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OBA Ethics Counsel

Ethics Opinion No. 85

Adopted January 25, 1935; Overruled by Opinion No. 220 Adopted October 18, 1962.

A local bar association requests the opinion of the Board of Governors as to the propriety of its fixing a schedule of minimum fees to be adhered to by its members.

In response:

The Board of Governors recommends that no such schedule be adopted; and adopts as its opinion, Opinion No. 28 of the Committee of the American Bar Association on Professional Ethics. Canon 12 of the Canons of Professional Ethics of the American Bar Association is identical with Rule 14 of the Rules of Professional Conduct of the State Bar. The opinion is:

"A lawyer's adherence to any obligatory fee schedule which is applicable to every case of the same nature, would apparently result in a violation of Canon 12 of the Canons of Professional Ethics of this Association which states the various elements which a lawyer should consider in fixing his fees. The first paragraph of that canon states that the amount of the fee must in each case depend, to at least some extent, on the client's ability to pay, and the canon even goes so far as to say that the client's poverty may require a charge that is actually less than the value of the services rendered, or even none at all. Further than this, the six other guides which the canon provides for determining the proper amount of a fee, make it equally impossible to fix any standard fee for any given class of cases, as it would be impossible to fix any standard for all cases in any class to fall within the same category in so far as these guides are concerned. The canon plainly indicates that in fixing fees a lawyer should take into consideration all of the circumstances surrounding each individual case. While it states that the customary charges of the Bar for similar services is an element to be taken into consideration, it is only one element and should be considered together with other elements. Aside from such bearing as Canon 12 may have on the matter, it is the committee's opinion that any obligatory fee schedule must necessarily conflict with that independence of thought and action which is necessary to professional existence. The usefulness and capacity for service of the members of the profession must vary with their character, learning and experience, and to place the compensation of all of them on a labor union basis, irrespective of their ability or experience, would soon lessen the usefulness of the profession to the public."