Can Lawyers Add Surcharges to Their Bills?
Mark Bassingthwaighte, ALPS Missoula, Montana
Two quick stories. Years ago, I had a plumbing emergency. The short version is I discovered a broken water line in my kitchen on a Thanksgiving eve. That line needed to be repaired immediately or Thanksgiving was going to be a bust. Trust me, that service call cost me. My second story is about packages. Now that all of our kids are grown and living throughout the U.S., my wife sends more packages than she used to. I'm often tasked with the responsibility of boxing things up and getting them shipped off. Unfortunately, I'm not always as prompt with that as I should be, which means I sometimes must pay a premium to make sure those packages get to wherever they're going on time. Heaven forbid something arrives a day or so late.
These two stories describe common situations where we all know going in that we're going to have to pay a little more than we would under normal circumstances. A plumber's rates are higher for holiday emergencies and shipping rates are higher for expedited service. That's just the way it is. Given this reality, I'm led to ask this question. Is it ethically permissible for a lawyer to add a surcharge to a client bill for having to respond to an emergency or agreeing to provide an expedited legal service? As with so many things in life, the answer is, it depends.
To understand why, we need to start by looking at ABA Model Rule 1.5—Fees. Most lawyers know that, in general, this rule states a lawyer's fee is to be reasonable and the basis or rate of the fee and expenses are to be communicated to the client. So, if you tell your clients in advance that your practice is to add a 10% surcharge to your fee for work you have to do on weekends, is that reasonable? Perhaps, but here's the problem. Where's the line? If 10% is reasonable, is 50%? How about 200%?
Rule 1.5 also sets forth factors a lawyer is to consider when trying to determine whether a particular fee is reasonable. Take note that section (a)(5) under Rule 1.5 states that "the time limitations imposed by the client or by the circumstances" is one of the factors set forth. Given this language it would appear that a surcharge might be appropriate in certain circumstances, as long as the other seven factors listed aren't overlooked, which...