Can a lawyer bill a client at an hourly rate for a secretary or file clerk's time just because the staffer earned a weekend paralegal certificate?

Plain-English summary

A lawyer asked whether he could bill a client at an hourly rate for the time of a secretary, receptionist, or file clerk who had completed a six-weekend paralegal study certificate. The committee declined to decide the legal question of whether such a certificate makes someone a "paralegal," but addressed the ethics.

The committee concluded a lawyer may charge a flat hourly rate for services rendered, whether performed by a lawyer or by support staff, provided the client agrees to the arrangement in advance and the agreement does not call for an illegal or unconscionable fee or one that misrepresents the services. Under Rule 1.5(a) the fee must be reasonable, and under Rule 1.5(b) the basis or rate must be communicated to a client the lawyer has not regularly represented. The lawyer therefore must disclose the amount charged for non-lawyer employees' work, may not fold those services into the lawyer's own billed time without disclosing they were performed by non-lawyers, and should inform the client of the rate for each lawyer, paraprofessional, and other non-lawyer working on the case.

The committee added that Rule 1.4(b) requires explaining a matter enough for the client to make informed decisions, suggesting the lawyer must disclose the qualifications and type of work of the staffer, and that Rule 7.1 bars false or misleading communications. Accordingly, a lawyer may not bill for paralegal services rendered by someone not performing paralegal work, and issuing paralegal certificates to staff does not transform their duties into paralegal services. Citing ABA Formal Opinion 93-379, the committee noted that general overhead such as the salaries of secretaries, receptionists, and file clerks may not be billed to a client absent an agreement to the contrary.

Currency note

This opinion was issued in 1994, before the South Carolina Bar's adoption of the 2005 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a lawyer bill a client for a secretary's or file clerk's time?

A: The committee concluded a lawyer may bill an agreed hourly rate for support-staff time if the client agrees in advance and the fee is reasonable and not misrepresentative.

Q: Does a weekend paralegal certificate let the lawyer bill the staffer's work as paralegal time?

A: No. The committee said a lawyer may not bill non-paralegal work as paralegal services, and a certificate does not transform a staffer's duties into paralegal work.

Q: Can general overhead like secretarial salaries be billed?

A: The committee concluded, citing ABA Formal Opinion 93-379, that general overhead such as secretary, receptionist, and file-clerk salaries may not be billed to a client absent an agreement to the contrary.

Background and rules framework

The opinion applied Rule 1.5(a) and (b) (reasonable fees and communicating the fee basis), Rule 1.4(b) (explaining a matter so the client can make informed decisions), and Rule 7.1 (false or misleading communications), each corresponding to the like-numbered Model Rule, and relied on ABA Formal Opinion 93-379.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 1.5(a), (b) / Model Rule 1.5: reasonable fees; communicating the fee basis.
• South Carolina RPC 1.4(b) / Model Rule 1.4: explaining a matter to the client.
• South Carolina RPC 7.1 / Model Rule 7.1: false or misleading communications.

Other opinions cited:

• ABA Formal Opinion 93-379 (1993): billing for professional fees, disbursements, and overhead.

See also

• SC Bar Ethics Op. 96-13: Independent Paralegal Services
• SC Bar Ethics Op. 96-06: Credit Card Pre-Authorization for Fees

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-94-37/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 94-37

Can an attorney bill a client for a secretary, receptionist or file clerk's time at an hourly rate where the secretary, receptionist or file clerk has completed a six-weekend paralegal study certificate?

Summary:
Whether a secretary, receptionist or file clerk is a "paralegal" due to the completion of a six-weekend paralegal study certificate is a question of law. This Committee does not render decisions on legal issues. However, there are important ethical issues in this question which must be addressed. An attorney may charge a client a flat hourly rate for services rendered, regardless of whether the services were performed by a lawyer or by support staff, such as a secretary, receptionist or file clerk, provided the client agrees to the billing arrangement in advance, and the agreement does not call for the attorney to charge or collect an illegal or unconscionable fee, or one that misrepresents the legal services rendered.

Opinion:
Although it is not the responsibility of this Committee to advance opinions on legal issues such as what justifies denoting someone as a paralegal, the Committee does note that the American Bar Association has suggested that "[a] legal assistant is a person, qualified through education, training or work experience, who is employed or retained by a lawyer, law office, governmental agency or other entity in a capacity or function which involves the performance, under the ultimate direction and supervision of an attorney, of specifically-delegated substantive legal work, which work, for the most part, requires a sufficient knowledge of legal concepts that, absent such assistant, the attorney would perform the task." (American Bar Association, Memorandum: ABA Standing Committee on Legal Assistance - Position Paper on Licensure or Certification, and Definition of Legal Assistant (April 24, 1986).

Rule 1.5(a) provides that a lawyer's fee must be reasonable. Under Rule 1.5(b), when the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

Thus, a lawyer has a duty to disclose to a client the amount to be charged for the services rendered by the lawyer's non- lawyer employees. The lawyer may not include such services within the time billed by the lawyer without disclosing that the services were would be performed by non-lawyers. The client should be informed of the rate for each lawyer, paraprofessional, and other non-lawyer who will work on the client's case.

Further, Rule 1.4(b) requires that "[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." This obligation suggests that the lawyer must disclose the qualifications of and type of work to be performed by the secretary, receptionist or file clerk. This duty is supported by Rule 7.1 which provides: "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." A lawyer may not, therefore, bill a client for paralegal services rendered by an individual who is not performing paralegal services. Likewise, the issuance of paralegal certificates to a lawyer's staff does not transform all of the duties of those individuals into paralegal services. Recent ABA Formal Opinion 93-379 (December 6, 1993) states [i]n the absence of disclosure to the client in advance of the engagement to the contrary, the client should reasonably expect that the lawyer's cost in maintaining a library, securing malpractice insurance, renting of office space, purchasing utilities and the like would be assumed within the charges the lawyer is making for professional services." General overhead expenditures such as the salaries of secretaries, receptionists and file clerks, therefore, may not be billed to a client in the absence of an agreement to the contrary. "The lawyer's stock in trade is the sale of legal services, not photocopy paper, tuna fish sandwiches, computer time or messenger services." Id.