R.i. Sup. Ct. R. 1.5
R.i. Sup. Ct. R. 1.5
COMMENTARY
Reasonableness of Fee and Expenses
[1] Paragraph (a) requires that lawyers charge fees that are reasonable under the circumstances. The factors specified in (1) through (8) are not exclusive. Nor will each factor be relevant in each instance. Paragraph (a) also requires that expenses for which the client will be charged must be reasonable. A lawyer may seek reimbursement for the cost of services performed in-house, such as copying, or for other expenses incurred in-house, such as telephone charges, either by charging a reasonable amount to which the client has agreed in advance or by charging an amount that reasonably reflects the cost incurred by the lawyer.
Basis or Rate of Fee
[2] When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee and the expenses for which the client will be responsible. In a new client-lawyer relationship, where the client is to be obligated directly to the lawyer for the payment of fees, an understanding as to fees and expenses must be promptly established. Generally, it is desirable to furnish the client with at least a simple memorandum or copy of the lawyer's customary fee arrangements that states the general nature of the legal services to be provided, the basis, rate or total amount of the fee and whether and to what extent the client will be responsible for any costs, expenses or disbursements in the course of there presentation. A written statement concerning the terms of the engagement reduces the possibility of misunderstanding. In those cases, the lawyer must communicate the basis or rate of the fee in writing to the client. It is preferable that the lawyer provide written fee information to the client before the representation is undertaken. In some instances, however, it is sufficient if the lawyer communicates the basis of the fee to the client in writing after the representation has been commenced, so long as the lawyer does so promptly thereafter. This is particularly true in the criminal practice, where the lawyer and the client may have their first communication while the client is incarcerated or immediately prior to a court hearing. Under such circumstances, it may be impractical if not impossible for the lawyer to provide the client with a written statement of the basis for the fee before the representation commences. The lawyer should, however, communicate the basis for the fee to the client orally before the representation is undertaken and must communicate the fee information in writing to the client promptly thereafter.
The fee information may be provided to the client in a fee agreement, engagement letter, or other suitable form. It is not necessary for the lawyer to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. If the lawyer has provided the client with an estimated fee and developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. Where a lawyer is required to provide the client with written fee information, in addition to the fee information the lawyer should inform the client regarding the client's obligations with respect to costs and expenses.
The obligation to provide written fee information does not apply to lawyers representing clients who are not paying fees to the lawyer or where the lawyer is to be paid by a third party. A typical example is in insurance defense practice, where the lawyer represents the insured but is paid by the insurer. Under such or similar circumstances, the lawyer may not be obligated to inform the client of the specifics of the fee arrangement the lawyer has with the insurer. The lawyer's obligations under such circumstances, however, are controlled by Rule 1.8(f). The lawyer should provide the client with a billing regarding the fees, costs, and expenses incurred on a quarterly basis at a minimum, unless in the written fee information the lawyer and client have agreed to a different billing schedule. The billing should provide information sufficient for the client to determine the basis for the particular fee charged.
[3] Contingent fees, like any other fees, are subject to the reasonableness standard of paragraph (a) of this Rule. In determining whether a particular contingent fee is reasonable, or whether it is reasonable to charge any form of contingent fee, a lawyer must consider the factors that are relevant under the circumstances. Applicable law may impose limitations on contingent fees, such as a ceiling on the percentage allowable, or may require a lawyer to offer clients an alternative basis for the fee. Applicable law also may apply to situations other than a contingent fee, for example, government regulations regarding fees in certain tax matters, or other situations in which court approval of a fee is required.
Terms of Payment
[4] A lawyer may require advance payment of a fee, but is obliged to return any unearned portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(i). However, a fee paid in property instead of money may be subject to the requirements of Rule 1.8(a) because such fees often have the essential qualities of a business transaction with the client.
[5] An agreement may not be made whose terms might induce the lawyer improperly to curtail services for the client or perform them in a way contrary to the client's interest. For example, a lawyer should not enter into an agreement whereby services are to be provided only up to a stated amount when it is foreseeable that more extensive services probably will be required, unless the situation is adequately explained to the client. Otherwise, the client might have to bargain for further assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based primarily on hourly charges by using wasteful procedures.
Prohibited Contingent Fees
[6] Paragraph (d) prohibits a lawyer from charging a contingent fee in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony or support or property settlement to be obtained. This provision does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post judgment balances due under support, alimony or other financial orders because such contracts do not implicate the same policy concerns.
Division of Fee
[7] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole. In addition, the client must agree to the arrangement, including the share that each lawyer is to receive, and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1.
[8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.
Disputes Over Fees
[9] If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by the bar, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.