Can a Rhode Island lawyer charge both a contingency fee and a fixed fee for services in the same litigation?

Plain-English summary

The inquiring attorney asked whether the attorney may enter into a mixed fee arrangement, receiving both a contingency fee and a fixed fee for services provided in the same litigation. As a threshold matter, the panel said it is not equipped to embark on the task of rendering an opinion as to the reasonableness of attorney's fees and therefore would not give general approval to such an arrangement.

The panel agreed that Rule 1.5 ("Fees") and its comments provide guidance for the inquiry. Rule 1.5(a) sets forth specific criteria that determine whether a fee is reasonable. Rule 1.5(b) provides that the fee should be communicated to the client and should be in writing. The comments to Rule 1.5 point out that an understanding and consent of the client regarding the fee should be promptly established; it is not necessary to recite all the factors underlying the basis of the fee, but only those directly involved in its computation. A written statement regarding the fee reduces the possibility of a misunderstanding between attorney and client. Rule 1.5(c) addresses contingency fee agreements and states that they should be in writing.

The panel concluded that if the attorney's fee arrangements conform with the guidelines established in Rule 1.5 and the comments, then a fixed fee agreement and a contingency fee agreement for the same matter is not inconsistent with the Rules of Professional Conduct.

In practice

Under this opinion, combining a contingency fee and a fixed fee for the same litigation is not, by itself, inconsistent with the Rules of Professional Conduct, provided the arrangement conforms to Rule 1.5 and its comments. The opinion expressly declines to assess the reasonableness of any particular fee, treating that as outside the panel's function, and points the analysis to Rule 1.5(a)'s reasonableness criteria, Rule 1.5(b)'s communication-in-writing guidance, and Rule 1.5(c)'s writing requirement for contingency agreements.

Common questions

Q: Is it improper per se to charge both a contingency fee and a fixed fee in the same case?

A: Per the opinion, no; a fixed fee and a contingency fee for the same matter is not inconsistent with the Rules of Professional Conduct if the arrangement conforms to Rule 1.5 and its comments.

Q: Did the panel decide whether a particular mixed fee is reasonable?

A: Per the opinion, no; the panel said it is not equipped to opine on the reasonableness of attorney's fees and would not give general approval to such arrangements.

Q: What does Rule 1.5 require for such an arrangement?

A: Per the opinion, Rule 1.5(a) sets the reasonableness criteria, Rule 1.5(b) provides that the fee should be communicated to the client and in writing, and Rule 1.5(c) provides that contingency fee agreements should be in writing.

Background and rules framework

The opinion applies Rhode Island Rule 1.5 (fees), corresponding to Model Rule 1.5. The panel read Rule 1.5(a) as supplying the criteria for a reasonable fee, Rule 1.5(b) as calling for the fee to be communicated to the client in writing, and Rule 1.5(c) as requiring a writing for contingency fee agreements, and treated conformity with those guidelines and the comments as the condition on which a combined fixed and contingency fee is permissible.

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees)
• RI RPC 1.5(a), 1.5(b), 1.5(c)

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 92-34: Disputed Contingent Fee Held and Arbitrated Under Rule 1.15
• RI EAP Op. 92-40: Attorney-Trustee and an Elderly Client of Doubtful Capacity

Currency note

This opinion was issued in 1992 (Opinion 92-42), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.5 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which amended Rule 1.5 (fees). 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 mentioned here.

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2092-42.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS ADVISORY PANEL
Opinion #92-42, Request #263
Issued July 23, 1992

An attorney seeks Panel advice as to whether the attorney may enter into a mixed fee arrangement whereby the attorney would receive both a contingency fee and fixed fee for services provided in the same litigation.

As a threshold matter, the Panel is not equipped to embark on the task of rendering an opinion as to the reasonableness of attorney's fees and therefore will not give general approval to such.

The Panel agrees that Rule 1.5 "Fees" and the comments thereto provide guidance for this inquiry. Rule 1.5(a) sets forth specific criteria which determines whether a fee is reasonable. Rule 1.5(b) provides that the fee should be communicated to the client and should be in writing. The comments to Rule 1.5 point out that an understanding and consent of the client regarding the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved in its computation. A written statement regarding the fee reduces the possibility of a misunderstanding and miscommunication between attorney and client. Rule 1.5(c) addresses contingency fee agreements and states that they should be in writing.

The Panel believes that if the attorney's fee arrangements conform with the guidelines established in Rule 1.5 and the comments, then a fixed fee agreement and contingency fee agreement for the same matter is not inconsistent with the Rules of Professional Conduct.