Could a local bar association adopt a binding schedule of minimum fees that its members had to follow?

Plain-English summary

A local bar association asked the Board whether it could properly fix a schedule of minimum fees that its members would be required to follow.

The Board recommended that no such schedule be adopted and adopted as its opinion ABA Committee on Professional Ethics Opinion No. 28, noting that Canon 12 of the ABA Canons was identical to Rule 14 of the State Bar's rules. Quoting that opinion, the Board explained that adherence to an obligatory fee schedule applicable to every case of the same nature would violate Canon 12, which directs that a fee depend in part on the client's ability to pay (so that the client's poverty may require a charge less than the value of the services, or none at all), and lists other guides that make it impossible to fix a standard fee for a class of cases. Beyond Canon 12, the Board adopted the view that any obligatory fee schedule must conflict with the independence of thought and action necessary to professional existence, and that placing all lawyers' compensation on a fixed basis regardless of ability or experience would lessen the profession's usefulness to the public.

Currency note

This opinion was expressly overruled by Oklahoma Opinion No. 220, adopted October 18, 1962; it is not current and is indexed only as historical research. It was issued in 1935, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. Subsequent developments in fee regulation also altered the landscape. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a bar association require members to follow a minimum fee schedule under this 1935 opinion?

A: The opinion recommended against it, reasoning that an obligatory schedule conflicted with the case-by-case fee factors of Rule 14 (Canon 12) and with professional independence. Note that this opinion was later overruled by Opinion No. 220 (1962).

Q: What fee factors did the opinion emphasize?

A: It quoted Canon 12's direction that a fee depend in part on the client's ability to pay, that customary charges are only one element, and that all the circumstances of each individual case must be considered.

Background and rules framework

The opinion applied Rule 14 of the canon-era Oklahoma Rules of Professional Conduct, which the Board described as identical to ABA Canon 12 on the factors for fixing a lawyer's fee, and adopted ABA Committee on Professional Ethics Opinion No. 28. The opinion predates the Model Rules and made no Model Rule citation. It was overruled in 1962 by Opinion No. 220.

Citations and references

Rules of Professional Conduct:

• Rule 14 (1929 Oklahoma Rules of Professional Conduct), identical to ABA Canon 12: the factors a lawyer should consider in fixing fees.

Other opinions cited:

• ABA Committee on Professional Ethics Opinion No. 28: an obligatory minimum-fee schedule conflicts with Canon 12 and professional independence.
• Oklahoma Opinion No. 220 (Oct. 18, 1962): overruled this opinion.

See also

• Okla. Bar Ethics Op. 71: Excess contingent fee in a workers' compensation award
• Okla. Bar Ethics Op. 72: Representing a collection agency for a fee from its commission

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-85/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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."