Can a lawyer bill the client for the time and cost of defending against an opposing party's frivolous bar complaint?

Plain-English summary

While representing a divorce client, an attorney was reported to the Board of Overseers of the Bar by the adverse party for alleged misconduct. The Commission was asked to assume the complaint was a tactical maneuver intended to pressure the attorney into withdrawing or dampening zealous representation, and that the charges were ultimately found frivolous and dismissed without any adverse finding. Defending the complaint cost the attorney time and expense, and the attorney asked whether he could pass that cost on to the client.

The Commission concluded he could not. Rule 3.3 governs what fees, costs, and disbursements may be charged: lawyers may generally agree to any fee, subject to the rule's prohibition on an illegal or excessive fee, with a fee "excessive" when a lawyer of ordinary prudence would be left with a definite and firm conviction that it exceeds a reasonable fee, judged by the nine enumerated factors. The Commission was "struck at the outset by the novelty" of treating an attorney's personal defense against a misconduct complaint as the rendition of legal services to a client, observing that the attorney-client relationship rests on legal services in exchange for a reasonable fee. Reviewing the enumerated factors, it found that terms like "legal service," "employment," and "results obtained" in Rule 3.3(a) plainly refer to the client's own case, and that Maine practice establishes no custom (Rule 3.3(a)(3)) of charging clients for an attorney's defense against a frivolous misconduct complaint. Given the complete lack of support in the rules, the Commission concluded such fees remain unreasonable even if the client gives informed written consent under Rule 3.3(a)(9).

Currency note

This opinion was issued in 1994, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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: Could a lawyer bill the client for defending a frivolous bar complaint brought by the opposing party?

A: The opinion concluded no. It held that defending a misconduct complaint is not the rendition of legal services to the client, so the charge is unsupported by the fee rules.

Q: Did the client's written consent make the charge proper?

A: No. The opinion concluded that, given the complete lack of support in the rules, such fees remain unreasonable notwithstanding the client's informed written consent under Rule 3.3(a)(9).

Q: Why was the charge treated as unreasonable?

A: The opinion reasoned that the fee-reasonableness factors (legal service, employment, results obtained) refer to the client's own case, and that Maine practice establishes no custom of charging clients for an attorney's defense against a frivolous misconduct complaint.

Background and rules framework

The opinion interprets Maine Bar Rule 3.3 (fees), which bars an illegal or excessive fee and lists nine factors for assessing reasonableness, including the customary local fee for similar services (3.3(a)(3)) and the client's informed written consent (3.3(a)(9)). This corresponds to ABA Model Rule 1.5 (fees; reasonableness factors).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5 (fees; factors for reasonableness)
• Maine Bar Rule 3.3, 3.3(a)(1)-(9)

See also

• Maine Ethics Op. 151: Fee-Arbitration Clauses
• ABA Formal Op. 00-420: Surcharge for Contract Lawyers

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89820

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: June 1, 1994

Facts

During the course of representing a divorce client, an attorney is reported to the Board of Overseers of the Bar by the adverse party for alleged professional misconduct. We are asked to assume, for purposes of this opinion, that the complaint constituted a tactical maneuver by the adverse party intended to pressure the attorney into withdrawing from the representation or otherwise attempting to dampen the attorney?s zealous representation of his/her client. We are further asked to assume that the charges are ultimately found to have been frivolous by the Board, and are dismissed as such without any adverse finding to the attorney.

In the event of such an adverse party?s complaint, the reported attorney is forced to expend time and expense in defense of the allegation. In some cases, this may involve considerable cost to the attorney. The attorney would like to pass that cost on to the client. The attorney inquires into the propriety of charging the client for professional time and disbursements incurred in responding to the adverse party?s tactical, frivolous complaint to the Board.

Opinion

Rule 3.3 governs the question of what fees, costs and disbursements may be charged to a client. In general, attorneys are allowed to enter into any agreement for fees that may be struck between the lawyer and the client. The limitations upon that general rule are set forth in Rule 3.3.

Rule 3.3 prohibits an attorney from entering into an agreement for, charging or collecting ?an illegal or excessive fee.? A fee will be considered ?excessive? when, ?after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.? To aid application of that general precept the Rule enumerates nine specific factors to be considered as guides in determining the reasonableness of a fee.

?(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 of the lawyer;

(3) The fee customarily charged in the locality for similar legal services;

(4) The responsibility assumed, the amount involved, and the results obtained;

(5) The time limitations imposed by the client or the circumstances;

(6) The nature and length of the professional relationship with the client;

(7) The experience, reputation, and ability of the lawyer performing the services;

(8) Whether the fee is fixed or contingent; and

(9) The informed written consent of the client as to the fee agreement.?

We are struck at the outset by the novelty of the suggestion that the attorney?s personal defense against a complaint of professional misconduct could be construed, under any set of circumstances, as the rendition of legal services to a client. The contractual relationship between an attorney and a client is grounded on consideration flowing in the form of the attorney?s legal services in exchange for a reasonable fee.

Our review of the enumerated factors listed in Rule 3.3 reinforces our concern for the propriety of charging the client for the attorney?s defense. Such terms as ?legal service,? ?employment,? ?legal services,? and ?results obtained,? as used in Rule 3.3(a) (1), (2), (3), (4) and (7), clearly refer to the client?s case with respect to which the attorney has been hired to perform work. Of particular relevance to the inquiry at hand is Rule 3.3(a)(3), mandating consideration of the fee ?customarily charged in the locality for similar legal services.? Contemporary practice in the State of Maine, in our collective experience, does not establish the existence of a custom of charging the client for the attorney?s time and expenses defending against an adverse party?s frivolous complaint of professional misconduct.

Moreover, in view of the complete lack of support in the Rules for charging the client in these circumstances, we conclude that such fees remain unreasonable, notwithstanding that the client may in fact give his/her ?informed written consent? to such a fee agreement. See Rule 3.3(a)(9).