When a client protests a bill, can the lawyer respond by submitting a higher bill for the same work, or charge the client for the time spent fighting over the fee?

Plain-English summary

A lawyer bills a client for work performed under the fee agreement. The client protests the amount of the bill. The opinion asks whether the lawyer may respond to the protest by submitting a higher bill for the same work.

The opinion answers no. It assumes the increased billing is not the result of a clerical error or a mistake discovered in the prior bill, but simply a desire to retaliate against the client for challenging the bill. Under Oregon RPC 1.5(a), a lawyer may not charge or collect an illegal or clearly excessive fee. In these circumstances, the opinion concludes any upwardly revised fee would be excessive, citing case law holding that adding charges to a bill for the firm's time in defending against a client's fee objection violates the rule.

The opinion adds that it would also be improper for the lawyer to charge the client for the time the lawyer spends responding to or resolving the client's dispute over the fees.

In practice

The opinion holds that, under Oregon RPC 1.5(a) as it stood at the time of the opinion, a lawyer cannot raise the fee for already-completed work as a response to a client's fee protest; such a revised fee is clearly excessive. The opinion also concludes the lawyer cannot bill the client for time spent contesting or resolving the fee dispute. Verify the current text of Oregon RPC 1.5 before relying on any specific point.

Common questions

Q: My client is disputing my bill. Can I send a bigger bill for the same work?

A: No. The opinion concludes a fee increased to retaliate for the client's protest is clearly excessive under RPC 1.5(a).

Q: Can I bill the client for the time I spend defending my fee?

A: No. The opinion concludes it is improper to charge the client for time spent responding to or resolving the client's dispute over the fees.

Q: What if I find a genuine error in the earlier bill?

A: The opinion assumes the increase is retaliatory, not a corrected clerical error or mistake. It expressly distinguishes a revision that simply reflects a desire to retaliate from a corrected billing error.

Background and rules framework

The opinion interprets Oregon RPC 1.5(a) (illegal or clearly excessive fees), corresponding to Model Rule 1.5. It applies that standard to a fee revised upward in response to a client's challenge and to charges for time spent litigating the fee dispute, drawing on Oregon disciplinary case law.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 1.5(a) / Model Rule 1.5 (fees)

Cases:

• In re Potts, 301 Or 57, 718 P2d 1363 (1986) (adding charges for defending against a fee objection violates the rule)
• In re Barber, 322 Or 194, 904 P2d 620 (1995)
• In re Bennett, 331 Or 270, 14 P3d 66 (2000) (charging the client for time resolving a fee dispute)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-69 (court-awarded fees and the agreed fee)
• OSB Formal Ethics Op. No. 2005-15 (excessive fees)

See also

• OSB Ethics Op. 2005-69: Who Gets a Fee Award That Exceeds the Agreed Fee
• OSB Ethics Op. 2005-15: Contingent Fees Paid in Installments

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-78.pdf