Michael Sean Quinn*

www.michaelseanquinn.com

          Lawyering
is a noble profession. After all, it has to do with establishing justice and
maintaining social stability. The “establishing justice” dimension of legal
practice includes both establishing it in general and establishing it in
individual cases.

At the same time it is a source of livelihood
and therefore a business. In the world we live in, lawyering is a high prestige
business in which one can reasonably expect to make a living of substantial
size and sometimes of an enormous size. 
Thus fees are important, but they must also be just, honest, and fair,
among other things.  They must fall
within the ambient of the socially acceptable.


This is a discourse of one features of evaluating legal fees. There are many other dimensions. What counts as acceptable billing practice is another one. 

Determining whether given legal fees are acceptable
is a multidimensional matter, but the official ethical rules governing lawyer
conduct are important. They are so important, in fact, that they are often
translated, as it were, into the criteria the judiciary uses in arriving at
judgments as to the acceptability and therefore the enforceability of disputed
fees that come before it. 


In this essay, I want to consider two
foundational rules in two different systems for governing legal ethics. They
are designed to play the same function in their respective ethical systems, but
they are quite different as to key wording and so may be quite different as to
interpretation and application.

One of these rules is Rule 1.5(a) in the Model
Rules of Professional Conduct of the American Bar Association (2014). It’s
this:


A lawyer shall not make an agreement for, charge, or collect
an unreasonable fee or an unreasonable amount for expenses.



The other one
is Rule 1.04(a) of the Texas Disciplinary Rules of Professional Conduct. It’s
this:

A lawyer shall not enter
into an arrangement for, charge, or collect an illegal fee or unconscionable
fee. A fee is unconscionable if a competent lawyer could not form a reasonable
belief that the fee is reasonable. [Emphasis added,]



In the first sentences of these two rules there are only three
substantive differences regarding fees, or that’s the way I see it anyway.  (1) The Texas Rule uses the phrase “enter
into an arrangement,” while, the ABA Rule uses the phrase “make an agreement.”
Conceptually, as opposed to rhetorically, these are the same thing.  (2) The Texas Rule explicitly forbids an
illegal fee, while the ABA Rule does not. But no reasonable fee could possibly
be illegal as between a lawyer and a client. And (3) the ABA Rules uses the
words “unreasonable fee,” while the Texas Rule uses the words “unconscionable
fee.” (Notice that I am not discussing expenses.)


For now, I am also talking only about the first sentence of the Texas
Rule.  I will get to the second sentence
presently. Thus, the term “unconscionable” is the topic.  Significantly, perhaps, there are distinct
usages (and therefore, meanings) for this term.


What is the common, ordinary meaning of that term? Intuitively,
something is unconscionable if it is contrary, when correctly conceived, to the
objective conscience.
In
other words, it is contrary to propositions the objective and informed
conscience; it is unacceptable to the objective and informed conscience; it
cannot be brought within the informed and objective conscience.


WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY gives a
definition like this. Its #1 entry is “not guided by or controlled by
conscience,” and it list “unscrupulous” as a synonym and associates the term
with villainy. Its #2a entry is synonyms, and they are “excessive” and
“exorbitant.”  It #2b is “lying outside
the limits of what is reasonable or acceptable: shockingly unfair, harsh, or
unjust: outrageous.


The definition of “unconscionable” in BLACK’S LAW DICTIONARY is
roughly similar. The first definition is, when said of a person, “having no
conscience—unscrupulous. The second is, when said of a transaction, “showing no
regard for conscience; affronting the sense of justice, decency, or
reasonableness.


In either dictionary, the theme is ethics and morals, and
“unconscionable” does not just include merely light cases of the unreasonable,
such as inattention, a little sloppiness, not paying attention, or a little
stumbling here and there. It doesn’t come in bits and pieces or crumbs.


Thus, the criteria for a fee are being unconscionable in the
second sentence of Rule 1.04(a)—the reasonable belief of the competent lawyer
that a fee is not reasonable—must be understood in contexts.  And the context is this: that of a fiduciary
and that would include maximal loyalty, the duty of the zealous pursuit of the
client’s interests, and the subordination of the interests of the lawyer to the
interests of the client.  The reasonable
belief of the competent lawyer must apply to that situation: the lawyer is the
client’s fiduciary and hence the duties owed by the lawyer and hence the rights
the client has.


The use of the term “reasonable” in the second sentence of
1.04(a) does not exhaust the meaning of the terms “conscionable” and
“unconscionable,” though it is certainly also true that a lawyer as a party to
a client-attorney contract has a duty to charge unreasonable fees and that he
is not entitled to collect them by the contract, since his breach is material.  


Of course, it may also be true that if an attorney-client
agreement, arrangement, or contract is itself unconscionable, then the fees
specified in that contract are also unconscionable. They surely must be
unreasonable under contract law, at least because the contract has bad faith
built into it.  Plainly, if the
relationships outlined here are correct, all unconscionable fees are
unreasonable, though not all unreasonable fees, while uncollectable under
contract law, are not in and of themselves unconscionable. (Crumbs are not
slices, and slices are not loaves, though if crumbs have mold on them, the
slice should almost certainly not be eaten, nor—probably—should the loaf,
especially because not all poisons are visible.)


There is a good deal more to be said, of course, but that’s
all for now. In closing, however, it is good to keep in mind that 1.04 is a disciplinary rule; the law of fiduciary duties consists of other rules and principles; and the law of ordinary contracts consists of yet another set of rules and principles.  In the midst of this “jungle,” it must always be remembered that lawyers are fiduciaries, and those rules apply to them. (I use the word “jungle” partly because it is a cliche-is metaphor for complexity, but it is also a good thing to remember that the ethical rules governing rules (whether disciplinary or not, whether rules of law or otherwise) and the law and ethics of fiduciaries are itertwined.  

Michael Sean Quinn, Ph.D.,
J.D. Etc.

The Law Firm of Michael Sean Quinn and

Quinn and Quinn

                                 1300 West Lynn Street, Suite 208

                                             Austin,
Texas 78703

                                                 (512)
296-2594

                                            (512)
344-9466 – Fax

                                E-mail:  mquinn@msquinnlaw.com

Originally posted on 08/18/2015 @ 8:48 pm

Michael Sean Quinn, PhD, JD, CPCU, Etc

Michael Sean Quinn, PhD, JD, CPCU, Etc. (530)

One of Texas's leading insurance scholars, Michael Sean Quinn is a past chair of the Insurance Section of the State Bar of Texas and has a broad legal practice.

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