Can a lawyer charge more than a statutory or court-ordered fee, or have the client make up the difference through a gift to the lawyer or to a charity?

Plain-English summary

On the first question, the Committee recalled its 1962 advice that an attorney is bound by a statutory fee, such as the workmen's compensation fee under KRS 342.320, and that charging in excess would be unethical. It explained that fees are generally governed by DR 2-106 (a reasonable fee), that many statutes now set or limit attorney fees, and that a lawyer who seeks to charge a client more than a court orders or a statute allows may be engaging in misrepresentation and conduct prejudicial to the administration of justice under DR 1-102(A)(4) and (5). It noted one situation that is different: where a court orders a partial fee "toward" the total in a case such as a divorce under KRS 403.220, nothing precludes the lawyer from charging the client an additional amount toward the total fee so long as the total fee is reasonable. Absent such a situation, the lawyer is bound by the fee set by the legislature, court, or administrative agency.

On the second question, the Committee answered "No," reasoning that merely converting a legal obligation into a moral one does not change the character of the transaction; if the statutory or court-ordered fee had a valid purpose, removing the enforceability of the excess does not satisfy that purpose, and suggesting or accepting such a gift may violate Canon 9's appearance-of-impropriety principle and EC 9-2. On the third question, it again answered "No," concluding that the client must be free to decide how to spend the money without the attorney's guidance, because steering the client to give the excess to a charity would impose a moral obligation that frustrates the purpose of the statute or court in setting the fee.

Currency note

This opinion was issued in 1984 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a Kentucky lawyer charge more than a statutory or court-ordered fee?

A: Generally no. The opinion concluded the lawyer is bound by a fee set by statute, court, or agency, with a narrow exception where a court awards a partial fee "toward" a larger total fee that remains reasonable.

Q: Can the client just give the lawyer a gift equal to the excess?

A: No. The opinion concluded that converting the excess into a "moral" gift does not change the transaction's character and may violate the appearance-of-impropriety principle.

Q: Can the lawyer suggest the client donate the excess to a charity instead?

A: No. The opinion concluded the client must decide how to spend the money without the lawyer's guidance, because steering the gift would frustrate the purpose behind the fee limit.

Background and rules framework

The opinion applied the former Code's fee and misconduct provisions, DR 2-106 (reasonable fees) and DR 1-102(A)(4) and (5) (misrepresentation and conduct prejudicial to the administration of justice), with Canon 9 and EC 9-2. The modern analogs are Model Rule 1.5 (fees, including fees fixed by law) and Model Rule 8.4(c) and (d) (dishonesty and conduct prejudicial to the administration of justice). The analysis turned on respecting the limit set by statute or court and not evading it through a gift.

Citations and references

Rules of Professional Conduct:

• DR 2-106; DR 1-102(A)(4); DR 1-102(A)(5); EC 9-2 (former Code)
• MR 1.5 (fees); MR 8.4(c), (d) (misconduct)

Statutes:

• KRS 342.320 (workmen's compensation fee); KRS 403.220 (award of fees in divorce)

Cases:

• Ex Parte Auditor of Public Accounts, 604 S.W.2d 682 (Ky. 1980)
• Kentucky Bar Association v. Kemper, 637 S.W.2d 637 (Ky. 1982)

Other opinions cited:

• KBA E-6; KBA E-250

See also

• KBA Ethics Op. E-333: Contingent Fees in Civil Rights Cases
• KBA Ethics Op. E-327: Fee to a Health Provider

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-282.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-282
Issued: January 1984

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question 1:

May a lawyer accept a fee in excess of a statutory or court ordered fee?

Answer 1:

Qualified no.

Question 2: If a lawyer may not ethically accept a fee in excess of a statutory or court ordered fee, may the lawyer suggest or accept a gift from the client which would equal the amount of the contractual fee between the two? Answer 2:

No.

Question 3:

If a lawyer may not suggest such a gift, may the lawyer suggest that the client give a gift to a specific charity?

Answer 3:

No.

References:

KBA E-6; DR 1-102(A)(4), (5); KRS 342.320; DR 2-106; Ex Parte Auditor of Public Accounts, Ky., 604 S.W.2d 682 (1980); Kentucky Bar Association v. Kemper, 637 S.W.2d 637 (1982); KRS 403.220; EC 9-2. OPINION

In 1962 this Committee was asked whether a lawyer could charge in excess of a state statutory fee. This request was on behalf of the Workmen's Compensation Board to the expressed statutory enactment of a fee in a workmen's compensation case pursuant to KRS 342.320. This Committee stated that the attorney is bound by the statute and it would be unethical for a lawyer to charge in excess of the statutory fee. Lawyer's fees are generally governed by DR 2-106 which provides in essence that a lawyer shall charge a reasonable fee for services performed. A proliferation of statutes now have been enacted in this country and state providing limits or setting of attorney fees for performance of work of lawyers. In essence the legislative body, court or administrative body sets the fee. Obviously, the lawyer may appeal that decision.

The lawyer who would seek to charge the client more than is ordered by the court or allowable by a statute may be engaging in activity involving misrepresentation, and such action most certainly would be prejudicial to the administration of justice. DR 1-102(A)(4), (5). See also KBA E-250 and Kentucky Bar Association v. Kemper, Ky., 637 S.W.2d (Ky. 1982). This Committee views, without deciding, that the legislature has the power to determine the reasonableness of an attorney's fee. See Ex Parte Auditor of Public Accounts, Ky., 604 S.W.2d 682 (1980). In some situations the judge may very well order a partial attorney fee against a party adverse to the attorney's client. This is particularly true in divorce cases pursuant to KRS 403.220. In that case, where the judgment is "towards" attorney fee there is nothing to preclude a lawyer charging the client a fee in excess of that ordered by the judge "toward" the total fee as long as the total fee is reasonable. DR 2-106. Absence the above situation or one like it, an attorney is bound by the fee set by the legislature or court or administrative agency. OPINION 2 Merely changing a "legal" obligation into a "moral" obligation does not change the character of the transaction. If we assume there was a valid purpose for the amount of a statutory or court ordered fee we also must assume that changing the enforceability of any obligation to pay the excess, if any, does not in itself satisfy the purpose. Even if such a gift would be proper otherwise, suggesting or accepting such a gift may well violate Canon 9 which says, "A lawyer should avoid even the appearance of professional impropriety." EC 9-2 says, "Public confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical." OPINION 3 A client in such circumstances must be permitted to decide how to spend the money without guidance from the attorney. To allow otherwise would be to permit a "moral" obligation to be imposed on the client which would frustrate the purpose of the statute or court in establishing the fee
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Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.