NYSBA Ethics Opinion 05
11.19.1964
NEW YORK STATE BAR ASSOCIATIONlegal fees, solicitation
Professional Ethics Committee Opinion
Opinion #5 – 11/19/64 (5-64)
Topic: Minimum Fee Schedule.
Digest: Lawyer may not depart from minimum fee schedule where it is a means to solicit and advertise.
Canon: Former Canon 12
The President of this Association has requested a formal opinion on the question:
“Is it ethical for a lawyer habitually to perform legal services for less than the fee set forth in a duly-adopted fee schedule, and to let it be known by whatever means, that he will charge less than is provided for in such schedule?”
Canon 12:
“In fixing fees, lawyers should avoid charges which overestimate their advice and services, as well as those which undervalue them. *** In determining the amount of the fees, it is proper to consider:
***3. The customary charges of the Bar for similar services, *** In determining the customary charges of the Bar-for similar services, it is proper for a lawyer to consider a schedule of minimum fees adopted by a Bar Association, but no lawyer should permit himself to be controlled thereby or to follow it as his sole guide in determining the amount of hi a fee.”
References:
American Bar Association Opinions:
28 (1930); 171 (1937); 190 (1939); 302 (1961) OPINION
Canon 12 sets forth six factors to be considered in fixing fees, of which only one is a fee schedule adopted by a Bar Association. To use such a schedule as the sole standard, whether the fee fixed be greater or less than the schedule or exactly in accordance therewith, is, in the opinion of this
Committee, improper.
Merely to depart from the fees recommended in such a schedule is not unethical where the departure results from consideration of the other factors listed in the Canon.
But to let it be known, by whatever means, that a lawyer will customarily charge for his services less than the recommended fees set forth in a duly adopted schedule is not in accordance with Canon12 and is unethical as a form of solicitation and advertising.
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