The novel COVID-19 pandemic has affected lives all across the globe, and it is likely that the outbreak has also affected your relationship with your attorney, whether you realize it or not. Since March 10, 2020, Massachusetts has been in a state of emergency, allowing the State Administration to more efficiently and flexibly respond to the Coronavirus and limit its spread.
Due to such restrictions, your attorney is more than likely “WFH” (working from home), and you may be wondering what duties your attorney owes to you, the client, during this time of immense uncertainty.
The transition from 9-5 office life to 9-5 WFH life is no easy task, especially considering the many distractions we all encounter when WFH—be it kids, pets, chores, or even a pestering significant other. At the same time, does this mean it would be justifiable for your attorney to bill for the additional time it takes them to complete the work on your case due to the distractions that are inherent in WFH? According to the Massachusetts Rules of Professional Conduct Rule 1.5(a), a lawyer is prohibited from charging clearly excessive fees. In a recent announcement by the Massachusetts Board of Bar Overseers, the organization notes that charging a client for extra time spent on a task due to WFH issues would be unfair and would likely result in a violation of Rule 1.5(a) because, “The client presumably agreed to pay your hourly rate based on the level of efficiency at which you customarily perform work at your office.”
What is a “clearly excessive fee” pursuant to 1.5(a)? For instance, just because a lawyer’s fees are higher than expected or more than other lawyers would charge for the same services does not mean that the fee is clearly excessive. Rather, there are eight factors set out in Rule 1.5(a) that help determine whether fees are clearly excessive:
(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 by the lawyer;
(3) The fee customarily charged in the particular locality for similar legal services;
(4) The amount involved and the results obtained;
(5) The time limitations imposed by the client or by the circumstances;
(6) The nature and length of the professional relationship with the client;
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services;
(8) Whether the fee is fixed or contingent.
Therefore, to determine whether a fee was clearly excessive, all of the factors listed in Rule 1.5(a) must be weighed. Ultimately, although a lawyer’s fee for their services may be higher than expected, a lawyer simply cannot charge any fee that the client has openly agreed to pay. Additionally, even if a lawyer acts diligently and in good faith on their client’s matter, charges for their services still may be clearly excessive.
For instance, in Matter of Fordham, an experienced trial attorney was retained to defend prosecution of drunk driving and other related charges, despite the fact that he openly admitted to having never represented a client in a drunk driving case or any other criminal matter. Matter of Fordham, 668 N.E.2d 816, 819 (Mass. 1996). The bills at the end of the representation totaled $50,022.25, representing a total of 227 hours of billed time. Id. at 819. The Bar Counsel found that all of the work said to have been done was actually done and that the attorney had acted conscientiously, diligently, and in good faith in representing the client and in the billing. Id. In overturning the bar counsels’ decision, the court relied on expert testimony that the amount of time spent on this case was clearly excessive—the number of hours spent was several times the amount of time any of the witnesses ever spent on a similar case. Id. at 822. Furthermore, the court noted that even though the client had entered into the fee agreement with “open eyes” because he hired the attorney despite being made aware that he’d never defended an OUI charge before, and the fee agreement was fully disclosed, the question is not whether the fee is accepted as valid or agreed to by the client—the question is whether the fee is clearly excessive. Id. at 824. Ultimately, discipline may be imposed for billing for excessive hours that were spent diligently and in good faith. Id.