In re Fordham
423 Mass. 481, 668 N.E.2d 816 (1996)
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Rule of Law:
A lawyer's fee is "clearly excessive" if a lawyer of ordinary prudence, experienced in that area of law, would be firmly convinced the fee is substantially more than a reasonable fee, regardless of the attorney's good faith, the client's initial agreement to an hourly rate, or the client's failure to object to the bills.
Facts:
- On March 4, 1989, Timothy Clark, age 21, was arrested for operating under the influence (OUI) and other motor vehicle charges after failing a field sobriety test; his breathalyzer tests registered .10 and .12.
- Timothy's father, Laurence Clark, consulted with three lawyers who offered to handle the case for fees ranging from $3,000 to $10,000.
- Laurence Clark then discussed the case with attorney Laurence S. Fordham, a family acquaintance.
- During their meeting, Fordham informed the Clarks that he was a very experienced trial attorney but had never handled an OUI case, a criminal matter, or appeared in District Court.
- Fordham explained he would bill on an hourly basis for time spent by himself and his associates, and Laurence Clark hired him to represent Timothy.
- Fordham filed several pretrial motions, including a novel and ultimately successful motion to suppress the breathalyzer results.
- Following a two-day bench trial, Timothy was found not guilty of the OUI charge.
- Fordham ultimately billed Laurence Clark a total of $50,022.25, reflecting 227 hours of work performed by him and his associates.
Procedural Posture:
- Bar counsel filed a petition for discipline against Fordham with the Board of Bar Overseers, alleging a 'clearly excessive fee'.
- Fordham's motion to dismiss was recommended by the board chair, but bar counsel appealed to the full Board.
- The full Board referred the matter to a hearing committee.
- The hearing committee concluded the fee was not clearly excessive and recommended against discipline.
- Bar counsel appealed the committee's determination to the full Board of Bar Overseers.
- The Board, by a 6-5 vote, accepted the committee's recommendation and dismissed the petition for discipline.
- Bar counsel appealed the Board's dismissal to a single justice of the Supreme Judicial Court for Suffolk County (county court).
- The single justice denied Fordham's motion to dismiss the appeal and reported the case to the full Supreme Judicial Court for a decision.
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Issue:
Does an attorney's fee of over $50,000 for a first-offense OUI case, based on an hourly rate agreement with a client who was aware of the attorney's inexperience, constitute a 'clearly excessive fee' in violation of S.J.C. Rule 3:07, DR 2-106?
Opinions:
Majority - O’Connor, J.
Yes, the fee is clearly excessive. A fee's reasonableness must be judged by an objective standard: what a lawyer of ordinary prudence with experience in the relevant legal area would consider reasonable. The client should not have to pay for an attorney's education; Fordham's inexperience cannot justify the extraordinarily high fee, which was several times what experts testified was customary in the locality for a similar case. The court rejected the notion of a 'safe harbor' for hourly billing, clarifying that simply billing for time honestly spent does not preclude a fee from being excessive. Furthermore, a client's failure to object forcefully to bills, or 'acquiescence,' is not a defense, as the disciplinary rule focuses on the fee charged, not the fee accepted.
Analysis:
This decision establishes a significant precedent that an hourly fee agreement does not provide a 'safe harbor' against claims of excessive billing. It clarifies that the reasonableness of a fee is judged by an objective standard based on the time an experienced practitioner would require, not the actual time an inexperienced one spends. The ruling puts attorneys on notice that they cannot pass the costs of their self-education on to clients. It strongly reinforces that an attorney's professional obligation to charge a reasonable fee is paramount and cannot be overcome by client acquiescence or an initial, open-ended agreement.
