What must a written fee agreement say, and can a flat fee carve out routine services and bill them separately by the hour?

Plain-English summary

Opinion 238 (adopted June 15, 1993) arose from an immigration matter handled on a "flat fee" basis. The retainer agreement said the client was entitled to one office visit, telephone conference, or consultation, with additional consultations billed at hourly rates, and a dispute developed over charges for additional consultations. The committee addressed two questions of first impression: what a written fee agreement must contain, and whether a fixed fee may exclude certain services.

On the first, the committee concluded that Rule 1.5(b), which requires the basis or rate of the fee to be communicated in writing to clients not regularly represented, was not satisfied. The agreement did not make clear how charges for consultations beyond the first were assessed; the assessment appeared to be at the lawyer's discretion, which had broken down the relationship. A fixed-fee schedule can meet Rule 1.5(b), but only if it adequately informs the client of the charges to be imposed, and this one did not.

On the second, the committee concluded that a fixed fee must include the reasonably foreseeable services necessary to provide competent representation under Rule 1.1, rather than billing such services as extra hourly charges. Relying on Comment [5] to Rule 1.5, the committee reasoned that an agreement may not be structured to induce a lawyer to curtail necessary services or force the client to bargain for help mid-representation; the test is whether the additional services were reasonably foreseeable at the outset. The committee acknowledged this may raise some fixed fees, but found that preferable to luring clients with an unrealistically low fee and then charging unanticipated amounts. It also noted that Rule 1.4(a)'s duty to keep a client reasonably informed suggests a one-consultation limit may be unreasonable, while recognizing that paralegals or staff may handle routine communications.

Currency note

The D.C. Bar flags Opinion 238 as having been substantively affected by the amendments to the D.C. Rules of Professional Conduct that became effective February 1, 2007.

This opinion was issued in 1993, before the District of Columbia's adoption of the 2007 revisions to the Rules of Professional Conduct. Subsequent rule amendments or 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, deadline, or requirement mentioned here.

Common questions

Q: What must a written fee agreement tell the client?

A: The basis or rate of the fee. The committee concluded that Rule 1.5(b) requires the agreement to adequately inform the client of the charges to be imposed, and that a fixed-fee schedule satisfies this only if it does so clearly.

Q: Can a flat fee cover only listed services and bill everything else hourly?

A: Not for foreseeable necessary services. The committee concluded that a fixed fee must include the reasonably foreseeable services necessary to provide competent representation under Rule 1.1.

Q: Can a lawyer ever charge extra on top of a fixed fee?

A: Yes, for genuinely unforeseeable work. The committee concluded that complications not reasonably foreseeable at the outset may be charged separately, but services foreseeable at the outset must be covered by the fixed fee.

Q: Was the one-consultation limit in this agreement allowed?

A: The committee did not decide it as a fact, but signaled doubt. It noted that Rule 1.4(a)'s duty to keep the client reasonably informed suggests such a limit may be unreasonable.

Background and rules framework

The opinion interpreted D.C. Rule 1.5(b) (the written-fee-agreement requirement for clients not regularly represented, satisfied by a fixed-fee schedule only if it adequately informs the client of the charges), Rule 1.1 (competent representation), and Rule 1.4(a) (keeping the client reasonably informed). The committee read Comment [5] to Rule 1.5 to bar fee structures that might induce a lawyer to curtail necessary services.

Citations and references

Rules of Professional Conduct:

• D.C. RPC 1.5(b) / Model Rule 1.5 (written fee agreement; basis or rate of fee)
• D.C. RPC 1.1 / Model Rule 1.1 (competent representation)
• D.C. RPC 1.4(a) / Model Rule 1.4 (communication; keeping the client informed)

See also

• DC Ethics Op. 264: Special Retainers, Refunds, and Commingling
• DC Ethics Op. 389: Flat Fees, Trust, and Disbarment
• ABA Formal Op. 505: Fees Paid in Advance

Source

• Landing page: https://www.dcbar.org/for-lawyers/legal-ethics/ethics-opinions-210-present/ethics-opinion-238