Opinion #24. Charging Attorneys Fees Beyond Amount Allowed by Commission

Issued by the Professional Ethics Commission

Date Issued: August 25, 1981

A State agency, frequently required to review or approve the amount of counsel fees sought by attorneys who appear before it, has raised the question of whether it is unethical to bill for minimum time periods (such as 1/10th or 1/4th of an hour) without regard to whether the activity actually consumed the total time indicated.

While a case could be hypothesized where the use of standardized minimum charges could result in an impermissibly high fee, we do not believe that the issue posed rises to the ethical level. The Commission recognizes that records kept by attorneys and members of other professions and businesses utilize some convenient minimum unit of time, such as 1/10th or 1/4th of an hour, rather than attempting with stopwatch accuracy to record the minutes and seconds involved in a given task. Whatever deviation from exact precision may result from the use of these time units will, in substantially all cases, be de minimis; in the unusual case where a great number of these “overcharges” combine to make the total fee excessive, that fact would be apparent from a review of the scope of work undertaken.

The Commission also suspects that there are equally as many instances where attorneys intentionally or unintentionally omit charging for fractions of time units actually spent on a matter; these minimal deviations may well balance out over the course of a case. In short, the Commission finds no ethical impropriety in an attorney adopting reasonably accurate minimum time units. We believe 1/10th hour is, under normal circumstances, such a reasonably accurate unit. Whether larger units are also reasonable depends upon whether they reflect a true average of time spent by the attorney.

The question raised is not the exclusive province of this Commission. Presumably the State agency has the power to adopt rules specifying the conditions under which it will consider and approve counsel fees. We see no reason why it may not, therefore, place such restrictions on the use of minimum time period billing as it deems justified.

Enduring Ethics Opinion