May a New York lawyer charge a client for time spent repeatedly explaining detailed legal invoices?

Plain-English summary

The client agreed to an hourly fee but questioned each billing cycle, sometimes repeating questions the lawyer had answered and the client appeared to understand the previous month. The committee distinguished billable counseling from the lawyer's nonbillable business overhead.

Rules 1.5(a) and (b) required a nonexcessive fee and communication of the representation's scope and the basis or rate of fees and expenses. Whether a particular activity counted as professional services depended on context, the parties' reasonable expectations, and what the lawyer disclosed and they agreed to in advance.

If an invoice provided enough information under the engagement agreement or prior understanding and was not arguably wrong, explaining the services, who performed them, and why they were performed could be part of counseling. Rule 1.4(a)(4) also required prompt compliance with reasonable client requests for information. After advance notice that the additional explanation would be billed, the lawyer could charge for answering even repeated questions.

The result differed for a genuine billing dispute involving alleged overcharging, errors, unnecessary work, or overstaffing. Addressing that dispute advanced the lawyer's own business interest rather than providing a legal service, so the time was overhead and not billable.

In practice

Under the opinion, billable explanatory time required a sufficiently detailed, non-erroneous invoice, a counseling purpose, and advance notice to the client. The classification turned on the substance of the exchange: explaining the legal services could be billed after notice, but defending a disputed bill could not.

Common questions

Q: May a lawyer charge for answering the same invoice question again?

A: Yes, if the detailed bill is not arguably erroneous, the explanation is part of counseling, and the lawyer first tells the client that the additional time will be billed.

Q: Is preparing standard time entries or an invoice itself billable?

A: The opinion treated ordinary time-entry and bill preparation as overhead, in contrast to a counseling explanation requested by the client.

Q: May the lawyer bill time spent answering an overcharging allegation?

A: No. Time spent addressing a good-faith dispute about overcharging, erroneous billing, unnecessary work, or overstaffing serves the lawyer's business interests and is overhead.

Q: What if the client refuses to agree that future detailed explanations will be billed?

A: The opinion says the lawyer may decline to discuss the invoices in detail after the client refuses advance agreement to compensate that additional explanatory service.

Background and rules framework

Rule 1.5(a) prohibited excessive or illegal fees. Rule 1.5(b) required communication of the scope of representation and the basis or rate of fees and expenses. Rule 1.4(a)(4) required prompt compliance with reasonable requests for information. The committee used those provisions to separate client counseling from work performed to resolve the lawyer's own fee dispute.

Citations and references

New York Rules of Professional Conduct:

• Rule 1.4(a)(4)
• Rule 1.5(a) and Comment 1
• Rule 1.5(b)

Other opinions cited:

• ABA Formal Opinion 93-379
• N.Y. State 783 (2005)

See also

• ABA Formal Op. 93-379: Billing for fees and expenses
• NY State Bar Op. 1165: Disputed fees and interest
• NY State Bar Op. 783: Interest on delinquent accounts

Source

• Landing page: NYSBA Ethics Opinion 1299