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 lawyersÕ 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 attorneyÕs 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 Òlawyer of ordinary prudenceÓ 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 Òwithin a reasonable timeÓ 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. LouisianaÕs Rules do not limit the attorneyÕs 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 Òrarely justified.Ó EC 2-20 is more forceful on the issue of contingent fee arrangements in criminal cases, stating that they are ÒcondemnedÓ 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