Rule 4-200 states that a member “shall not enter into an agreement for, charge, or collect an illegal or unconscionable fee”.
Let's break this rule down a bit. The rule obviously covers entering into an illegal/unconscionable agreement, but what about attempting to collect that illegal or unconscionable fee? In Dixon v. State Bar (1985); the attorney was disciplined for simply attempting to charge an illegal or unconscionable fee.
In that case, the attorney attempted to charge such a fee by sending a proposal to the client that would allow the attorney to keep fees that were not earned. The court found that even though the attorney did not actually collect the fee, that the violation still occurred.
Now that we know that an attorney can be charged for collecting or even attempting to collect an illegal/unconscionable fee, how do we know what an illegal or unconscionable fee is?
The tuff part is that the rule, nor cases, define what an illegal fee is.
Rule 4-200 states that an unconscionable fee “..shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered into..”. The rule goes on to list a bunch of different factors that should be considered. Rule 4-200 list those factors to be the following:
(1) The amount of the fee in proportion to the value of the services performed.
(2) The relative sophistication of the member and the client.
(3) The novelty and difficulty of the questions involved and the skill requisite to perform the legal service properly.
(4) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member.
(5) The amount involved and the results obtained.
(6) The time limitations imposed by the client or by the circumstances.
(7) The nature and length of the professional relationship with the client.
(8) The experience, reputation, and ability of the member or members performing the services.
(9) Whether the fee is fixed or contingent.
(10) The time and labor required.
(11) The informed consent of the client to the fee.
(1-11 taken from Rule RPC 4-200)
How the California State Bar investigates this allegation:
I rarely see this charge. Usually if the State Bar is charging you of violating 4-200, they might be doing so based on some other theory of you misappropriating money. Even though I will routinely argue that this charge (4-200) is duplicative of the misappropriation charge, the State Bar's logic here is that if you are stealing money then you are also charging too much. The important thing to remember here is that this charge can be very subjective, making an unconscionable fee allegation against you very hard to prove against you, but also in a very weird way, an easy allegation to make against you as well.
For further information see the following:
- California Rules of Professional Conduct: 4-200
- Matter of Silverton (Rev.Dept. 2001) 4 Cal. State Bar Ct.Rptr. 252, 257
- Dixon v. State Bar (1985) 39 C3d 335, 339-340, 216 CR 432, 434
- C. §§ 1607, 1667
- Kallen v. Delug (1984) 157 CA3d 940, 950-951, 203 CR 879, 885