Can a lawyer bill more than one client for the same hours or recycled work, charge overhead as an expense, or add a surcharge to third-party costs like expert witnesses or computer research?
Apply this to your situation
This page answers the general question as of 1993. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The committee addressed billing practices it described as a source of public distrust: charging more than one client for the same work or hours, surcharging outside vendor services, and charging beyond reasonable cost for in-house services. It began from the disclosure duty: consistent with the Model Rules, "a lawyer must disclose to a client the basis on which the client is to be billed for both professional time and any other charges," and absent a contrary understanding "any invoice for professional services should fairly reflect the basis on which the client's charges have been determined." The opinion tied this to Rule 1.5 (reasonable fees), Rule 1.4(b) (communication), and Rule 7.1 (truthful statements about services).
On time-based billing, the committee held that a lawyer "may not bill more time than she actually spends on a matter," except for rounding up to minimum increments. It worked through illustrative scenarios: a lawyer who schedules three clients' court appearances on one day, or who travels for one client while drafting for another, has not earned the same hours from each; and a firm that reuses research already billed to one client may not bill a second client, who agreed to be charged by time spent, "the same amount for the recycled work product that it charged the first client." The committee reasoned that the second client agreed to pay for time spent, and the lawyer spent no new time, so charging again would not reflect the actual basis of the fee.
On expenses, the opinion distinguished overhead from cost recovery. A lawyer "may not charge a client for overhead expenses generally associated with properly maintaining, staffing and equipping an office," because those costs are built into the fee. But the lawyer may recoup expenses reasonably incurred for in-house services tied to the client's matter, such as photocopying, long-distance calls, computer research, special deliveries, and secretarial overtime, "so long as the charge reasonably reflects the lawyer's actual cost." As to outside services, the committee concluded that a lawyer "may not charge a client more than her disbursements for services provided by third parties like court reporters, travel agents or expert witnesses," absent additional cost the lawyer actually incurred; marking up an expert's hourly rate or adding an undisclosed surcharge to computer-research charges was not permitted.
Currency note
This opinion was issued in 1993, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: Could a firm bill two clients for the same hours of work?
A: No. The opinion held that a lawyer may not bill more time than actually spent, so a lawyer who performs work that benefits two clients at once cannot charge each of them for the full time.
Q: Could a firm recharge a later client for reusing research already billed to an earlier client?
A: No, where the later client agreed to be billed by time spent. The committee reasoned the firm spent no new time on the recycled work product, so billing the second client the same amount it charged the first did not reflect the agreed basis.
Q: Could a lawyer add a surcharge to an expert witness's or court reporter's bill?
A: No, unless the lawyer actually incurred additional cost. The opinion concluded a lawyer may not charge more than the lawyer's actual disbursement for third-party services.
Q: Could office overhead be billed to the client as an expense?
A: No. The committee held that general overhead for maintaining, staffing, and equipping an office may not be charged as an expense, though actual in-house costs reasonably tied to the matter could be recouped at cost.
Background and rules framework
The opinion interpreted Rule 1.5 (reasonable fees, including the Rule 1.5(b) duty to communicate the basis of the fee), Rule 1.4(b) (explaining a matter so the client can make informed decisions), Rule 1.1 (competence, in relation to the value of services), and Rule 7.1 (false or misleading communications about the lawyer's services, applied to invoices). Because the ABA interprets the Model Rules directly, there is no state-rule analogue.
Citations and references
Rules of Professional Conduct:
- MR 1.5 (reasonable fees; 1.5(b) communicating the basis of the fee)
- MR 1.4(b) (communication)
- MR 1.1 (competence)
- MR 7.1 (truthful communications about the lawyer's services)
See also
- ABA Formal Op. 00-420: Surcharge to a client for a contract lawyer
- ABA Formal Op. 487: Fee division with a client's prior counsel
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: 93-379.pdf
Get today's answer for your situation
You just read a 1993 opinion on this question. Ezel checks the current rules of professional conduct in your state and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.