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Opinion #5 - 11/19/1964 (5-64)

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

QUESTION

The President of this Association has requested a formal opinion on the question:

"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?"

Canon 12:

"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.”

References:

American Bar Association Opinions:

28 (1930); 171 (1937); 190 (1939); 302 (1961)

OPINION

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.