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Disciplinary Rules

Almost every state and federal court provides a means of disciplining an attorney or judge for unprofessional conduct. This is usually done by the establishment of codes of professional conduct or of judicial conduct and of a means for an individual to file a form alleging a particular attorney or judge's breach of that code. In the larger states, there are usually special offices set up to receive and investigate these complaint forms. In the smaller states, such may have to be done by a formal filing with the court.

For example, Section 351 et seq of Title 28 of the United States Code provides a way for any person to complain about a federal judge or magistrate who the person believes "has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts" or "is unable to discharge all the duties of office by reason of mental or physical disability." It also permits the judicial councils of the circuits to adopt rules for the consideration of these complaints. Rules have been adopted under that authority. Complaints are filed with the clerk of the court of appeals on a form that has been developed for that purpose. Each complaint is referred first to the chief judge of the circuit, who decides whether the complaint raises an issue that should be investigated. (If the complaint is about the chief judge, another judge will make this decision.) The chief judge will dismiss a complaint if it does not properly raise a problem that is appropriate for consideration under section 351. The chief judge may also conclude the complaint proceeding if the problem has been corrected. If the complaint is not disposed of in either of these two ways, the chief judge will appoint a special committee to investigate the complaint. The special committee makes its report to the judicial council of the circuit, which decides what action, if any, should be taken. The judicial council is a body that consists of all the judges of the court of appeals in active service and three district judges. The rules provide, in some circumstances, for review of decisions of the chief judge or the judicial council.

To determine what procedure is followed in your state court or local federal court and to obtain the necessary forms, please contact the local administrative or disciplinary office. We have provided a list of these offices organized by state, territory, and federal court.

Legal Fees as Disciplinary Rule Violations

Normally in a civil case, each party bears the burden of proving each of their claims by a preponderance of the evidence. However, many states have established that a lawyer always bears the burden of proof in any proceeding to resolve a legal billing dispute, whether the lawyer appears as a plaintiff seeking to recover a fee or as a defendant in a suit for a refund. For example, in Massachusetts the law is that a lawyer may only enter into an agreement for, charge, or collect a reasonable fee from a client. Thus, an attorney who has the burden of proof is entitled to only such fees as can be shown are reasonable for the services actually performed regardless of the amount of work actually done or agreed upon by the legal fee contract. The trier of fact, judge or jury, decides what fee is reasonable for the services performed for a client.

The factors for the trier of fact to consider in determining whether a legal fee is reasonable include the following:

1. the time and labor required;
2. the novelty and difficulty of the questions involved in the representation of the client with regard to the services performed;
3. the skill required to perform properly the legal services rendered;
4. the fee customarily charged in the locality for similar legal services;
5. whether the fee was fixed or contingent;
6. the amount involved and the results obtained;
7. the time limitations, if any, imposed on the attorney by the client or by the circumstances;
8. the nature and length of the attorney’s professional relationship with the clients; and
9. the experience, reputation, and ability of the attorney.

Furthermore, in addition to the obligation to collect only a reasonable fee, an attorney may breach a professional ethical duty established by his respective Bar if the fees are so unreasonable that they reach the point of being illegal or clearly excessive. For example in Massachusetts, Supreme Judicial Court Rule 3:07, Mass. Rules of Professional Conduct Rule 1.5(a) requires that "a lawyer should not enter into an agreement for, charge, or collect an illegal or clearly excessive fee.” The factors to be considered in determining whether a fee is clearly excessive are essentially the same as stated above for the determination of reasonableness and 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 would preclude other employment by the lawyer;
3. the fee customarily charged in the locality for similar 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;
8. whether the fee is fixed or contingent.

For policy reasons, most states make the following type of fee agreements illegal and uncollectible regardless of how reasonable the actual fee itself may be: a contingent fee agreement based on a criminal trial or divorce result.

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. 

A fee is clearly excessive when, after review of the facts, a lawyer of ordinary prudence, experienced in the area of the law involved, would be left with a definite and firm conviction that the fee is substantially in excess of a reasonable fee. Whether or not an attorney actually did the work or spent the amount of time alleged to be the basis of a fee is not dispositive of the issue of whether the fee is reasonable. A client should not be expected to pay for the education of a lawyer when the lawyer spends excessive amounts of time on tasks which, with reasonable experience, would have become matters of routine. While the licensing of a lawyer is evidence that the lawyer has met the standards then prevailing for admission to the bar, a lawyer generally should not accept employment in any area of the law in which he or she is not qualified and in which preparation would result in unreasonable delay or expense to the client. For example, an attorney's inexperience in a particular case does not justify an extraordinarily high fee. It cannot be that an inexperienced lawyer is entitled to charge three or four times as much as an experienced lawyer for the same service. The disciplinary rule is intended to create explicitly an objective standard by which attorney's fees are to be judged; it is not intended to be a purely subjective comparison of what different attorneys may be charging for the same type of case or work.

The plaintiff is not required to show that the attorney's fee either directly or by reasonable inference involved dishonesty, bad faith, or overreaching by the client and does not require an inquiry into whether or not the clearly excessive fee was charged to the client under fraudulent circumstances. The issue of whether there was fraud or a breach of fiduciary duty is an issue separate and distinct from the issue of whether excessive legal fees were charged. A plaintiff can prove that there were charged excessive legal fees even though there was no fraud, overreaching, or improper acts by the defendant attorneys.

The test stated by the disciplinary rule is whether or not the fee "charged" is clearly excessive and not whether the fee is accepted as valid or acquiesced by the client. Whether or not the plaintiff accepted or acquiesced in a clearly excessive fee is irrelevant to the issue of whether or not the attorney charged an excessive fee.