a general consideration of the quality of work, and its importance should be greatly diminished when the case does not require the attorney’s unique skills.”92
The process is made more difficult because lawyers are of necessity responsible for the initial evaluation of the reasonableness of their fees.93 The codes use factors including the attorney’s skill, ability and reputation. Since most lawyers probably believe that the services they render are of high quality and that they are esteemed by their col[*PG22]leagues and the community, the attorney’s services always justify a large fee.94
The factors also fail to make clear when the reasonableness of the fee is to be measured. The second factor, the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer, contemplates evaluation at the beginning of the representation because it is based on a prediction about the future.95 On the other hand, the results obtained, the second part of factor four, cannot be known until the end of the representation.
It also seems that the rules were designed for civil cases rather than criminal cases. The first part of factor four, the amount involved, would not take into account the possibility of imprisonment or execution in evaluating the reasonableness of a fee. The rules also envision the possibility of a contingent fee, which is prohibited in criminal cases by both ABA codes.96
The Restatement implicitly criticizes the eight-factor test by citing it and then recasting it as “really” getting at three questions which are not explicitly mentioned:
Those [eight] factors might be viewed as responding to three questions. First, when the agreement was made, did the lawyer afford the client a free and informed choice? . . . Second, does the agreement provide for a fee within the range commonly charged by other lawyers in similar repre[*PG23]sentations? . . . Third, was there a subsequent change in circumstances that made the fee agreement unreasonable?97
The first and third of these questions have much to commend them, but they are not hinted at in the eight factors as written.
In sum, the factors as written may well include some which lawyers would want to use in deciding whether to accept an engagement at a particular price, and which clients would wish to consider when deciding how much to spend on a lawyer for a particular matter. Therefore, these factors may help explain, after the fact, why particular lawyers and clients agreed to particular fees in particular matters. But it will be very difficult to use these factors to distinguish between fair and unfair fees in the absolute sense because they are driven in large part by the personal values of particular attorneys and clients.98
Perhaps the most telling proof of the futility of evaluating the reasonableness of fees is the ABA’s own conduct. Although the ABA has burdened lawyers and disciplinary authorities with the task of analyzing the reasonableness of legal fees in the context of an unhelpful scheme, the ABA has refused to weigh in on the matter. The prestigious ABA Ethics Committee offers written opinions with respect to specific ethical questions which, when published, constitute influential sources of authority. As early as 1930—nearly four decades before the Model Code adopted the eight-factor test—the Committee established a policy of refusing to offer opinions on the reasonableness of fees in the absence of fraud or overreaching.99
The problems with the Model Code and Model Rules that have led to their desuetude are deeper than that they are badly drafted or too complicated. Because the Model Code and Model Rules are intended to be construed in accordance with their purpose,100 it would be helpful to know why they exist. Articulated rationales for fee regulation break down into two broad categories—maintaining access to the legal sys[*PG24]tem on behalf of the poor and prevention of abuse of the trust which clients naturally repose in counsel. Only the second rationale is legitimate, and even it does not justify regulating the amount of attorneys’ fees.
One rationale for regulating fees, ultimately chimerical, rests on the impact of excessive or unreasonable fees on public access to the legal system.101 For example, Ethical Consideration (“EC”) 2–17 explains: “A lawyer should not charge more than a reasonable fee, for excessive cost of legal services would deter laymen from utilizing the legal system in protection of their rights.”102 Former clients who were charged excessive unreasonable fees and their friends may be deterred from hiring lawyers again, but other than to the extent that a high fee results from deception or fraud, the argument is unpersuasive. Unfortunately, there is no ethical rule that legal services have to be made available at a price the public is able to pay.
Moreover, if this consideration is addressed to individual lawyers, the rationale would seem rarely to apply because an individual lawyer’s rates do not affect access to the legal system as a whole. If, for example, Alan Dershowitz or Robert Bennett charge far more than most lawyers, then the prospective client can simply hire one of the other lawyers, and there is no diminution of access to the legal system. Although the client may prefer to retain Dershowitz or Bennett at a lower price, there is no ethical precept which says the lawyers who are most desirable because they are the most able and effective have to be available to the average person at an affordable price. Many of the finest law firms in America charge rates which preclude all but the wealthiest individuals and corporations from retaining them, yet no serious claim exists that, ipso facto, every dollar they bill is in violation of the rules.103
Alternatively, perhaps the principle is addressed to the profession as a whole; that is, perhaps the reasonable fee limitation is designed to encourage lawyers as a group not to raise their prices to a level which [*PG25]the average person cannot afford. Of course, that has already happened, with no response from the ABA. Most individuals with legal needs do not receive legal assistance to resolve them because of their limited resources, not because prices have been fixed. Because the ethics system does not propose that lawyers as a whole meet the legal needs of the nation, the fact that a lawyer’s fee is out of reach of a layperson does not suggest that it is excessive.
The treatment of pro bono work in the Model Code and Model Rules confirms that the ethics provisions were not designed to make sure that lawyers’ fees are within the reach of the average person. Under the Model Code, EC 8–3 recommended that “persons unable to pay for legal services should be provided needed services.”104 This recommendation was merely precatory and unconnected to any requirement or even suggestion that lawyers do pro bono work or accept some clients at reduced fees. Model Rule 6.1 encourages lawyers to perform fifty hours annually of pro bono work, but this service is not required.105 The fact that pro bono work is necessary at all is a tacit acknowledgment that even with fees being kept at a “reasonable” level by Model Rule 1.5 and DR 2–106, there will be substantial unmet legal needs; put another way, many people are unable to pay even reasonable fees.106 Because this principle is so limited, it does not support the idea that fees should be low in any given case on pain of discipline.
The Restatement, the American Law Institute’s latest analysis of this problem, makes clear that concern for access to the poor is makeweight, not an actual rationale for limitations on attorneys’ fees. The Restatement grandly proclaims that “the availability of legal services is often essential if people of limited means are to enjoy legal rights. Those seeking to vindicate their rights through the private bar should not be deterred by the risk of unwarranted fee burdens.”107 This is a fine aspiration, but the Restatement makes clear that there is no impropriety in “a lawyer’s insistence that a needy client pay for the lawyer’s services at the lawyer’s usual rates.”108
Courts have also suggested that fee regulation is warranted to protect the competent administration of justice,109 to uphold and preserve the integrity of the profession110 and to deter other attorneys from engaging in improper fee charging activities.111 What these concerns boil down to is not that handsome fees are to be avoided, but rather that lawyers should not take advantage of their clients. Thus, “[a] lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures,” explain the comments to the Model Rules.112 The comments also say that a low estimate should not be offered “when it is foreseeable that more extensive services probably will be required,” and that “when developments occur during the course of representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided.”113 These concerns are matters of good faith and communication which may have nothing to do with the overall amount of a fee. The Restatement is correct when it suggests that the fundamental rationale for the reasonable fee rules is that “[c]ourts are concerned to protect clients, particularly those who are unsophisticated in matters of lawyers’ com[*PG27]pensation, when a lawyer has overreached.”114 Several states’ ethical codes suggest this point directly.115
If overreaching is the problem the rules are designed to avoid, the absence of “excessive fee” cases where there is no fraud, misrepresentation or other misconduct becomes readily explainable. A lawyer who does not overreach will find it difficult to get a competent client to agree to a fee which is disproportionate, from the client’s point of view, to the value of the services the client expects to receive.116 Many disciplinary cases do not turn on application of the factors, instead imposing discipline for some identifiable act of wrongdoing, such as lying to the client, which the court concludes renders the fee unreasonable regardless of the result that would be reached through application of the factors.117
The rationale for scrutinizing the amount of fees is to determine whether the charges represent an abuse of trust by the lawyer taking advantage of the client. This is essentially a question of sophistication and information. Although bar admission requirements do restrain clients in their choice of counsel, there are so many licensed lawyers that for practical purposes there is no legal cartel; a client with a legal problem and money to pay can choose to retain any among a number of attorneys of varying costs and qualifications.118 Accordingly, if it is not worth it to a particular client to hire an expensive lawyer for a particular problem, that client does not have to do so. Because in certain respects a contract for legal services is like any other business contract, courts often permit lawyers and their clients leeway in their agreements.119
[*PG29] At the same time, the special nature of the attorney-client relationship may warrant pausing before holding that anything a particular attorney and client agree to will be enforced.120 The attorney stands in a fiduciary relation to the client,121 and there is an inherent conflict between an attorney’s desire to earn as much as possible, and the client’s desire for excellent representation at the lowest possible cost.122
The question of overreaching will not always be answerable simply by looking at the objective circumstances and the amount of the [*PG30]fee without also examining the client’s purposes. There are many reasons that a client might engage a lawyer to provide services at a cost some might regard as unreasonable. A $500,000 bill for litigating a $5000 claim, for example, might appear to be a clear case of mulcting a client. Actual client problems, however, can be much more complicated. Even looking at the matter strictly on financial terms, a client may rationally conclude that a six-figure expense is justified if losing the case could set up an adverse precedent which would cost it much more in the long run, that the collateral estoppel or regulatory effects of a loss could be catastrophic, or that it would be worthwhile to send a “millions for defense, not one penny for tribute” message to a business partner or competitor.123 Even non-financial considerations, such as the reputation of an individual or business, or the sentimental, religious or moral importance of the controversy, may justify a rational client in spending substantial sums on what appears to a third party to be a small matter.124
In a criminal case, a client also may be willing to spend a fortune to avoid conviction on a minor crime. For some clients, acquittal may be a matter of principle. Others may have governmental, political or military career plans which could be destroyed by a criminal conviction. A client may know that some prisoners return from even a short sentence infected with HIV.125
Most small legal matters will warrant nothing more than small legal expenditures. The ethical rules and principles of agency, however, assign to the client the evaluation of the goals of the representation and the expenditures justified to achieve them. Neither courts nor lawyers have the authority to apply their own values to measure [*PG31]the importance of the case and, therefore, to dictate whether a case will be litigated expensively or cheaply.126
The line of cases involving sophisticated clients makes clear that the reasonable fees rules are really aimed at preventing overreaching by achieving its opposite, the informed consent to fees. Many cases and the Restatement suggest that an arms-length fee agreed to by an experienced client is reasonable per se.127 This is not because such fees are always reasonable based on application of the eight factors; it is likely that many would arguably be unreasonable under the factors. Rather, such fees are deemed reasonable because the clients knew what they wanted and bargained for it. Similarly, courts often mention the ignorance of clients in holding fees to be unreasonable.128 The Restatement confirms the idea that what fee regulation is aimed at is the process by which the fee was set.129
The purpose of the reasonable fee rules is to prevent overreaching and these rules are applied in cases where the client has in fact been overreached. If this is the case, then what is the problem?
One problem is underachievement of the goals of the rule. The mismatch between the purpose and the text means that the majority of lawyers who want to be fair and honest in dealing with their clients receive insufficient guidance. By suggesting that what is at stake is substantive reasonableness, when it is really communication, the rules miss an opportunity to educate lawyers about desirable behavior. There are undoubtedly many surprised and angry clients in the gap between full communication and the level of overreaching which would warrant discipline.130
Another form of harm comes from overenforcement. In a pair of remarkable and influential cases, lawyers handling criminal cases were disciplined by distinguished state supreme courts for charging exces[*PG33]sive fees.131 These cases suggest that the rules hold out the prospect of serious harm to the interests of clients.
The cases are troubling for two reasons. First, application of the eight-factor test does not inevitably lead to the conclusion that the fees were excessive; to the contrary, there is a strong argument that they were reasonable. Second, application of the unreasonable fee rule in routine criminal cases may tend to make high quality counsel less available because lawyers will know that if they want to be able to charge what the market will bear, they must practice in a different field.
In 1996, in In re Fordham, the Massachusetts Supreme Judicial Court publicly censured an attorney for charging a “clearly excessive fee” in violation of Supreme Judicial Court Rule 3:07, DR 2–106.132 The highly publicized case arose out of the prosecution of defendant and client Timothy Clark for operating a motor vehicle under the influence of alcohol (“OUI”) and other charges.133 There, Clark had been stopped by the Acton, Massachusetts police in March 1989, who found a half-empty quart of vodka in his car.134 Clark, who admitted that he had been drinking,135 failed a field sobriety test and then registered a 0.10 and a 0.12 on the Breathalyzer machine at the police stationhouse, exceeding the statutory limit.136
Recognizing that they faced a strong prosecution case, Clark and his family interviewed a number of attorneys, who explained that the [*PG34]case was not promising, that Clark should plead guilty and that they would do what they could for a flat fee of three to ten thousand dollars.137 Clark was unwilling to plead guilty.138
Clark’s father met Fordham when he installed a burglar alarm in Fordham’s house.139 After some discussion, Fordham offered the services of his own small firm.140 Fordham discussed the fees for his services at the first meeting, making clear that he would bill at an hourly rate rather than charging a flat fee.141 Fordham also explained that he had never represented a client in an OUI case or in any criminal case for that matter, that he had never tried a case in the state district court system142 and that he would need to undertake a great deal of work to prepare for the case.143 He also said that he was experienced, hard-working and, according to Clark’s father, stated that he charged $200 per hour.144 The Clarks, for their part, made clear that they would not consider a guilty plea.145 The Clarks chose Fordham because of Fordham’s reputation and credentials.146
[*PG35] As he promised, Fordham proved to be hard-working. He and his associates worked 227 hours on the case and billed the client more than $50,000.147 Fordham and the disciplinary prosecutor stipulated that the hours billed actually represented the amount of time spent on the case,148 and that “Fordham acted conscientiously, diligently, and in good faith in representing Timothy and in his billing in [the] case.”149
During the course of his representation, Fordham filed four pretrial motions on Clark’s behalf.150 The district court allowed two of the four motions, one of which was described as presenting “a creative, if not novel, approach.”151 The novel motion sought suppression of the results of the Breathalyzer tests,152 based on a regulation which deemed Breathalyzer tests inadmissible unless they were “within” 0.02 of each other. Fordham produced a memorandum, supported by the affidavit of a mathematician, that a difference of 0.02 was not “within” 0.02.153 The motion was granted, the Breathalyzer results suppressed, the case was tried and Clark was found not guilty.154
Fordham billed Clark five times during the seven months the case was pending.155 Clark’s father paid Fordham a total of $10,000, but refused to make any additional payments.156 After his acquittal, the ungrateful Clark family filed a complaint with the Board of Bar Overseers (“Board”) concerning Fordham’s fee.157
What made this lawyer think he could spend this kind of time on a loser of a case? Even the court acknowledged that Fordham was a “seasoned and well-respected” Boston attorney with “impressive credentials.”158 In fact, Fordham was a magna cum laude graduate of Harvard Law School, where he was an editor of the Harvard Law Review, a Supreme Court clerk and former managing partner at Foley, Hoag & Eliot, a leading Boston law firm.159 A member of the American Law Institute, ironically, he sat on the Massachusetts Bar Association’s [*PG36]Committee on Professional Ethics and taught professional responsibility at Harvard Law School.160
Complaints against lawyers in Massachusetts are prosecuted before the Board by the Office of Bar Counsel. The chair of the Board dismissed Bar Counsel’s petition for discipline against Fordham which alleged that Fordham violated DR 2–106.161 After Bar Counsel appealed, the full Board referred the matter to a hearing committee, which recommended against discipline.162 The full Board accepted the recommendation and dismissed the petition.163 Bar counsel again appealed, this time to the Supreme Judicial Court of Massachusetts.164
The Supreme Judicial Court found that the Board erred in determining that Fordham’s fee was not clearly excessive.165 The court examined the factors listed in DR 2–106(B),166 addressing, first, factor one, which requires examining “[t]he time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.”167 Based upon the testimony of four expert OUI witnesses,168 the court determined that “the number [*PG37]of hours devoted to Timothy’s OUI case by Fordham and his associates was substantially in excess of the hours that a prudent experienced lawyer would have spent” and could not be justified.169 Moreover, the court found that Fordham’s inexperience with criminal defense matters could not justify the amount charged.170 The court cited EC 6–3 as a guiding principle that “a lawyer generally should not accept employment in any area of the law in which he is not qualified.”171
The court next compared the fee charged with the fees customarily charged in the locality for the same or similar services.172 The court determined that the hearing committee failed to make any finding with regard to this factor.173 Based on the testimony of the expert witnesses, the court determined that the fees for services in OUI cases ranged from $1000 to $35,000.174
[*PG38] Finally, the court rejected the hearing committee’s findings that the fee was not clearly excessive because Clark entered into the agreement with “open eyes,” the fee fell within a “safe harbor” and Clark acquiesced in the fee by not strenuously objecting to the bills. Despite the fact that Clark was made fully aware of Fordham’s lack of experience and need to “become familiar with the law in that area,” and although Clark had the opportunity to interview other attorneys who were experts in OUI defense, the court determined that other factors were more significant.175 For example, the court emphasized that the hearing committee found that “Clark did not appear to have understood in any real sense the implications of choosing Fordham.”176 Moreover, “Fordham did not give Clark any estimate of the total expected fee or the number of $200 hours that would be required.”177 Thus, the court determined that Clark did not enter into the arrangement with “open eyes.”178
Critically, the court held that client consent was irrelevant to the question of whether the fee was reasonable.179 “Bar counsel notes, and we agree, that ‘[t]he test as stated in . . . DR 2–106(A) is whether the fee “charged” is clearly excessive, not whether the fee is accepted as valid or acquiesced in by the client.’”180
If Fordham had been up on the latest Massachusetts cases, he might have thought he had little to worry about—just a few years before, the Supreme Judicial Court refused to interfere with a $975,000 fee in an “open and shut” personal injury suit.181 In that case, the plaintiff’s injury was catastrophic, liability undisputed and the defendant, Browning-Ferris Industries, financially capable of satisfying a judgment of any amount. The law conditioned a fee award on court approval, and the trial court refused to sanction a seven figure fee when the $3,000,000 settlement had been achieved quickly; $695,000, it said, was more appropriate.182 The Supreme Judicial Court reversed, holding that a negotiated fee was not subject to judicial interfer[*PG39]ence.183 Notwithstanding this precedent, Fordham found himself sanctioned.184
In In re Kutner,185 the Illinois Supreme Court publicly censured an attorney for charging an excessive fee. Kutner involved facts somewhat similar to those in Fordham.186 Mr. Kutner agreed to consult with William Fisher, who had been charged with battery by his sister-in-law on August 14, 1973.187 Fisher had a special interest in hiring Kutner; apparently, Fisher’s mother was aware of Kutner’s reputation.188 Fisher consulted with Kutner on August 28, 1973, for a $250 fee.189 Kutner explained that he would charge a $5000 fee, in advance, for the whole case.190 This was more than Fisher could afford to pay.191 A few days later, however, Fisher managed to borrow the money and Kutner took the case.192 Kutner sent a colleague to attend a preliminary court date.193 In court, the sister-in-law appeared and asked the judge to drop the charges, and the judge obliged.194
Fisher regretted paying so much and sought to recover part of his fee, but Kutner declined.195 A hearing board evaluating a complaint by the Illinois Attorney Registration and Disciplinary Commission(“ARDC”) recommended that the complaint be dismissed, but the Review Board disagreed, as did the Illinois Supreme Court, and Kutner was found liable for charging an excessive fee.196 The ARDC’s expert proposed that a fee of $750 to $1250 would have been reasonable, that it was the custom to return a portion of the fee if the case [*PG40]was disposed of early and that the case was not particularly complex.197
Justice Clark dissented:
While it is our duty to scrutinize lawyer-client dealings where an injustice has been done, I do not think we should pierce the veil of lawyer-client relations where no fraud or other wrongdoing has been shown. A client who voluntarily agrees to pay what he thinks a lawyer’s services are worth should not be heard to complain when, after the lawyer has begun to prepare the case, the charges are dismissed. My opinion might be different had coercion, overreaching or deception been shown here. But those elements simply are not present.198
The problem, according to Justice Clark, is that the value of legal services is difficult to measure.199 “The majority has engaged in a subjective process by which it places an arbitrary value on legal services . . . its opinion says that a lawyer can voluntarily enter into an agreement with a client, based on the mutual agreement of the parties as to the worth of attorney’s services, only to be second-guessed later on.”200 Accordingly, the question should be left to individual clients.201 “The negotiation of a fee should be left to the parties. A person may be willing to pay more for the services of a particular attorney at a particular time, when, however, under different circumstances, the attorney’s time would not be as valuable.”202
Just as in the Fordham case, there are reasons why a rational client would be willing to pay a premium price for the services of an attorney. Indeed, Kutner’s record may be even more distinguished than Fordham’s. Kutner entered the University of Chicago at fifteen years of age, clerked for Clarence Darrow, studied under Harold Lasswell and received his law degree at age twenty-one.203 He is credited with winning the release of more than 1000 prisoners around the world in the course of his career,204 including an African-American man who [*PG41]spent twenty years in prison after being framed for rape by the Ku Klux Klan.205 A one-time member of the faculty at Yale Law School,206 Kutner wrote numerous books and articles about various aspects of law,207 and represented notables including Ernest Hemingway, Pope Pius XII, the Dalai Lama, Ezra Pound, and Cardinal Joseph Mindszenty, prisoner of the Hungarian Communist regime.208 Kutner was nominated several times for a Nobel Peace prize and co-founded Amnesty International.209 He also developed the concept of the living will.210
In Kutner and Fordham, the decisionmakers themselves were divided on whether any impropriety had occurred, suggesting that these were close cases.211 Indeed, it is not difficult to apply the factors and reach the conclusion that the fees were entirely justified, at least assuming that the reputation and freedom of the defendants were highly valuable.
In both cases, factor four, the amount involved and the results obtained, weighs in the lawyers’ favor. The result was a complete victory for both clients on the criminal charges. If the amount involved is read as the importance of the case, then what is at stake is being deemed a criminal, a circumstance which could have significant financial, social, emotional and physical consequences for the clients. Additionally, factor seven, the experience, reputation and ability of the lawyer performing the services, justifies a high fee. It is hard to imagine two lawyers with better credentials and experience, if not necessarily in criminal law, at least in high-stakes litigation. Furthermore, factor three, the fee customarily charged in the locality for simi[*PG42]lar services, weighs in favor of the lawyers if the “similar services” are excellent litigation assistance in large, high-cost cities like Boston and Chicago. In that instance, the fees are entirely reasonable.
Factor one, the time and labor required, the novelty and difficulty of the legal questions involved and the skill requisite to perform the legal services properly, also arguably weighs in Fordham’s favor, given that it was necessary for Fordham to investigate an area of law which had not received the kind of expert scrutiny he proposed to put into it.212 Factor one does not cut in Kutner’s favor to the same extent. Kutner, however, was working on the basis of a flat fee. In this way Kutner’s conduct is supported by the Restatement, which explains that the reasonableness of the fee must be evaluated in light of the agreement and expectations of the parties, including their allocation of risk. “A contingent-fee agreement . . . allocates to the lawyer the risk that the case will require much time and produce no recovery and to the client the risk that the case will require little time and produce a substantial recovery. Events within that range of risks, such as a high recovery, do not make unreasonable an agreement that was reasonable when made.”213 Similarly, a flat fee allocates to the lawyer the risk that the case will take much time, in exchange for a sum certain, and allocates to the client the risk that the case will take little time, in exchange for assurance of representation for the entirety of the case.
This conclusion is supported by the Illustration to Section 46, which involves “Bank Clerk,” charged with embezzlement, represented by “Lawyer” for a flat $15,000 fee. If “[t]he next day another employee confesses to having taken the money, and the prosecutor (not knowing of Lawyer’s retention by Bank Clerk) immediately drops the charges against Bank Clerk,” some refund is due.214 On the other hand, the mere fact that the case settles quickly pursuant to a guilty plea “would not render unreasonable an otherwise proper $15,000 flat fee. A negotiated disposition without trial is a common event that parties are assumed to contemplate when they agree that the lawyer will receive a flat fee.”215 In short, among the various permitted sys[*PG43]tems of charging are hourly, contingent and flat fees. They are acceptable if fair when made, unless some unexpected event vitiates the agreement. Just as the lawyer is not permitted to look back from the conclusion of the representation and say “I wish I had charged by the method which gave me the greatest recovery,” the client may not insist that the only reasonable billing method is the one which, from hindsight, results in the lowest charge.216
In Kutner and Fordham, the clients were aware of available, less expensive alternatives. The courts seem to have said that the clients had no choice but to take them, or at least that Kutner and Fordham should not have charged much more than the cheap lawyers on pain of discipline. The major conceptual flaw in the opinions is that they fail to recognize that lawyers differ in ability, that better lawyers can sometimes achieve better results, and that better lawyers sometimes cost more than average ones.
[*PG44] The United States Supreme Court has rejected virtually every premise upon which the Kutner and Fordham decisions rest. It could be argued that there was no need to hire leading lawyers, because average lawyers would have done just as well. In 1963, the Court in Gideon v. Wainwright answered this by explaining that “there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses.”217 Of course, the best lawyer is not always the most expensive. Yet, the Supreme Court in 1989 in Caplin & Drysdale v. United States recognized that “the quality of a criminal defendant’s representation frequently may turn on his ability to retain the best counsel money can buy.”218 Therefore, the idea that there is some relationship between the amount the lawyer is being paid and the quality of the representation, though certainly not true in every case,219 is well recognized.
The courts in Fordham and Kutner insisted that the cases were routine.220 Arguably, the routine nature of the actions should limit the permissible fee. The Supreme Court has recognized, however, that a relatively small penalty does not necessarily mean that the legal issues in the case are simple. In Argersinger v. Hamlin,221 the Court recognized a right to counsel even in misdemeanor cases where imprisonment was possible, rejecting the notion that counsel was unnecessary in cases likely to be simple.222
[*PG45]We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more. . . . The trial of vagrancy cases is illustrative. While only brief sentences of imprisonment may be imposed, the cases often bristle with thorny constitutional questions.223
Many cases are intrinsically neither routine nor complex; much depends on whether the lawyers involved find the complexities and novelties which turn a routine loser into a viable case.224 Of course, an OUI, an assault or even a drug trafficking charge may well be viewed as routine from the perspective of a trial or appellate judge who participates in disposing of dozens or hundreds of such cases per year. The fact that the system treats some kinds of criminal cases as routine does not mean that it is either strategic or mandatory for defendants and their attorneys to do the same.225
The Supreme Court is correct in the assertion that the quality of lawyering makes a difference. Many courts have recognized that “[l]awyers are not fungible.”226 Those in the best position to know, law firms and sophisticated individuals, are willing to pay premium prices to hire firms such as Covington & Burling, or Skadden, Arps, Slate, Meagher & Flom, or Foley, Hoag & Eliot; those firms in turn willingly pay premium prices to hire the individual attorneys they deem most promising, even though in both instances there are cheaper alterna[*PG46]tives. As Professor Hazard put it, “in high level law practice relatively small differences in competence can make a substantial difference in the results achieved for a client, just as small differences in ability make a big difference in result in competitive sports.”227 Part of the difference may be “snob appeal,” and some clients may irrationally pay more than necessary.228 A large part of the explanation, however, is that good “[l]egal services cost a lot because good legal services are in high demand and limited supply.”229
Excellence does not necessarily mean having a great deal of experience in a particular area of the law. Of course the ideal lawyer is [*PG47]one who is exceedingly brilliant and specializes in handling precisely the type of matter in the very court where the action is pending. If this lawyer is unavailable, few sensible clients would choose an experienced plodder over the brilliant generalist; it is widely recognized that the most important factor which makes a lawyer excellent is good judgment.230 As the Comments to the Model Rules explain: “Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.”231 All other things being equal, it would be foolish to pass over a lawyer who had the knack of finding a way to win in favor of one who was very experienced but had an average record of success. As Dean Anthony Kronman lyrically explained:
The purpose of a legal education is not to produce experts, as many nonlawyers wrongly believe. It is to train law students, as the saying goes, to think like lawyers. . . . The clever lawyer, who possesses a huge stockpile of technical information about the law and is adept at its manipulation, but who lacks the ability to distinguish between what is important and what is not and who cannot sympathetically imagine how things look and feel from his adversary’s point of view, is not a good lawyer. He is, in fact, a rather poor lawyer who is more likely to do his clients harm than good. The good lawyer—the one who is really skilled at his job—is the lawyer who possesses the full complement of emotional and perceptual and intellectual powers that are needed for good judgment, a lawyer’s most important and valuable trait.232
Dean Kronman’s view is supported by a great deal of evidence. Many of the best lawyers are not narrow experts specializing in repeated treatment of routine matters, but are generalists, or have a fairly [*PG48]broad specialty. For example, the Solicitor General’s office is composed of generalists, and every distinguished judge by necessity has worked on a variety of subject matter areas. Perhaps more importantly, many or most lawyers who might plausibly be on a list of the best in modern American history—Floyd Abrams,233 Louis Brandeis,234 Johnnie Cochran,235 Clarence Darrow,236 John W. Davis,237 Joseph Flom,238 Ruth Bader Ginsburg,239 Joe Jamail,240 Arthur Liman,241 [*PG49]Thurgood Marshall,242 Gerry Spence,243 Lawrence Tribe,244 Edward Bennett Williams,245 Charles Alan Wright246—are or were generalists, or had fairly broad specialties like litigation; few were specialists in some narrow, technical field where they handled a high volume of repetitive cases.247 Thus, telling certain clients that their class excludes them from access to high-priced legal talent is not necessarily the product of a wise and benign paternalism, preventing the poor from frittering away their savings on trifles. Instead, it can deny them access to some of the most sophisticated and successful practitioners.
In addition to the quality of the attorney, another major factor in the cost of legal services is the level of effort the lawyer puts into it. For example, even a nationally famous lawyer may be able to offer modestly priced representation in a large and complex matter if that lawyer’s work is limited, say, to writing a letter to the adversary in an attempt to resolve the dispute. Performing complete discovery and taking that same case to trial might cost a hundred or a thousand times more. While any lawyer can quickly and cheaply lose even the most difficult case, finding a way to win a difficult case takes time, which costs money. In Fordham, the attorneys the client first contacted proposed to lose quickly and cheaply; the so-called “specialists” who quoted low fees viewed the case as a loser and advised the defendant to plead guilty.248 This may be a reasonable choice for some defendants, but the Fordham decision means that it is the only choice.
There is another approach to litigation, one which involves leaving no potentially helpful fact uninvestigated, no promising legal angle unresearched. As Professor Hazard put it,
[i]f . . . legal services . . . are hand-tailored to individual situations, they will be expensive for the same reason that surgery, portraiture, custom haberdashery, and haute cuisine are expensive. If legal services can be purchased in a form that is standardized, they can be made cheaper, for the same reason that fluoride dental therapy, rack suits, and McDonald’s hamburgers are inexpensive.249
An excellent lawyer spending a lot of time on a case has a better chance of winning than a lawyer of average ability spending less time, who in turn is likely to do better than a bargain basement lawyer trying the case by the seat of the pants.250
[*PG51][*PG50] The classic example of one model of law practice is civil practice at elite law firms for corporate clients; able and energetic attorneys work tirelessly to achieve the goals of their clients and are well-compensated for their labors. An elite firm “charges top-dollar prices to corporations for high-quality, custom service.”251 Firms engage in “aggressive pursuit of client interests.”252 In sum, “the large firm expresses the attempt to combine status, expertise, and efficiency in order to provide business with the highest quality legal representation.”253 As a result, their clients can expect the best possible results.
By contrast, at its worst, criminal practice may offer none of these benefits to clients. For decades, criminal defense has not been regarded as a prestigious or desirable practice area.254 It also tends not to pay well. This may mean that the most promising new lawyers choose not to go into the field; those at the low end may be “recent law school graduates looking for experience, and . . . more ‘experienced’ but marginally competent attorneys who need the income.”255
Moreover, the circumstances of most criminal defendants do not lend themselves to satisfying relations with their lawyers; “[c]riminal defendants, except for the organized and white-collar crime elites, lack the money, status or power that makes some lawyers listen to cli[*PG52]ents.”256 That is, they are susceptible to being strong-armed by their lawyers.257 Accordingly, although as a technical matter blue-collar criminal defendants are entitled to the same zealous advocacy as mobsters, white-collar defendants or people with large civil cases, clients who can offer their lawyers little or nothing in the way of fees often get what they pay for.258
Further, “[m]ost defense lawyers practice under fee arrangements—a lump sum fee paid in advance, or a modest salary from a public defender’s office—that provide smaller incentives to diligence than hourly or contingent fees.”259 One criminal lawyer reports that “a significant percentage of cases can be successfully defended with adequate effort,” but that large numbers of clients may make this impossible.260 The deferential test for ineffective assistance of counsel upholds convictions which follow even extremely poor defense lawyering.261 As a consequence, even terrible lawyering is judicially acknowledged as acceptable.
The typical criminal defendant is represented by a mediocre lawyer, who is being paid little for the case. Because the client has no economic leverage, the lawyer may have little reason to consult with the client, and may be willing to spend little time designing and exe[*PG53]cuting the strategy pursuant to which the case can best be defended. As a consequence, cases which could have been won are lost. It is hard to blame Clark and Fisher for refusing to hire lawyers under these circumstances, instead pursuing other alternatives which, they correctly judged, held out greater prospects for success.
Fordham was sanctioned for employing the customs of civil practice in a criminal case. He used the honorable legal techniques of diligence and creativity, and as a result came up with a novel approach which defeated a very strong prosecution case. In exchange for his best efforts, he charged a substantial hourly wage. The winning legal claim was based on nuances of OUI law, with which one might hope OUI specialists would be familiar. Consistent with the minimalist lawyering, however, which sometimes occurs in criminal cases, none of the supposed specialists had even heard of the argument in the context of their own practices.262 Clark correctly concluded that Fordham, with absolutely no experience, was the best OUI lawyer in Boston because he was smart and would try to win the case.
The court faulted Fordham for using an elite civil firm approach in a criminal case, explaining: “Fordham’s inexperience in criminal defense work and OUI cases cannot justify the extraordinarily high fee. It cannot be that an inexperienced lawyer is entitled to charge three or four times as much as an experienced lawyer for the same service.”263 What the court failed to mention at this point was that all of the OUI specialists in the case considered the case a loser.264 The lawyers Clark consulted advised him to plead guilty. The prosecution and defense experts at the disciplinary hearing said that if they were handling the case, they would have charged much less, would not have made the winning argument and would have expected to lose the case and see Timothy Clark convicted.265 Since losing quickly and cheaply was the way the lawyers Clark consulted would have chosen to handle the case, that is what the court insisted Fordham should have done, under pain of sanction.
[*PG54] The criminal justice system may customarily treat OUIs and other criminal matters as routine, in Professor Anthony Alfieri’s formulation, as part of a “formulaic and mechanical convention devised to process individual cases on a mass scale.”266 But the usual treatment should not mean that clients are required to accept minimally adequate assistance if they have a choice.
From the client’s perspective . . . the matter is hardly routine. Certainly in the context of a criminal prosecution, even at the misdemeanor level, matters should not be treated as routine. Does the fact that a lawyer has handled twenty worthless check misdemeanor cases one day mean that the twenty-first is entitled to only a perfunctory handling? . . . [I]f clients are presented with the choice of having only minimally adequate service or full service, clients will presumably choose full service.267
The court’s opinion suggested that it did not understand how the process of winning works, that is, for example, the process of finding novel legal arguments. The court cited a witness who said that the total time spent on the case, up to trial, including finding and briefing the Breathalyzer argument should have been twenty to thirty hours. But a lawyer trying to win a case rather than just going through the motions cannot skip straight to the winning argument. As Thomas Edison said, “[g]enius is one percent inspiration and ninety-nine percent perspiration”;268 in order to find the winning point, the lawyer must identify a number of possible issues, research each one of them by reading cases and investigating the facts, and come to a conclusion about which are the most promising. No lawyer in the world could have picked up the O.J. Simpson case file, flipped through it for five minutes, and announced “try to get Chris Darden to make him put on the bloody gloves—that’s how to win this case.” That is just not how law—or any other creative endeavor—works. Litigation associates in large firms can bill 2500 or 3000 hours per year or more. They work hard, for the most part, not because they are unintelligent or [*PG55]want to run up the client’s bill, but because they are trying to find a way to win. How remarkable that the Supreme Judicial Court held that an “inexperienced” lawyer who could win is not entitled to charge three or four times as much as “experienced” lawyers who explained from the first that they could not win, or, what the court really held: that a blue-collar client is simply not entitled to hire a lawyer who has the determination and ability to win a case, that they must hire the cheaper lawyer who has promised to lose.
Disciplining excellent lawyers like Kutner and Fordham will reinforce the status quo. In part these decisions, principal cases in several leading texts,269 do this by sending a message that the criminal problems of ordinary people are unworthy of the attention of elite practitioners. More importantly, good-faith fees in other practice areas are not regulated through discipline as in the criminal area. In other areas, fees and standards are permitted to change over time. It may be, for example, that changes in tax law, family law and available legal vehicles mean that competent preparation of an estate plan for a family in 1999 will be much more complicated, and much more expensive, than would comparable advice in 1979. Practitioners in that field who offer more, do more, and charge more have no reason to fear discipline. Cases like Fordham help ensure that fees in criminal cases stay low, and that the minimalist customs of criminal representation do not change. An attorney who goes beyond bare-bones lawyering in a criminal case risks sanctions. This cannot be the intent of a set of rules designed to guide the ethical behavior of lawyers.270
[*PG56] Attorneys who know that they will be precluded from receiving adequate compensation may refrain from undertaking criminal cases, and, “[o]ver the long haul, the result of lowered compensation levels will be that talented attorneys will ‘decline to enter criminal practice. . . . This exodus of talented attorneys could devastate the criminal defense bar.’”271 Moreover,
[t]he right to privately chosen and compensated counsel also serves broader institutional interests. “The virtual socialization of criminal defense work in this country” that would be the result of a widespread abandonment of the right to retain chosen counsel . . . too readily would standardize the provision of criminal-defense services and diminish defense counsel’s independence. There is a place in our system of criminal justice for the maverick and the risk taker and for approaches that might not fit into the structured environment of a public defender’s office, or that might displease a judge whose preference for nonconfrontational styles of advocacy might influence the judge’s appointment decisions. . . . There is also a place for the employment of “specialized defense counsel” for technical or complex cases. . . . The choice of counsel is the primary means for the defendant to establish the kind of defense he will put forward.272
[*PG57]The low quality of counsel and low fees will reinforce each other. As good lawyers disdain criminal practice, the average low quality may lead courts and legislatures to believe that defense lawyers deserve at most low fees. As criminal defense lawyers receive low fees, future lawyers will have even less incentive to enter the area. These unfortunate circumstances may not entirely be the fault of the Illinois and Massachusetts supreme courts, but there is no reason that courts should embrace them as positive law.
The Illinois and Massachusetts supreme courts have explained to blue-collar criminal defendants that they may not “bid against other [clients] for the services of the ablest and most experienced attorneys, whose expertise may make the difference between success and failure”;273 instead, such defendants are required to hire bargain basement lawyers even if they want and can manage to pay more expensive ones, and even if the lack of expert counsel means they will be convicted of crimes. It is ironic that the leading decisions on unreasonable fees are criminal cases, because depriving defendants of counsel of choice in this particular context is not just unwise and unfair, it is unconstitutional.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.”274 This clause is commonly associated with the interpretation guaranteeing indigent defendants the right to appointed counsel, recognized in capital cases by the United States Supreme Court’s decision in Powell v. Alabama.275 Although there exists [*PG58]“neither in the Congress which proposed what became the Sixth Amendment guarantee . . . nor in the state ratifying conventions . . . any indication of the understanding associated with the language employed,” it is apparent that the original guarantee was aimed at “assuring that a person wishing and able to afford counsel would not be denied that right.”276 Indeed, “[t]here is considerable doubt that the Sixth Amendment itself, as originally drafted by the Framers of the Bill of Rights, contemplated any guarantee other than the right of an accused in a criminal prosecution in a federal court to employ a lawyer to assist in his defense.”277 The Sixth Amendment was intended to end the English judicial practice of refusing “to permit prisoners in felony cases to obtain the assistance of counsel, retained counsel certainly included.”278
The Supreme Court has recognized the right to hire counsel in several key decisions. In Powell, the Court noted that “[i]t is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.”279 Similarly, in Chandler v. Fretag, the Court acknowledged the “well established” distinction between the right to appointed counsel and the right to obtain one’s own counsel.280 The Court determined that, upon a criminal defendant’s request for a continuance to obtain counsel, “[r]egardless of whether petitioner [*PG59]would have been entitled to the appointment of counsel, his right to be heard through his own counsel was unqualified.”281
More recent cases also make clear that defendants have a Sixth Amendment interest in hiring counsel of their choice.282 In 1988, in Wheat v. United States, the Court recognized that “the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment.”283 To be sure, the Court held that in some circumstances, a defendant could be denied the right to be represented by the desired counsel.284 The Court reasoned that the purpose of the guarantee of assistance of counsel under the Sixth Amendment is to ensure that criminal defendants receive a fair trial and the focus of the inquiry is on the adversarial process, not necessarily on the accused’s relationship with his lawyer.285 The Court noted that:
The Sixth Amendment right to choose one’s own counsel is circumscribed in several important respects. Regardless of his persuasive powers, an advocate who is not a member of the bar may not represent clients . . . in court. Similarly, a defendant may not insist on representation by an attorney he cannot afford or who for other reasons declines to represent the defendant. Nor may a defendant insist on the counsel of an attorney who has a previous or ongoing relationship with an opposing party . . . .286
Thus, the Court concluded that a criminal defendant did not have a Sixth Amendment right to employ counsel with a conflict of interest, even if the client was willing to waive the conflict for purposes of the case.287
Another recent case, Caplin & Drysdale v. United States,288 strongly suggests that fee limits are unconstitutional. The case addressed [*PG60]whether the Sixth Amendment prevented the government from forfeiting a defendant’s assets, thereby depriving him of the ability to secure counsel of choice.289 Throughout the litigation, all of the courts seemed to assume that defendants could spend their own funds for their defense.290 A panel of the Fourth Circuit Court of Appeals explained that there is a
right—concededly qualified—to counsel of one’s choice. This means, in general, a right to retain private counsel of one’s choice out of one’s private resources, and up to the limit of those resources, free of government interference. Thus, while it has presumably never been attempted, it seems clear that any legislative attempt by general rule directly to put a cap on what persons accused of crimes could pay privately retained defense counsel, or to dictate the choice of private counsel by special qualification, or however, would be unconstitutional.291
The Fourth Circuit en banc concluded that asset forfeiture did not violate the Sixth Amendment, but agreed with the panel that the right to counsel included the right to spend one’s own money to hire counsel of choice.292 The Fourth Circuit noted that:
As stated by the . . . panel opinion, [the right to counsel] “means, in general, a right to retain private counsel out of one’s private resources, free of government interference.” . . . The government could not, for example, simply restrain funds to which it claims no legal entitlement so as to force a defendant to accept appointed counsel.293
The court recognized that preventing defendants from spending their own funds on counsel would implicate the Sixth Amendment, even if defendants could constitutionally be prevented from spending money which belonged to someone else.294 Thus, the court en banc [*PG61]agreed with the panel that defendants had the right to spend their own money on a defense in a criminal case without limit.295
The Supreme Court affirmed the decision of the en banc court, in an opinion which seemed to accept the proposition that defendants have the right to spend their own money for counsel.296 The Court noted that the government did not “deny that the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds” and emphasized that “[t]he forfeiture statute does not prevent a defendant who has nonforfeitable assets from retaining any attorney of his choosing.”297 In holding that asset forfeiture did not implicate the Sixth Amendment, the Court explained “[w]hatever the full extent of the Sixth Amendment’s protection of one’s right to retain counsel of his choosing, that protection does not go beyond ‘the individual’s right to spend his own money to obtain the advice and assistance of . . . counsel.’”298 Many other cases suggest that defendants have the right to spend their own money on counsel.299
[*PG62] In short, the California Supreme Court seems to have correctly stated the law when it explained:
The state should keep to a necessary minimum its interference with the individual’s desire to defend himself in whatever manner he deems best, using any legitimate means within his resources and that desire can constitutionally be forced to yield only when it will result in significant prejudice to the defendant himself or in a disruption of the orderly processes of justice unreasonable under the circumstances of the particular case.300
Absent some legitimate purpose that would be served by disqualifying a particular lawyer from participating in a particular case, the Sixth Amendment guarantees a criminal defendant the right to retain counsel of choice.301 The situations in which the courts have limited [*PG63]counsel of choice involved efforts to ensure that defendants receive qualified counsel, not to deprive them of it, or to ensure that measures necessary to protect the orderly decisionmaking process exist, such as denying continuances.302 There is no justification for denying a defendant the ability to employ retained, licensed, conflict-free and available counsel, simply because the lawyer is skilled enough to command a high wage.303
Finally, if fee limitations are consistent with the Sixth Amendment, that would mean that the rich have a greater right to counsel than the poor.304 It is unfortunate that this situation is true as a practical matter, but if the fee cap cases are correct and the ethical codes are a filter through which the Sixth Amendment must be read, then favoritism for the rich becomes a matter of positive law. If the ethical codes are a filter, a rich person can hire Roy Black on an OUI case, because the factors of “importance” and “ability to pay” will justify a higher fee. If all other facts, however, are the same except that the defendant is a middle- or working-class person who mortgages their home or signs a note to hire Roy Black, Roy Black has to say no, because of the risk of being found guilty of an ethical violation for accepting a large fee from such a person. The state, which is trying to brand one of its people as a criminal, has no business instructing them not to fight back too hard, to say “your life, your freedom or your reputation are unworthy of the best defense you can mount.”
[*PG64] In 1985, in Walters v. National Association of Radiation Survivors,305 the Supreme Court held that Congress could constitutionally restrict attorneys’ fees in connection with application for certain veteran’s benefits to ten dollars. At first blush, Walters seems to support the notion that the right to pay a fee may constitutionally be restricted; the Court’s reasoning, however, in fact suggests that fee limitations in the criminal context would be unconstitutional.306 A majority of the Court determined that the fee limitation did not violate the Due Process Clause because higher fees would frustrate the congressional goal of ensuring that veterans received the bulk of the awards, and would complicate a process intended to be informal and nonadversarial.307
Justice Stevens powerfully argued in dissent that an “individual’s right to spend his own money to obtain the advice and assistance of independent counsel,” at least in disputes with the Government, is protected by the Due Process Clause.308 But whether Walters is correct, the Court recognized that its reasoning would not apply in the criminal context, because “no one would gainsay that criminal proceedings are adversarial in nature.”309 The Court took pains to distinguish cases decided under the Sixth Amendment.310 Moreover, the majority in Walters concluded that the right to counsel could lawfully be restricted in the veteran’s benefits context; this determination was necessary only because the Court recognized that a fee cap was a material infringement on the ability to obtain counsel.311 Because the Court in Walters recognized that a fee cap constitutes an interference with [*PG65]counsel, it supports the idea that caps will be impermissible in a situation where the right to counsel exists with full force.312
One commentator has questioned the right to counsel of choice, suggesting that tactical use of disqualification motions and of asset forfeiture, done with the purpose of “disrupting” the relationship between attorney and client was not found by the Court to be “antithetical to the Sixth Amendment right to counsel.”313 Although the Court upheld the particular actions at issue in those cases, it did not so completely undermine the right to counsel of choice that the opinions recognize.314 The decisions in Wheat and Caplin & Drysdale suggest that manipulation of forfeiture and disqualification for tactical advantage could be improper.315 In Wheat, the Court explained:
[P]etitioner of course rightly points out that the Government may seek to “manufacture” a conflict in order to prevent a defendant from having a particularly able defense counsel at his side; but trial courts are undoubtedly aware of this possibility, and must take it into consideration along with all of the other factors which inform this sort of a decision.316
Similarly, in Caplin & Drysdale, the Court acknowledged the possibility of forfeiture actions aimed at interfering with counsel, but said “[c]ases involving particular abuses can be dealt with individually by the lower courts, when (and if) any such cases arise.”317
A client facing criminal charges or other legal difficulties he or she deems serious should be free to pay his or her lawyer, from his or her own funds, whatever fees he or she chooses, even in situations where a given disciplinary board might feel the life, liberty or property at stake is worth less than the fee involved. But the principle of client choice or freedom of contract in general does not mean that the area should be entirely unregulated. A free market has many advantages, but so do certain checks on the market, such as requiring [*PG66]training and licensing of those who would practice law, and protecting unsophisticated clients from overreaching attorneys.318
The rationale for the reasonable fee regulation is really to ensure that clients understand their choices before they make them and that clients buy the services they need, but no more.319 The ethical rules do not carry out this purpose well. Timothy Clark may have reason to complain about the financial arrangements between him and his lawyer, because it may well be that he did not give informed consent in the full sense of the term to the fee arrangement.320 Fordham, however, violated no rules regarding client communication. The Model Rules requires certain disclosures to the client. Model Rule 1.5(b) provides that “[w]hen a lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation”;321 under the Model Code, a similar requirement was merely a suggestion.322 At or near the beginning of the representation, Fordham did explain to the client the basis or rate of the fee—an hourly rate of $200 per hour.
Although Fordham did everything the rules required, in retrospect, Clark might have expected more. Fordham, for his part, might [*PG67]wish that he had offered a description of the available alternative strategies, their advantages and disadvantages, and offered some idea about what the various approaches would cost before he chose one or decided to approach another attorney.323 Informed agreement must take into account the knowledge and experience of the client. Therefore, although Clark had a sense of what other attorneys might charge for the representation, Fordham would be required to explain to a less sophisticated client that choosing him would be more expensive. On the other hand, once a formerly unsophisticated client has become sophisticated through consultation with counsel, there is no reason not to honor client decisions about the representation.
Achieving informed agreement would not require a great deal more than the communication and disclosure that the rules already require, only earlier, and with price tags attached. Under the current rules, lawyers are required to “abide by a client’s decisions concerning the objectives of representation.”324 The rules provide that “[a] lawyer may limit the objectives of the representation if the client consents after consultation.”325 Accordingly, under existing law, the client decides what the goal of the case will be. The client also already holds the purse strings; lawyers “should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.”326 Finally, the lawyer is already obligated to think about the case and consult with the client about how it will be handled. The lawyer must “explain a matter to the extent reasonably necessary to permit the client to make informed decisions.”327 If the substance of the conversation occurs at the beginning of the representation and the lawyer offers some kind of reasonable estimate of the price of each option, the client will have an informed basis upon which to proceed. In addition, a lawyer must “keep a client reasonably informed about the status of a matter,”328 which could comfortably be read to require a lawyer to report material changes in an estimate.
[*PG68] One malpractice treatise recommends that attorneys engage in detailed fee discussions with prospective clients,329 and that the agreements be reduced to writing.330 If shrewd attorneys will have this discussion in order to protect themselves from fee disputes and malpractice claims, there is no reason not to expect ethical attorneys to have this discussion for the benefit of their clients.
One possible rule would look like this:
Proposed Model Rule 1.5(a). A lawyer shall not:
(1) Charge or collect a fee which is prohibited by law;
(2) Charge or collect a fee without permission of any court or other authority from whom permission is required by law, or in an amount that is more than authorized by the court or other authority;
(3) Charge a fee which exceeds or is otherwise in material breach of the fee agreement with the client; and
(4) Charge or collect a fee without reasonable consultation with the client at the beginning of the representation and within a reasonable time after any material change. Consultation shall include the amount of the fee if it is fixed, or the manner in which it will be calculated if it is not; the alternative means by which the matter could be handled; the risks and benefits of the alternatives; general estimates as to the costs of the alternatives; and any other matter which, under the circumstances, is reasonably necessary to permit the client to make an informed decision. If the fee is not fixed, the lawyer shall make clear that any general estimates are non-binding and subject to revision.
[*PG69](5) This rule does not modify any authority granted courts by law to regulate fee agreements and fee awards.
Sections one through three of this proposed Model Rule restate existing law.331 The final sentence makes clear that the rule does not repeal the judiciary’s traditional authority to reduce attorney’s fees in cases where circumstances make strict enforcement unfair, but where discipline is not warranted. Section four is the heart of the proposal. The first paragraph invokes the concept of consultation, which is already defined by the current Model Rules as “communication of information reasonably sufficient to permit the client to appreciate the significance of the matter in question.”332 Section four essentially asks lawyers to attach a price tag to advice they are already required to give.333
Jurisdictions should consider effectuating the goal of informing clients with even more powerful prophylactics, such as requiring lawyers to advise clients that it is generally prudent to speak with more than one lawyer, just as doctors urge patients to seek a second opinion before making a major decision. There is even precedent in the rules for requiring lawyers to advise clients to seek representation before entering into a transaction with a client; perhaps agreements to large fees should be negotiated by independent counsel.334 Although no business is eager to tell potential customers to think about taking their patronage elsewhere, there is no reason not to expect attorneys to take reasonable steps to prevent clients and potential clients from making unwise decisions because of their inexperience with legal matters. Moreover, these steps will protect the agreements that result because it will suggest that they were made knowingly.
The proposed reform will not take money out of clients’ pockets; there is no suggestion that the traditional power to cut fees without imposing discipline be eliminated. Courts would retain their current power to reform attorney-client contracts. Rather, what would be lost [*PG70]is the formal disciplinary rule, the black letter principle that attorneys’ fees be “reasonable.” Critics of the profession might point to such a change and say: “I told you so. There is not even a pretense, lawyers don’t even claim their fees should be reasonable.” If abandoning the reasonable fee rules is problematic from a public relations perspective, it holds the promise of substantive benefits for clients. Although nothing proposed here will eliminate entirely the frustration some clients have with the legal system or client surprise at bills, it may help. More information will cut off disputes before they happen by helping to ensure that clients hire lawyers with their eyes open, and make better choices about their cases. The profession should be willing to acknowledge the truth about the weakness of the reasonable fee rules and reform them for the benefit of clients.