NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinion
Opinion #5 - 11/19/1964
Topic: Minimum Fee Schedule.
Digest: Lawyer may not depart from minimum fee schedule where it is a
means to solicit and advertise.
Canon: Former Canon 12
The President of this Association has requested a formal opinion on
"Is it ethical for a lawyer habitually to perform legal services for
less than the fee set forth in a duly-adopted fee schedule, and to let
it be known by whatever means, that he will charge less than is provided
for in such schedule?"
"In fixing fees, lawyers should avoid charges which overestimate
their advice and services, as well as those which undervalue them. ***
In determining the amount of the fees, it is proper to consider:
***3. The customary charges of the Bar for similar services, ***
In determining the customary charges of the
Bar-for similar services, it is proper for a lawyer
to consider a schedule of minimum fees adopted
by a Bar Association, but no lawyer
should permit himself to be controlled thereby
or to follow it as his sole guide in determining
the amount of hi a fee.”
American Bar Association Opinions:
28 (1930); 171 (1937); 190 (1939); 302 (1961)
Canon 12 sets forth six factors to be considered in fixing fees, of
which only one is a fee schedule adopted by a Bar Association. To use
such a schedule as the sole standard, whether the fee fixed be greater
or less than the schedule or exactly in accordance therewith, is, in the
opinion of this Committee, improper.
Merely to depart from the fees recommended in such a schedule is not
unethical where the departure results from consideration of the other
factors listed in the Canon.
But to let it be known, by whatever means, that a lawyer will
customarily charge for his services less than the recommended fees set
forth in a duly adopted schedule is not in accordance with Canon12 and
is unethical as a form of solicitation and advertising.