Litigation: Using case law and ethical rules to negotiate “reasonable” billing rates

Attorneys generally have a fiduciary obligation to seek payment of only those fees that are reasonable

There are some creative tools that in house counsel can utilize to assure that the hourly litigation rates which are charged are reasonable and appropriate. In our last article we discussed the role billing surveys play in these rate negotiations.

In most states, it is an attorney’s professional responsibility and fiduciary obligation to seek payment of only those fees that are “reasonable.” Rule 1.5(a) of the ABA Model Rules of Professional Conduct expressly provides that “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” Therefore, a key component of the statutory and case law concerning attorney billings is rooted in the ethics arena. All attorneys owe fiduciary duties to their clients and, in most jurisdictions, to a third-party payor as well.

Contributing Author

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David McMahon

David McMahon is the Managing Partner in Barger & Wolen LLP’s San Francisco office. His practice focuses on large complex litigation. He has worked on...

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