Opinion #139. Charging Client for Defending Attorney Before Board of Overseers of the Bar

Issued by the Professional Ethics Commission

Date Issued: June 1, 1994

Facts

During the course of representing a divorce client, an attorney is reported to the Board of Overseers of the Bar by the adverse party for alleged professional misconduct. We are asked to assume, for purposes of this opinion, that the complaint constituted a tactical maneuver by the adverse party intended to pressure the attorney into withdrawing from the representation or otherwise attempting to dampen the attorney’s zealous representation of his/her client. We are further asked to assume that the charges are ultimately found to have been frivolous by the Board, and are dismissed as such without any adverse finding to the attorney.

In the event of such an adverse party’s complaint, the reported attorney is forced to expend time and expense in defense of the allegation. In some cases, this may involve considerable cost to the attorney. The attorney would like to pass that cost on to the client. The attorney inquires into the propriety of charging the client for professional time and disbursements incurred in responding to the adverse party’s tactical, frivolous complaint to the Board.

Opinion

Rule 3.3 governs the question of what fees, costs and disbursements may be charged to a client. In general, attorneys are allowed to enter into any agreement for fees that may be struck between the lawyer and the client. The limitations upon that general rule are set forth in Rule 3.3.

Rule 3.3 prohibits an attorney from entering into an agreement for, charging or collecting “an illegal or excessive fee.” A fee will be considered “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.” To aid application of that general precept the Rule enumerates nine specific factors to be considered as guides in determining the reasonableness of a fee.

“(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 of the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The responsibility assumed, the amount involved, and the results obtained;

(5) The time limitations imposed by the client or the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer performing the services;

(8) Whether the fee is fixed or contingent; and

(9) The informed written consent of the client as to the fee agreement.”

We are struck at the outset by the novelty of the suggestion that the attorney’s personal defense against a complaint of professional misconduct could be construed, under any set of circumstances, as the rendition of legal services to a client. The contractual relationship between an attorney and a client is grounded on consideration flowing in the form of the attorney’s legal services in exchange for a reasonable fee.

Our review of the enumerated factors listed in Rule 3.3 reinforces our concern for the propriety of charging the client for the attorney’s defense. Such terms as “legal service,” “employment,” “legal services,” and “results obtained,” as used in Rule 3.3(a) (1), (2), (3), (4) and (7), clearly refer to the client’s case with respect to which the attorney has been hired to perform work. Of particular relevance to the inquiry at hand is Rule 3.3(a)(3), mandating consideration of the fee “customarily charged in the locality for similar legal services.” Contemporary practice in the State of Maine, in our collective experience, does not establish the existence of a custom of charging the client for the attorney’s time and expenses defending against an adverse party’s frivolous complaint of professional misconduct.

Moreover, in view of the complete lack of support in the Rules for charging the client in these circumstances, we conclude that such fees remain unreasonable, notwithstanding that the client may in fact give his/her “informed written consent” to such a fee agreement. See Rule 3.3(a)(9).


Enduring Ethics Opinion