Can a lawyer bill a client for a secretary's overtime as a separate expense in addition to the legal fee?
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This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current Illinois Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer asked whether it is proper to charge a client for secretarial overtime needed to perform specific tasks for that client, billed separately as an expense rather than included in the legal fee. The committee analyzed the question under Rule 1.5, which requires a lawyer's fee to be reasonable and requires the basis or rate of the fee to be communicated to a client the lawyer has not regularly represented before or within a reasonable time after the representation begins.
The committee reviewed its prior opinions. Opinion 85-9 permitted charging clients for computerized legal research at the lawyer's actual cost, while noting that a lawyer should not invoice for the necessary expenses of a properly equipped office (including local telephone calls and ordinary secretarial assistance), though a client may bear reasonable additional expenditures required by diligent representation. Opinion 86-1 found it improper to charge an hourly rate for a salaried paralegal as an expense on top of a contingent fee, reasoning that such charges came too close to the dishonesty and misrepresentation barred by the former rules and that the public is unfamiliar with what counts as out-of-pocket expense.
Notwithstanding those opinions, the committee concluded that invoicing a client for a secretary's actual overtime compensation, incurred while performing work exclusively for that client, is not professionally improper under limited circumstances: where an hourly rate is established consistent with the Rule 1.5 factors, the overtime is necessary for diligent representation and not the result of the lawyer's procrastination, neglect, or design, and the client is informed and consents to the overtime as a special expense.
Currency note
This opinion was issued in 1991, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion as generally consistent with the later Rule 1.5, while cautioning that the specific standards referenced may differ from current Rules. 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 or requirement mentioned here.
Common questions
Q: Can a lawyer bill a client for a secretary's overtime as a separate expense?
A: The opinion concluded it is proper under limited circumstances, where the overtime is the secretary's actual compensation for work done exclusively for that client, the fee rate is set under Rule 1.5, and the client is informed and consents.
Q: Does the overtime have to be caused by something other than the lawyer's own delay?
A: Yes. The opinion conditioned propriety on the overtime not being the result of the lawyer's procrastination, neglect, or design.
Q: Are ordinary secretarial costs billable as expenses?
A: The opinion, citing Opinion 85-9, treated ordinary secretarial assistance and local phone calls as office overhead a lawyer should not invoice, distinguishing the actual overtime expense at issue here.
Background and rules framework
The opinion applied Rule 1.5 (reasonable fees and the duty to communicate the basis or rate of the fee) to whether a secretary's overtime may be billed as a separate expense, reading it alongside prior Opinions 85-9 and 86-1 on the line between office overhead and billable expenses (Model Rule 1.5).
Citations and references
Rules of Professional Conduct:
- Model Rule 1.5 (fees) / Illinois Rule 1.5
Other opinions cited:
- ISBA Opinion 85-9: computerized research billable at actual cost; ordinary secretarial assistance is overhead.
- ISBA Opinion 86-1: improper to bill a salaried paralegal's hourly rate as an expense on a contingent fee.
See also
- ISBA Ethics Op. 98-02: Division of Fees and Compensation of Contract Lawyer
- ISBA Ethics Op. 12-02: Fee for Estate Planning as a Percentage of the Estate
Source
- Landing page: https://www.isba.org/ethics/opinions/9106
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