FAQs about Fees
By Dan Murdock, OBA General Counsel

It took me a while to finally figure out what "FAQ" meant. That acronym was not familiar to me in the early stages. Now after years of answering "frequently asked questions," I am somewhat more educated about FAQs. The Office of the General Counsel tries to answer questions from the members of the bar, a task to be handed in the near future by a soon-to-be hired Ethics Counsel. Many of the questions are repeated so it is thought that a frequent column in this form might provide assistance to all.

What better way to start than to talk about fees.

Q: What is a reasonable fee?

Rule 1.5(a) Oklahoma Rules of Professional Conduct requires that a lawyer's fee is reasonable. The term "reasonable" is not specifically defined but the rule lists eight non-exhaustive factors to be considered in determining reasonableness. These factors parallel the factors set forth in Oliver's Sports Center Inc. v. National Standard Ins. Co., 1980 OK 120, 615 P.2d 291.

Q: Are fee disputes considered disciplinary matters?

Ordinarily, controversies as to fees are not considered as grounds for a grievance investigation pursuant to Rule 1.4, RGDP. However, discipline has been imposed where an attorney received a fee and did not perform the promised services, OBA v. Spadafora, 1998 OK 28, 957 P.2d 114 and OBA v. Whitely, 1990 OK 46, 792 P.2d 1174.

Q: Can I pay a "referral fee"?

The term "referral fee" carries a negative connotation. This is probably because of its association with payment made to non-lawyers, sometimes called "runners." Referral fees between lawyers are acceptable as long as the following requirements of Rule 1.5(e) are met:

a) the total fee must be reasonable, b) the client must consent to the participation of all attorneys involved and c) the division of the fee must be in proportion to the work performed or, with the written consent of the client, the fee can be divided on any proportion as long as each lawyer assumes joint responsibility for the representation.

It is not required that the client know the exact division of the fee.

FAQs will appear in future issues of the Oklahoma Bar Association Journal. If there are questions you want addressed, let me know.

E-mail me at danm@okbar.org