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OBA Ethics Counsel

Ethics Opinion No. 220

Adopted October 18, 1962

INQUIRY

An attorney habitually and notoriously offers to perform legal services for less than the fees set forth as a guide in a duly adopted minimum fee schedule. Does this continual fee cutting violate the Canons of Professional Ethics?

OPINION

Canon 7 provides in part as follows:

"Efforts, direct or indirect, in any way to encroach upon the professional employment of another lawyer, are unworthy of those who should be brethren at the Bar ...."

An attorney who habitually "underbids" his fellow lawyers is, in effect, soliciting business. This encroachment upon the practice of others, in the end result, neither benefits the public nor the legal profession. It constitutes a competitive technique which is not condoned.

The American Bar Association's formal Opinion No. 302 is as follows:

"... No lawyer should be in the position of bidding competitively for clients. It is proper for the profession to combat such evils by suggested or recommended minimum fee schedules and other practices which have a tendency to discourage the rendering of services for inadequate compensation. Such schedules represent the judgment of the local or State Bar Association as to what constitutes the minimum for reasonable charges for legal services, and should be so regarded by the lawyers and the public in the community."

The State Bar of Wisconsin in 1957 (Opinion No. 8) pointed out that the fee schedules:

"... were made after long and continuing study as to fees customarily charged for such services and deemed to be adequate to the end that a lawyer may fairly serve the public by being able to devote sufficient time and study to the work, being equipped to do it properly and keeping himself well informed in the law."

The Idaho State Bar (Opinion No. 7) stated the proposition thusly:

"An attorney who deliberately and habitually undercuts the customary charges of the Bar for similar services, and such fees cannot be justified under the guidepost outlined in Canon 12, is violating the Canons of Ethics."

Fees should be arrived at by consideration of all of the factors enumerated in Canon 12, and an habitual disregard for the minimum fee schedule promulgated by the Oklahoma Bar Association constitutes, in effect, a violation of Canons 7 and 12.

Nothing in this opinion should be construed as indicating that the minimum fee schedule of the Association is in any way mandatory. Lawyers must follow the principle enumerated in Canon 12 in fixing fees, and it is apparent that on occasion fees below the minimum will be not only proper, but required. The words "habitually" and "notoriously" are the key words which render the practice unethical. Advisory Opinion No. 85, adopted January 25, 1935, reported in Oklahoma Decisions 341-343 P.2d, disapproving the adoption of a minimum fee schedule, is overruled.