July 16, 2025 – If my client agrees to pay my fee, that makes my fees reasonable, correct?

Question

I know that under SCR 20:1.5(a), a lawyer’s fees must be reasonable, and under SCR 20:1.5(b), most fee agreements need to be in writing.

I’m curious as to the interplay of those two rules. If, at the beginning of the representation, the client has agreed and willingly pays the fee, doesn’t that per se make my fees reasonable?

Can my fee still be unreasonable even if the client has willingly paid it?

Answer

Yes, it can be.

As you’ve correctly noted, SCR 20:1.5(a) states that a lawyer shall not “make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”

This squarely puts the responsibility on the lawyer to ensure that whatever fee is charged and/or collected is reasonable – it is not the client’s responsibility to object to a fee as unreasonable.

SCR 20:1.5(a) enumerates eight factors to be considered in determining whether a fee is reasonable:

• the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

• the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

• the fee customarily charged in the locality for similar legal services;

• the amount involved and the results obtained;

• the time limitations imposed by the client or by the circumstances;

• the nature and length of the professional relationship with the client;

• the experience, reputation, and ability of the lawyer or lawyers performing the services; and

• whether the fee is fixed or contingent.

It is also true that, with few exceptions,^[1] the scope of the representation and the basis or rate of the fee and expenses “shall be communicated to the client in writing, before or within a reasonable time after commencing the representation.”^[2]

Written Agreements and Reasonableness

The existence of a written fee agreement and a meeting of the minds between a lawyer and client might be a starting point for an analysis of the reasonableness of fees.

But it is not dispositive, even if the agreement constitutes a valid contract. A disciplinary court may still find the fees to be unreasonable.

A disciplinary decision out of Vermont illustrates this point. In that case, a lawyer charged a debt-reduction client more than $1,100 in fees and costs that were not tied to work or expenses actually incurred by the lawyer. The Vermont Supreme Court affirmed a finding that the fees and costs were unreasonable, despite a valid contract knowingly signed by the client. The court noted that it is unethical for lawyers to charge unreasonable fees “even if they are able to find clients who will pay whatever a lawyer’s contract demands.”^[3]

In another case, a lawyer performed significant nonlegal services for a client.^[4] The lawyer explained to her client that he could hire someone else to perform the nonlegal services at a much cheaper rate, but the client agreed to pay the lawyer her legal rate for those services. Notwithstanding the client’s agreement to the fees, the lawyer was found to have violated SCR 20:1.5(a).^[5]

Continent Fees and Reasonableness

Contingent fees are also subject to the reasonableness standard – and again, regardless of client approval, must pass muster under the factors enumerated in SCR 20:1.5(a).^[6]

For example, an Illinois lawyer gave the client a choice – an hourly rate of $175 or a 1/3 contingent fee – for legal services to “recover” $450,000 in assets belonging to the client.

The client chose the contingent fee. However, because the client’s entitlement to the assets was never at issue, the negligible work necessary to secure the assets was largely ministerial.

After the death of the client, the executor of the client’s estate filed a disciplinary complaint and a civil action against the lawyer regarding the $159,648.60 in fees paid to the lawyer under the contingent fee agreement. The executor and the lawyer settled the civil action and negotiated the fee down to $28,000, which represented 160 hours of work at an hourly rate of $175. The lawyer repaid the estate the difference of $131,648.60 plus interest.

In the disciplinary matter, the court found a violation of SCR 20:1.5(a) and emphasized the fact that the client never requested a renegotiation of the fee and never filed a grievance did not obviate the unreasonable nature of the fees:

Respondent comments in his brief that [his client] never asked him to renegotiate his fee. … [The client’s] failure to ask for a renegotiation likely resulted from respondent’s never explaining to [her] the correct terms of a contingent fee – the fee is paid only if there is a settlement or judgment resolving the situation in the client’s favor – due to respondent’s own ignorance [of contingent fees]. In addition, respondent apparently never explained to [his client] what actions he took to “recover” the certificates of deposit; while respondent testified that he reported to [his client] as he received information, he has never said that he explained to her how he was achieving the “recovery.” Regardless, the unethical nature of respondent’s actions in collecting an excessive fee is not ameliorated by [his client’s] failure to question him about it or to file a complaint with the Commission.^[7]

The court also noted as “of particular interest” this clause in the release settling the civil matter: "Gerard has asserted and continues to assert a right to said fees paid to him based on the terms of a disputed contingency contract between [his client] and Gerard for the recovery of certificates of deposit, other assets and professional services rendered."^[8]

In a 1979 case out of Illinois, a lawyer charged a client a $5,000 “fixed fee” for representation in a simple battery case. The case was dismissed at the first hearing when the victim asked that the charge be dropped.^[9] The client calculated the lawyer had completed 5 to 6 hours of work, while the lawyer calculated he had done 10 hours of work.^[10]

The lawyer refused to refund any of the fees paid by the client. During the disciplinary proceeding, the lawyer argued that fixed-fee agreements, when freely entered into, are not subject to scrutiny by a disciplinary committee and may not form the basis for disciplinary action against an attorney. The disciplinary agency disagreed and found that the lawyer had charged an excessive and “unconscionable” fee.^[11]

In short: a client’s acquiescence to an attorney’s misconduct does not purge it of its unethical character.^[12]

Conclusion

Many factors go into analyzing the reasonableness of a fee. A client’s agreement to a fee does not, in and of itself, make the fee reasonable. Despite the existence of a valid contract, a lawyer may still be subject to discipline for agreeing to, charging, or collecting an unreasonable fee.

Endnotes

[1] SCR 20:1.5(b) reads in its entirety:

(1) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate as in the past. If it is reasonably foreseeable that the total cost of representation to the client, including attorney's fees, will be $1000 or less, the communication may be oral or in writing. Any changes in the basis or rate of the fee or expenses shall also be communicated in writing to the client.

(2) If the total cost of representation to the client, including attorney's fees, is more than $1000, the purpose and effect of any retainer or advance fee that is paid to the lawyer shall be communicated in writing.

(3) A lawyer shall promptly respond to a client's request for information concerning fees and expenses.

[2] SeeWisconsin Formal Ethics Opinion E-09-03 for a full discussion of what information regarding fees and expenses must be communicated to a client.

[3] In re Sinnott, 845 A.2d 373 (Vt. 2004).

[4] See “Charging Legal Fees for Nonlegal Work,” 98 Wis. Law. 25 (Jan. 2025), for a discussion of how a similar analysis also leads to the conclusion that it is unreasonable to charge legal fees for nonlegal work.

[5] In re Guste, 185 So. 3d 740 (La. 2016).

[6] See ABA Comment [3] to SCR 20:1.5(a).

[7] In re Gerard, 132 Ill. 2d 507, 548 N.E.2d 1051 (1989).

[8] Id.

[9] Interestingly, the lawyer had another lawyer appear on his behalf at the hearing and told his client not to tell the second attorney how much he had paid in fees.

[10] $5,000 in 1979 is equivalent to over $23,000 in 2025, which calculate to a fee of about $2,300/hour if the lawyer had performed 10 hours of work as he asserted he had.

[11] In re Kutner, 78 Ill. 2d 157 (1979). The court found the fee not only to be excessive, but also “unconscionable.” Every state besides California has adopted either an “unreasonable fee” standard or an “excessive fee” standard. In California, a lawyer is subject to discipline only if the fee is “so exorbitant and wholly disproportionate to the services performed as to shock the conscience.” Bushman v. State Bar, 11 Cal. 3d 558, 563 (1974).

[12] See In re Himmel (1988), 125 Ill. 2d 531, 542, citing In re Thompson (1963), 30 Ill. 2d 560, 569 (absence of client complaints about respondent’s misconduct does not render him immune from discipline).