1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139-144
145-150
151-156
157-162
163-168
169-174
175-180
181-186
187-192
193-198
199-204
205-210
211-216
217-222
223-228
229
consent of the client, each lawyer assumes joint responsibility for the
representation; and
involved; and
[1] When the lawyer has regularly represented a client, there ordinarily will have evolved an
understanding concerning the basis or rate of the fee. In a new client-lawyer relationship, however,
an understanding as to the fee should be promptly established. It is not necessary to recite all the
factors that underlie the basis of the fee, but only those that are directly involved in its computation.
It is sufficient, for example, to state that the basic rate is an hourly charge or a fixed amount or an
estimated amount, or to identify the factors that may be taken into account in finally fixing the fee.
When developments occur during the representation that render an earlier estimate substantially
inaccurate, a revised estimate should be provided to the client. A written statement concerning the
fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum
or a copy of the lawyer's customary fee schedule is sufficient if the basis or rate of the fee is set
forth.
[2] A lawyer may require advance payment of a fee, but is obliged to return any unearned
portion. See Rule 1.16(d). A lawyer may accept property in payment for services, such as an
ownership interest in an enterprise, providing this does not involve acquisition of a proprietary
interest in the cause of action or subject matter of the litigation contrary to Rule 1.8(j). However, a
fee paid in property instead of money may be subject to special scrutiny because it involves
questions concerning both the value of the services and the lawyer's special knowledge of the value
of the property. If the property belongs to the client, the lawyer will also have to comply with the
requirements of Rule 1.8(a).
[3] An agreement may not be made whose terms might induce the lawyer improperly to
curtail services for the client or perform them in a way contrary to the client's interest. For example,
a lawyer should not enter into an agreement whereby services are to be provided only up to a stated
amount when it is foreseeable that more extensive services probably will be required, unless the
situation is adequately explained to the client. Otherwise, the client might have to bargain for further
assistance in the midst of a proceeding or transaction. However, it is proper to define the extent of
services in light of the client's ability to pay. A lawyer should not exploit a fee arrangement based
primarily on hourly charges by using wasteful procedures. When there is doubt whether a
contingent fee is consistent with the client's best interest, the lawyer should offer the client
on contingent fees, such as a ceiling on the percentage.
[4]In some circumstances, other law may regulate the fees and expenses charged by
lawyers. For example, Tennessee law regulates contingent fees in medical malpractice cases. See,
e.g., Tenn. Code Ann. § 29-26-120 (1980). In these circumstances, charging unlawful fees or
expenses may be considered unreasonable under section (a) of this Rules and may violate Rule 8.4
or other rules. See, e.g., Rule 8.4(d) (prohibiting conduct prejudicial to the administration of
justice).
[5] A division of fee is a single billing to a client covering the fee of two or more lawyers
who are not in the same firm. A division of fee facilitates association of more than one lawyer in a
matter in which neither alone could serve the client as well, and most often is used when the fee is
contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits
the lawyers to divide a fee on either the basis of the proportion of services they render or by
agreement between the participating lawyers if all assume responsibility for the representation as a
whole and the client is advised and does not object. It does not require disclosure to the client of the
share that each lawyer is to receive. Joint responsibility for the representation entails the obligations
stated in Rule 5.1 for purposes of the matter involved.
[6] If a procedure has been established for resolution of fee disputes, such as an arbitration
or mediation procedure established by the bar, the lawyer should conscientiously consider
submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in
representation of an executor or administrator, a class or a person entitled to a reasonable fee as part
of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another
party concerned with the fee should comply with the prescribed procedure.
See Rule 1.0(d)
“Reasonable” and “Reasonableness” See Rule 1.0(i)
Paragraph (a):DR 2-106(A) provides that a lawyer "shall not enter into an agreement for,
charge, or collect an illegal or clearly excessive fee." DR 2-106(B) provides that a fee is "clearly
excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a
definite and firm conviction that the fee is in excess of a reasonable fee."EC 2-17 states that a
lawyer "should not charge more than a reasonable fee . . . ."The requirement that charges for
expenses, as well as fees, be reasonable is new. With the exception of Subparagraphs (9) and (10),
the factors to be considered in determining the reasonableness of the fees and charges for costs are
substantially identical to those listed in DR 2-106(B).”
Paragraph (b): There is no counterpart to Paragraph (b) in the Tennessee Rules. EC 2-19
states that it is "usually beneficial to reduce to writing the understanding of the parties regarding the
fee, particularly when it is contingent."
Paragraph (c): There is no counterpart to Paragraph (c) in the Tennessee Rules. EC 2-20
provides that "[c]ontingent fee arrangements in civil cases have long been commonly accepted in the
United States," but that "a lawyer generally should decline to accept employment on a contingent
fee basis by one who is able to pay a reasonable fixed fee . . . ."
Paragraph (d)(1): There is no comparable provision in the Disciplinary Rules, but EC 2-20
provides that "contingent fee arrangements in domestic relations cases are rarely justified.'' The
Committee’s proposal with respect to contingent fees in domestic relations matters tracks but is not
identical to the approach taken in Hall v. Davis, slip op., No. 01-A-01-9404-CV-00146, 1994 Tenn.
App. LEXIS 534 (Tenn. Ct. App., Middle Section, Sept. 21, 1994), and Alexander v. Inman, slip
op., No. 01A01-9605-CH-00215, 1996 Tenn. App. LEXIS 801 (Tenn. Ct. App., Middle Section,
Dec. 11, 1996), reversed on other grounds, 974 S.W.2d 689 (Tenn. 1998). A noticeable difference
is that we have dispensed with a requirement of prior judicial approval. The Committee believes that
notification is a sufficient safeguard.
DR 2-106(C) more broadly prohibits "a contingent fee in a criminal
Paragraph (e):DR 2-107(A) permits division of fees only if: "(1) The client consents to
employment of the other lawyer after a full disclosure that a division of fees will be made. (2) The
division is in proportion to the services performed and responsibility assumed by each. (3) The total
fee does not exceed clearly reasonable compensation . . . ."Paragraph (e) permits division without
regard to the services rendered by each lawyer if they assume joint responsibility for the
representation.
Paragraph (a):The proposal is identical to ABA Model Rule 1.5(a) except for the addition
to the reference to “charges for expenses” and subparagraphs (9) and (10).
Paragraph (c): Except for a minor editorial change in the last sentence, the proposal is
substantively identical to ABA Model Rule 1.5(c).
Paragraph (d)(1): The proposal differs from ABA Model Rule 1.5(d)(1) which flatly
prohibits charging “any fee in a domestic relations matter, the payment or amount of which is
contingent upon the securing of a divorce or upon the amount of alimony or support, or property
settlement in lieu thereof.”
The proposal is identical to ABA Model Rule 1.5(e).
Paragraph (A): The Committee deleted a Paragraph (A)(2) that created a rebuttable
presumption of reasonableness when a knowledgeable client executed a written fee agreement:
knowledgeable client after consultation with the lawyer about the fee and
reasonable alternative fee arrangements shall be presumed reasonable unless
lawyer had reason to believe that the client did not understand the terms of the
agreement when it was signed. A knowledgeable client is
with lawyers and legal matters can be regarded as capable, after consultation
with the lawyer, of making reasonable judgments about the relative
advantages and disadvantages of the fee agreement, or
about and prior experience with lawyers and legal matters can be regarded as
capable, after consultation with the lawyer, of making reasonable judgments
about the relative advantages and disadvantages of the agreement.
considered in determining the reasonableness of a fee are sufficiently flexible to permit
consideration of the fact that a knowledgeable client agreed to the fee in writing.
Paragraph (D)(1)(6): The Committee deleted from Paragraph (D)(1)(b) the requirement that
a lawyer must secure prior judicial approval of a contingent fee to charged in a domestic relations
matter. The Committee thought that notification of the tribunal, coupled with the general prohibition
against charging unreasonable fees, affords clients sufficient protection against the misuse of
contingent fees in this context.
Made
1. In paragraph (a), the Committee has replaced “costs” with “expenses,” because costs
might be too narrowly understood or construed to mean court costs, and lawyers frequently incur
expenses other than court costs. The reference to expenses is broad enough to include all
expenditures by a lawyer incurred on behalf of a specific client.
2. The Board of Professional Responsibility has asked the Court to add an eleventh factor
to be considered in determining whether a lawyer’s fee is reasonable:“whether a lawyer of
ordinary prudence would be left with a firm and definite conviction that the fee is not in excess of a
reasonable fee.” This is a negative formulation of the current standard in DR 2-106(B), which
serves as a definition of a clearly excessive fee prohibited by DR 2-106(A). The Committee is
opposed to this change because this reference does not describe a factor to be considered in
determining whether a fee is reasonable, but rather is a specification of how certain the lawyer must
be that the fee is reasonable, after consideration of those factors. As such it introduces new and
undefined terminology that does not mesh with the terminology consistently employed throughout
the Rules. The Committee’s proposal requires that a lawyer’s fee fall within the range of fees that
would be charged by reasonably prudent and competent lawyers under the circumstances. SeeRule
An added reference to “a firm and definite conviction that the fee is not in excess of a
reasonableness fee” will only confuse the inquiry.
3. The Tennessee Trial Lawyers Association asked the Committee to replace the
requirement that a lawyer’s fee be “reasonable” with a less restrictive prohibition against charging
“a clearly excessive fee.”As noted by the TTLA,DR 2-106 (A) currently provides that a lawyer
shall not charge a clearly excessive fee, which is then defined in DR 2-106(B) in terms of whether a
lawyer of ordinary prudence would be left with a definite and firm conviction that the fee exceeds a
reasonable fee. For there to be such a definite and firm conviction, then, the fee would have to be
considerably well in excess of a reasonable fee. Particularly concerned about the difficulty of
determining the reasonableness of contingent fees, the TTLA argued that lawyers should be
afforded more leeway in charging for their services than is afforded by the proposed requirement
that fees be reasonable. In the end, however, the Committee was persuaded that the public, many of
whom are not well-informed about lawyer fee practices, need the greater protection afforded by a
more straightforward requirement that a lawyer’s fee be reasonable.
CONFIDENTIALITY
consents after consultation, except that the lawyer may make such disclosures as are impliedly
authorized by the client in order for the lawyer to carry out the representation.
reasonably believes disclosure is necessary:
prohibited or restricted by Rule 3.3;
resulting from the client’s commission of a crime or fraud in furtherance of which the
client has used the lawyer’s services, unless disclosure is prohibited or restricted by Rule
3.3;
lawyer and the client, to establish a defense to a criminal charge or civil claim against the
lawyer based upon conduct in which the client was involved, or to respond to allegations
in any proceeding concerning the lawyer's representation of the client.
reasonably believes disclosure is necessary:
(1) to comply with an order of a tribunal requiring disclosure but only if ordered to do so
by the tribunal after the lawyer has asserted on behalf of the client all non-frivolous claims
that the information sought by the tribunal is protected against disclosure by the attorney-client
privilege or other applicable law.
[1] This Rule governs the disclosure by a lawyer of information relating to the
representation of a client during the lawyer’s representation of the client. See Rule 1.8(b) with
respect to the use of such information to the disadvantage of the client. See Rule 1.9(c) with respect
to disclosure and adverse use of information relating to the representation of a former client.
[2] The observance of the ethical obligation of a lawyer to hold inviolate confidential
information of the client not only facilitates the full development of facts essential to proper
representation of the client but also encourages people to seek early legal assistance.
[3] Almost without exception, clients come to lawyers in order to determine what their rights
are and what is, in the maze of laws and regulations, deemed to be legal and correct. The common