Ethics Opinon 1976-4
SUBJECT: REQUEST FOR OPINION REGARDING QUOTATION OF FEE SCHEDULE TO MEMBERSHIP OF PROFESSIONAL ASSOCIATION.
An attorney has been approached by several small professional associations with regard to providing legal services to their membership. The associations request that the attorney furnish a description of the types of legal services to be performed and the charges to be set for specified services. May the attorney quote a fee schedule to the associations and their membership?
No. It would constitute an improper solicitation for an attorney to permit an association, to which he furnishes legal services, to publish his name or the schedule of his fees for various legal services available to members of the association.
STATUTES AND CANONS
Rule 2-101 of the Rules of Professional Conduct of the State Bar of California provides:
"A member of the State Bar shall not solicit professional employment by advertising or otherwise. Conduct permitted by Rules 2-102 through 2-106 shall not be deemed solicitation within the meaning of this rule."
Rule 2-104(D) of the Rules of Professional Conduct of the State Bar of California provides, in part:
"The furnishing of legal services by a member of the State Bar pursuant to an arrangement for the provision of such services to the individual member of a group, as herein defined, at the request of such a group, is not of itself in violation of these Rules of Professional Conduct if the arrangement:"
(1) permits any member of the group to obtain legal services independently of the arrangement from any attorney of his choice;
(2) is so administered and operated as to prevent . . .
(d) all publicizing and soliciting concerning the arrangements except by means of simple, dignified announcements setting forth the purposes and activities of the group or the nature and extent of the legal services or both, without any identification of the member or members of the State Bar rendering or to render such services.
"Nothing in this rule shall prohibit a statement in response to individual inquiries as to the identity of the member or members of the State Bar rendering or to render the services giving the name or names, addresses and telephone numbers of such member or members."
"As used in this rule, a group means a professional association, trade association, labor union or other nonprofit organization or combination of persons, incorporated or otherwise and including employees of a single employer, whose primary purposes and activities are other than the rendering or legal services."
Rule 2-107 of the Rules of Professional Conduct of the State Bar of California provides:
"(A) A member of the State Bar shall not enter into an agreement for, charge or collect an illegal or unconscionable fee.
"(B) A fee is unconscionable when it is so exorbitant and wholly dispropor-tionate to the services performed as to shock the conscience of lawyers of ordinary prudence practicing in the same community. Reasonableness shall be determined on the basis of circumstances existing at the time the agreement is entered into except where the parties contemplate that the fee will be affected by later events. Among the factors to be considered, where appropriate, in determining the reasonableness of a fee are the following:
"(1) 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 will preclude other employment by the lawyer.
"(3) The amount involved and the results obtained.
"(4) The time limitations imposed by the client or by the circumstances.
"(5) The nature and length of the professional relationship with the client.
"(6) The experience, reputation, and ability of the lawyer or lawyers performing the services.
"(7) Whether the fee is fixed or contingent.
"(8) The time and labor required.
"(9) The informed consent of the client to the fee agreement."
The Committee on Legal Ethics of the San Diego County Bar Association has considered a question involving an attorney retained by a union in order to handle its members' legal problems wherein the attorney would not charge more than the minimum bar fee schedule.
In Formal Opinion No. 1973-7, the Committee held that the attorney could be retained by the union to handle its members' legal problems pursuant to Rule 20 of the Rules of Professional Conduct, the predecessor of Rule 2-104(D) above. However, the Committee held that the attorney may not establish fees based upon the Bar Association's Minimum Fee schedule since it has been abolished.
In Formal Opinion No. 342, the Committee on Legal Ethics of the Los Angeles County Bar Association decided that no attorney should participate in competitive bidding for legal services to a governmental agency. The Committee said, "We are of the opinion that competitive bidding between lawyers, in response to such an invitation, likewise is improper."
The Committee on Legal Ethics of the Los Angeles County Bar Association ruled in Informal Opinion No. 1971-9 upon a nearly identical issue with respect to an attorney's furnishing of legal services to members of an Association. The Committee stated, "It would be improper for counsel to permit the Association to furnish its members with a schedule of reduced fees and names and the backgrounds of counsel." The Committee also based its ruling upon former Rule 20 of the Rules of Professional Conduct.
With respect to provisions of legal services to members of an association, it would appear that activities not specifically excepted by Rule 2?104(D) of the Rules of Professional Conduct would constitute improper solicitation within the meaning of Rule 2-101. Rule 2-104(D)(2)(d) specifically limits the publicizing of legal services available to members of an association to an announcement of the purpose, nature and extent of the legal services available. The Rule specifically prohibits any identification by such announcements of the attorney from whom the services are available. So also, it can be reasoned, is the publication without reference to the attorney who will perform such services at the quoted price.
One obvious reason for the request of such a fee schedule may be to permit a comparison between the rates of the attorney from whom they are requested and other members of the Bar. To that extent, publication would also be an improper bidding for legal services.
Finally, Rule 2-107 enumerates the specific factors an attorney should consider in establishing fees for legal services. The publication of an identical fee schedule to many different individuals would appear to preclude consideration of several of these factors which would relate to each prospective client individually. Therefore, it is the Subcommittee's opinion that it would be improper for an attorney to permit publication of a fee schedule to members of a professional organization or other association.
This opinion however does not purport to prohibit the joint consideration between representatives of the professional organization and the attorney of fees to be charged to members for specified legal services so long as the factors set forth in Rule 2-107 are weighed.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.