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Syllabus
A lawyer who habitually and deliberately performs legal services for less than the customary charges of the Bar for similar services or less than the fees recommended in the minimum fee schedule adopted by his local Bar Association is engaged in the improper solicitation of business which is unethical.
Facts
A lawyer engaged in the practice of law has over a period of time habitually and deliberately performed legal services for less than the customary charges of the Bar for similar services or less than the fees set forth in the minimum fee schedule adopted by his local Bar Association.
Opinion
Canon 12 of the Canons of Professional Ethics advises that in fixing fees lawyers should avoid charges that overestimate their advice and services, as well as those which undervalue them. Canon 12 states, in part:
In determining the amount of the fee, it is proper to consider: (1) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite properly to conduct the cause; (2) whether the acceptance of employment in the particular case will preclude the lawyer's appearance for others in cases likely to arise out of the transaction, and in which there is a reasonable expectation that otherwise he would be employed, or will involve the loss of other employment while employed in the particular case or antagonisms with other clients; (3) the customary charges of the Bar for similar services; (4) the amount involved in the controversy and the benefits resulting to the client from the services; (5) the contingency or the certainty of the compensation; and (6) the character of the employment, whether casual or for an established and constant client. No one of these considerations in itself is controlling. They are mere guides in ascertaining the real value of the service. 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 his fee. In fixing fees it should never be forgotten that the profession is a branch of the administration of justice and not a mere money-getting trade.
We note that a fee schedule is not to be viewed by lawyers as controlling or as an absolute criterion in fixing the amount of their fees. However, "Efforts, direct or indirect, in any way to encroach upon the business of other lawyers are unworthy of those who should be brethren at the bar." Opinion No. 8, Committee on Professional Ethics of the State Bar of Wisconsin (1957). It should be obvious that any lawyer who, in setting his fees, deliberately and habitually undercuts the customary charges of the bar for similar services is soliciting employment. This fact is bound to become known to the public. Such solicitation of employment, directly or indirectly, is proscribed by Canon 27 of the Canons of Professional Ethics. See also Opinion No. 7, Committee on Professional Ethics of the Idaho State Bar (March, 1958). This would be true regardless of the existence of a minimum fee schedule.
Canon 12, as construed in Opinions 28, 56, and 171 of the Committee on Professional Ethics of the American Bar Association, seeks to preserve the personal relationship between lawyer and client, leaving the fixing of the fee to the independent judgment of the lawyer in each case. Canon 12 lists a number of considerations to assist the lawyer in determining a reasonable charge. One of these considerations is a schedule of minimum fees adopted by his Bar Association.
As stated by the President of the Illinois Bar Association, "It is a far cry from the honest effort of a conscientious lawyer to determine what would be a reasonable fee for him to charge, to the practice of habitually undercutting the fees charged by the other members of the bar, and letting it be known that whatever his brothers charge, he will take on the work for less." The Board of Governors of the Illinois State Bar Association held, in Professional Ethics Opinion No. 194, that this conduct amounted to advertising and solicitation in a not-too-subtle form and, therefore, was violative of Canon 27.
Finally, we note that Resolution XXVIII of Hoffman's Fifty Resolutions (1836) states "As a general rule I will carefully avoid what is called the 'taking of half fees.' And though no one can be so competent as myself to judge what may be a just compensation for my services, yet when the quiddam honorarium has been established by usage or law, I shall regard as eminently dishonorable all underbidding of my professional brethren. On such a subject, however, no inflexible rule can be given to myself, except to be invariably guided by a lively recollection that I belong to an honorable profession." The Fifty Resolutions of David Hoffman of the Baltimore bar, along with Sharswood's Professional Ethics, formed the foundation for our modern Canons of Ethics. Our thesis is that the practice of law today is the same honorable profession as that of which David Hoffman spoke.
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