Can a law firm bill a client for work done by an unpaid law-student intern who works for academic credit?
NY State Bar Ethics Opinion 1090: Billing for an unpaid student-intern
Short answer: A law firm may bill a client for work performed by an unpaid law-student intern who works for academic credit, provided the internship complies with applicable law, the school does not object to the charges, the client is advised of the basis of the charge, and the fee or expense is not excessive.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A law school ran a program in which student interns worked for local law firms and received academic credit instead of pay. A firm asked whether it could bill its clients for the interns' work even though it did not pay the interns (¶¶ 1-2).
The committee, noting its jurisdiction is limited to interpreting the Rules and not other law, assumed the internship and the no-pay arrangement complied with applicable law (mentioning the Second Circuit's Glatt v. Fox Searchlight Pictures framework for unpaid interns) and assumed the school permitted billing for the intern's services (¶ 3). It then analyzed the question under Rule 1.5. Rule 1.5(b) requires the lawyer to communicate the basis or rate of the fee and expenses for which the client will be responsible, and Rule 1.5(a) bars an excessive or illegal fee or expense, with Comment [1] extending the excessiveness limit to expenses (¶¶ 4-5, citing N.Y. State 1087 (2016) and N.Y. State 1050 (2015)).
The committee found it unnecessary to resolve whether a charge for an intern's services is a fee or an expense, likening the intern to a paralegal, law clerk, or recent graduate, and noting courts have treated paralegal charges as fees (¶ 6, citing Missouri v. Jenkins, 491 U.S. 274 (1989)). It concluded nothing in the Rules prohibits a firm from billing for a student-intern's work on a fee basis even though it pays neither the intern nor the school, so long as the client is advised of the firm's intent to charge and the basis of the charge, and the fee is not excessive or illegal (¶ 7). If charged as an expense, the firm may charge either an amount the client agreed to in advance or one that reflects the cost the firm incurred (such as the cost of supervising the intern), subject to the same provisos (¶ 8).
In practice
Under the New York rules as they stood at the time of the opinion, the committee held that the source of the labor (an unpaid intern) does not by itself bar the firm from billing for it. The controlling requirements come from Rule 1.5: advance disclosure of the basis of the charge under Rule 1.5(b), and the prohibition on an excessive or illegal charge under Rule 1.5(a), which the committee applies to both a fee characterization and an expense characterization. The opinion expressly leaves open whether the charge is best classified as a fee or an expense, because the answer to the inquiry is the same either way, and treats whether the disclosure must be in writing as a question of law under the court's retainer rules.
Common questions
Q: Can a firm bill for an intern's time even though the intern is unpaid?
A: Yes. The opinion concludes nothing in the Rules prohibits billing for a student-intern's work even when the firm pays neither the intern nor the school, subject to disclosure and the no-excessive-charge limit (¶ 7).
Q: What does the firm have to tell the client?
A: The basis of the charge. Rule 1.5(b) requires communicating the basis or rate of the fee and expenses, so the opinion conditions billing on advising the client of the firm's intent to charge for the intern's services and the basis (for example, per task or per hour) (¶¶ 4, 7).
Q: Is the intern charge a fee or an expense?
A: The opinion does not decide. It concludes the answer to the inquiry is the same whether the charge is treated as a fee (subject to the Rule 1.5(a) excessiveness test) or as an expense (limited to the client-agreed amount or the firm's cost), so it leaves the classification open (¶¶ 6, 8).
Background and rules framework
The opinion interprets New York Rules of Professional Conduct 1.5(a) (no excessive or illegal fee or expense) and 1.5(b) (communicating the basis or rate of the fee and expenses), corresponding to ABA Model Rule 1.5. Comment [1] to Rule 1.5 extends the excessiveness limitation to expenses and frames the choice between charging a client-agreed amount and an amount reflecting the lawyer's cost. The committee noted that whether the fee communication must be in writing depends on the court's retainer rules (22 NYCRR Part 1215; Part 1400 for matrimonial matters), a question of law.
Citations and references
Rules of Professional Conduct:
- MR 1.5 / NY RPC 1.5(a) (no excessive or illegal fee or expense)
- NY RPC 1.5(b) (communicating the basis or rate of the fee and expenses)
Cases:
- Missouri v. Jenkins, 491 U.S. 274 (1989), on billing paralegal and law-clerk time at market rates
- Glatt v. Fox Searchlight Pictures, Inc., 791 F.3d 376 (2d Cir. 2015), on the standard for unpaid interns
Other opinions cited:
- N.Y. State 1087 (2016): the excessiveness limit applies to expenses as well as fees
- N.Y. State 1050 (2015): treatment of credit-card processing fees as a reimbursable expense
See also
- NY State Bar Op. 1087: Charging for a cancelled initial consultation
- NY State Bar Op. 1104: Securing legal fees with a promissory note and mortgage
Source
- Landing page: https://nysba.org/ethics-opinion-1090/