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Legal Ethics and Malpractice Reporter

Contents

  • FEATURE ARTICLE: Lawyer Fee Basics: Reasonableness
  • NEW AUTHORITY: Useful References on Legal Fees
  • ETHICS & MALPRACTICE RESEARCH TIP: New Articles Drawn from The Current Index of Legal Periodicals
  • BLAST FROM THE PAST: A Comparison of Kansas and Missouri Attorney Ethics Statutes from 1820–1855

EDITED BY: Professor Mike Hoeflich

PUBLISHED BY: Joseph, Hollander & Craft LLC

June 30, 2022

FEATURE ARTICLE

Lawyer Fee Basics: Reasonableness

U.S. State codes of professional responsibility based on the Model Rules generally have a fundamental requirement that a lawyers’ fees be reasonable. In Kansas, KRPC 1.5(a) states:

(a) A lawyer’s fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee include the following: 

(1) the time and labor required, the novelty and difficulty of the 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.

Missouri Rule 4-1.5(a) states:

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the 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.

The only differences between the two states’ basic rules is that Kansas requires fees to “be reasonable” and that Missouri requires that fees “not be unreasonable” and that Missouri explicitly states that expenses charged also not be “unreasonable.” There has been some discussion in the literature about whether there is any practical difference between states that use the language “not unreasonable” versus those that use the language “be reasonable.” In practice, based on the enumerated factors in Rule 1.5, a court or tribunal will determine that a specific fee charged was “reasonable” or “not unreasonable” in the same way. Similarly, one should assume, even if not explicitly stated, that “unreasonable” expenses charged to a client may draw negative scrutiny and decisions from a reviewing court or tribunal.

NEW AUTHORITY

Useful References on Legal Fees


This month’s LEMR “authority” feature provides a select list of useful references to accompany the lead article’s focus on legal fees.

Books:

  1. M. Hoeflich, C. Steadham, S. Valdez, “Ethical Concerns Regarding Fees and Billing,” in N. Badgerow, Kansas Ethics Handbook (3rd ed. 2015), chap. 7.
  2. Robert Rossi, Attorney’s Fees (3rd ed., 2012)
  3. Alba Conte, Attorney Fee Awards (3rd ed., 2010) (continuing subscription available online at https://store.legal.thomsonreuters.com/law-products/Treatises/Attorney-Fee-Awards-3d-Trial-Practice-Series/p/100002053)

A useful fee survey:

PWC’s 2022 BRASS Survey (Billing Rate & Associate Salary Survey) is available to paid subscribers at https://store.legal.thomsonreuters.com/law-products/Treatises/Attorney-Fee-Awards-3d-Trial-Practice-Series/p/100002053.

An excellent free online outline on fee litigation:

Eric Magnuson & Patricia Furlong, “Litigating Attorneys’ Fee Claims—Proving Reasonableness and Rates of Attorneys’ Fees and Costs,” available online at https://www.robinskaplan.com/-/media/pdfs/litigating-attorneys-fees-clefinal.pdf.

A useful Kansas case:

Westar Energy, Inc. v. Wittig, 44 Kan. App. 2d 182, 206, 235 P.3d 515 (2010), available at https://casetext.com/case/westar-energy-inc-v-wittig.

ETHICS & MALPRACTICE RESEARCH TIP

New Articles Drawn from the Current Index of Legal Periodicals

  1. Patrick Emery Longan, “Legal Ethics,” Annual Survey of Georgia Law, 73 Mercer L. Rev. 155 (2021). 

This is a useful survey.

  1. Joshua E. Kastenberg, “Judicial Ethics in the Confluence of National Security and Political Ideology: William Howard Taft and the ‘Teapot Dome’ Oil Scandal as a Case Study for the Post-Trump Era,” 53 St. Mary’s L.J. 55 (2021). 

This is a fascinating historical take on a persistent issue.

  1. James L. Kimbler, “Should Ohio Adopt the ABA Model Code 8.4(g) to Confront Racism in the Profession?” 44th Annual Symposium: The Impact of Race on a Criminal Case, 47 Ohio N.U. L. Rev. 547 (2021). 

Although this article focuses on Ohio, the discussion is relevant for every state.

  1. Raymond H. Brescia, “Ethics in Pandemics: The Lawyer for the (Crisis) Situation,” 34 Geo. J. Legal Ethics 295 (2021). 

The pandemic is not over. This is a timely guide for the present day.

  1. Alex B. Long, “Of Prosecutors and Prejudice (or ‘Do Prosecutors Have an Ethical Obligation Not to Say Racist Stuff on Social Media?’), 55 UC Davis L. Rev. 1717 (2022). 

This is an important discussion of critical issues facing us all.

BLAST FROM THE PAST

A Comparison of Kansas and Missouri Attorney Ethics Statutes from 1820–1855

Both Kansas and Missouri adopted modest regulatory schemes for lawyer misconduct early in their histories. Indeed, the first such statute in Kansas, adopted by the so-called “Bogus Legislature” during the territorial period in the summer of 1855, was based upon the analogous chapter in the Missouri Revised Statutes of 1845 (which dated back to the first Missouri Statutes of 1820 as revised in 1824). The relevant provision in the Kansas Statutes of 1855 reads:

Any attorney or counsellor at law who shall be guilty of any felony or infamous crime, or improperly retaining his client’s money, or of any malpractice, deceit or misdemeanor in his professional capacity, may be removed or suspended from practice, upon charge exhibited and proceedings thereon had, as herein provided.

The relevant provision in the 1825 Revised Missouri Statutes reads:

Be it further enacted, 

That the supreme court shall have power to strike from the rolls any attorney who shall have been convicted of felony, or guilty of improperly retaining a client’s money after demand made by the client for the same, malpractice in his office, gross ignorance, or neglect of duty, or contempt of court; and any person stricken from the roll of the supreme court shall be prohibited from practising in any other court, the same as if he had never been licensed.

A close comparison of the two provisions shows several differences between the two statutes. Most interesting—and, perhaps, entertaining—is that the Kansas statutes omitted “gross ignorance” as a ground for discipline as contained in the earlier Missouri statutory provision.

References:

  1. The Statutes for the Territory of Kansas (1855), chap. 11, p. 132.
  2. The Revised Statutes of the State of Missouri (1825), vol. 1, p. 159.

Download a PDF version of the Legal Ethics & Malpractice Reporter, vol. 3, no. 6 via the button below.

About LEMR

The Legal Ethics & Malpractice Reporter (LEMR) is a monthly publication covering current developments in ethics and malpractice law. This popular, free publication, with close to 8,000 current subscribers, was envisioned by KU Law professor Mike Hoeflich, who serves as the publication’s editor in chief. In partnership with Professor Hoeflich, JHC’s legal ethics and malpractice group is pleased to publish this monthly online periodical to help attorneys better understand the evolving landscape of legal ethics, professional responsibility, and malpractice.

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About Joseph, Hollander & Craft LLC

Joseph, Hollander & Craft is a premier law firm representing criminal, civil and family law clients throughout Kansas and Missouri. When your business, your freedom, your property, or your career is at stake, you want the attorney standing beside you to be skilled, prepared, and relentless. From our offices in Kansas City, Lawrence, Overland Park, Topeka and Wichita, our team of 20+ attorneys has you covered. We defend against life-changing criminal prosecutions. We protect children and property in divorce cases. We pursue relief for victims of trucking collisions and those who have suffered traumatic brain injuries due to the negligence of others. We fight allegations of professional misconduct against doctors, nurses, judges, attorneys, accountants, real estate agents and others. And we represent healthcare professionals and hospitals in civil litigation.