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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Louisiana Legal Ethics

1.5   Rule 1.5 Fees

1.5:100   Comparative Analysis of Louisiana Rule

Primary Louisiana References: LA Rule 1.5
Background References: ABA Model Rule 1.5, Other Jurisdictions
Commentary:

1.5:101      Model Rule Comparison

Paragraphs (a) through (e) of LRPC 1.5 are identical to those in MR 1.5. The Louisiana Rules add to the general provisions adopted from the Model Rules by including LRPC 1.5(f) which sets forth specific rules regarding the payment of fees in advance of services and governs the accounts into which these funds must be placed.

1.5:102      Model Code Comparison

LRPC 1.5(a) requires lawyers’ fees to be reasonable, providing a series of eight factors to be considered in determining the reasonableness of a fee. While LRPC 1.5(a) affirmatively requires a reasonable fee, DR 2-106(A) and (B) impose a negative duty on attorneys to avoid charging excessive fees. Similar to the Louisiana Rule, these rules require that the attorney’s fee be reasonable, using the same factors listed in LRPC 1.5(a). DR 2-106(B) has an additional factor that is not included in LRPC 1.5(a), deeming a fee excessive if a “lawyer of ordinary prudence” would believe the fee was in excess of a reasonable fee. EC 2-16 reiterates the purpose behind reasonable fees, affirming that individuals should have access to legal aid at a reasonable fee. EC 2-17 continues that reasonable fees are necessary both to insure public access to legal aid and to insure that attorneys are adequately compensated. EC 2-18 repeats the factors for reasonableness found in both LRPC 1.5(a) and DR 1-106(B), and further states that special consideration is given for services rendered to another lawyer or a member of his immediate family. Such a consideration is not included in LRPC 1.5(a).

LRPC 1.5(b) requires that, in cases where the attorney does not regularly represent the client, the attorney must communicate with the client, preferably in writing, about the fee before or “within a reasonable time” after commencing the representation. The Model Code, in EC 2-19, suggests the same but does not limit the recommendation to new clients. Instead, it merely notes that clients who have limited experience with lawyers also have limited experience with the fees charged. LRPC 1.5(c) requires that contingent fee agreements, when not prohibited by Paragraph (d), are to be in writing and must state the method by which the fee will be determined. Upon conclusion of the representation, LRPC 1.5(c) also requires the lawyer to provide the client with a written statement of the outcome of the matter, remittance to the client, if recovery is awarded, and the method of determining the amount owed.

EC 2-20 condones the use of contingent fee arrangements and urges lawyers to fully inform their client as to all of the relevant factors surrounding such an arrangement before entering into one.

EC 5-7, recognizing that contingent fees sometimes give the lawyer an interest in the outcome of the litigation, advises that contingent fee arrangements should be entered into only when the arrangement is beneficial to the client since, in negotiating fees, the lawyer often has superior bargaining power. Louisiana’s Rules do not limit the attorney’s power to enter a contingent fee arrangement on that ground. LRPC 1.5(d)(1) forbids the arrangement, charge or collection of contingent fees in domestic relations matters where payment is contingent on the securing of a divorce, the amount of alimony/support awarded or the procuring of a property settlement. LRPC 1.5 (d)(2) forbids contingent fees for defendants in criminal cases. Under the Model Code, EC 2-20 states only that contingent fee arrangements in domestic relations cases are “rarely justified.” EC 2-20 is more forceful on the issue of contingent fee arrangements in criminal cases, stating that they are “condemned” by public policy. In addition, DR 2-106(C) provides that a lawyer shall not enter a contingent fee arrangement in criminal cases.

In dividing fees, LRPC 1.5(e) allows fees to be divided between lawyers who are not in the same firm only if the division is made in proportion to the services performed by each or according to a written agreement with the client wherein each attorney assumes joint responsibility for the representation. This provision would appear to allow referral fees where the referring attorney does a portion of the work without assuming joint responsibility or has an agreement with the client and assumes joint responsibility. Mengis, Professional Responsibility, 48 La L Rev 437, 438 (1987). Additionally, the client must be advised of and not object to such an arrangement and the total fee must be reasonable. While LRPC 1.5(e)(1) provides that a fee may be split based upon the proportion of services performed or the joint assumption of responsibilities for the representation, EC 2-22 and DR 2-107(A)(2) provide that division must be made in proportion to both the services performed and the responsibility assumed by each lawyer. Finally, LRPC 1.5(f) allows the payment of fees in advance of the rendition of services according to certain restrictions. The Model Code does not address the issue of the advance payment of fees.

1.5:200   A Lawyer's Claim to Compensation

Primary Louisiana References: LA Rule 1.5
Background References: ABA Model Rule 1.5, Other Jurisdictions
Commentary: ABA/BNA § 41:101, ALI-LGL §§ 50-54, Wolfram §§ 9.1-9.6

This section has not yet been completed.

1.5:210      Client-Lawyer Fee Agreements

This section has not yet been completed.

1.5:220      A Lawyer's Fee in Absence of Agreement

This section has not yet been completed.

1.5:230      Fees on Termination [see 1.16:600]

This section has not yet been completed.

1.5:240      Fee Collection Procedures

This section has not yet been completed.

1.5:250      Fee Arbitration

This section has not yet been completed.

1.5:260      Forfeiture of Lawyer's Compensation

This section has not yet been completed.

1.5:270      Remedies and Burden of Persuasion in Fee Disputes

This section has not yet been completed.

1.5:300   Attorney-Fee Awards (Fee Shifting)

Primary Louisiana References: LA Rule 1.5
Background References: ABA Model Rule 1.5, Other Jurisdictions
Commentary: ABA/BNA § 41:301, Wolfram § 16.6

This section has not yet been completed.

1.5:310      Paying for Litigation: The American Rule

This section has not yet been completed.

1.5:320      Common-Law Fee Shifting

This section has not yet been completed.

1.5:330      Statutory Fee Shifting

This section has not yet been completed.

1.5:340      Financing Litigation [see 1.8:600]

This section has not yet been completed.

1.5:400   Reasonableness of a Fee Agreement

Primary Louisiana References: LA Rule 1.5(a)
Background References: ABA Model Rule 1.5(a), Other Jurisdictions
Commentary: ABA/BNA § 41:301, ALI-LGL § 46, Wolfram § 9.3.1

This section has not yet been completed.

1.5:410      Excessive Fees

This section has not yet been completed.

1.5:420      "Retainer Fees:" Advance Payment, Engagement Fee, or Lump-Sum Fee

This section has not yet been completed.

1.5:430      Nonrefundable Fees

This section has not yet been completed.

1.5:500   Communication Regarding Fees

Primary Louisiana References: LA Rule 1.5(b)
Background References: ABA Model Rule 1.5(b), Other Jurisdictions
Commentary: ABA/BNA § 41:101, ALI-LGL § 50, Wolfram § 9.2.1

This section has not yet been completed.

1.5:600   Contingent Fees

Primary Louisiana References: LA Rule 1.5(c)
Background References: ABA Model Rule 1.5(c), Other Jurisdictions
Commentary: ABA/BNA § 41:901, ALI-LGL §§ 46, 47, Wolfram § 9.4

This section has not yet been completed.

1.5:610      Special Requirements Concerning Contingent Fees

This section has not yet been completed.

1.5:620      Quantum Meruit in Contingent Fee Cases

This section has not yet been completed.

1.5:700   Unlawful Fees

Primary Louisiana References: LA Rule 1.5(d)
Background References: ABA Model Rule 1.5(d), Other Jurisdictions
Commentary: ABA/BNA §§ 41:901, ALI-LGL § 48, Wolfram §§ 9.3.2; 9.4

This section has not yet been completed.

1.5:710      Contingent Fees in Criminal Cases

This section has not yet been completed.

1.5:720      Contingent Fees in Domestic Relations Matters

This section has not yet been completed.

1.5:730      Other Illegal Fees in Louisiana

This section has not yet been completed.

1.5:800   Fee Splitting (Referral Fees)

Primary Louisiana References: LA Rule 1.5(e)
Background References: ABA Model Rule 1.5(e), Other Jurisdictions
Commentary: ABA/BNA § 41:701, ALI-LGL § 59, Wolfram § 9.24

This section has not yet been completed.

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