7
to be considered in determining the propriety of the fee.
2
As is true of other fee agreements (see,
e.g., Matter of Fordham, 423 Mass. 481 (1996), a flat fee could be deemed clearly excessive if
the fee was significantly higher than that charged for the same kind of matter by other lawyers of
similar experience in the same locality. A flat fee could also violate Rule 1.5(a) on the basis of
one or more of the other eight factors. In Matter of Broderick, 20 Mass. Att’y Disc. R. 53
(2004), a lawyer charged co-executors of an estate a $40,000 flat fee to cover legal fees to
complete the probate of an estate. The fee was found to be clearly excessive because the work
was neither novel nor difficult, the lawyer brought no particular expertise to the work, and he did
not finalize the estate.
In another matter, an upfront fee that was reasonable on its face violated the prohibition
against clearly excessive fees because the lawyer produced no benefit to the client. In Matter of
Woodhouse, 23 Mass. Att’y Disc. R. 787 (2007), a lawyer charged a client a $10,000 upfront fee,
which was to be credited against a potential contingent fee, for filing a wrongful termination
case. When the case filed by the lawyer was dismissed, partly because of the lawyer’s lack of
competence and diligence, the client complained and bar counsel filed a petition for discipline.
2
RULE 1.5: FEES
(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee or
collect an unreasonable amount for expenses. The factors to be considered in determining whether a fee is clearly
excessive include the following:
(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 by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.