Model Rule 1.5: Fees

When it applies

This rule surfaces constantly in practice when setting up any fee agreement and is heavily tested on the MPRE through fact patterns involving contingent fee percentages, flat fees, and referral/fee-splitting arrangements between lawyers.

What the rule requires

• A fee must be reasonable, judged by factors such as time and labor required, novelty and difficulty of the issues, customary fees in the locality, the amount at stake, and the lawyer's experience and reputation.
• The scope of representation, the basis or rate of the fee, and the expenses the client will be responsible for must be communicated to the client, preferably in writing, before or within a reasonable time after starting representation. This does not apply when the lawyer will charge a regularly represented client on the same basis or rate.
• Contingent fee agreements must be in writing, signed by the client, and must state the method for determining the fee, including percentages at different stages and how expenses will be deducted.
• Contingent fees are prohibited in domestic relations matters where the fee is contingent on securing a divorce, or on the amount of alimony or support or of a property settlement in lieu of alimony or support.
• Contingent fees are prohibited in criminal defense representation.
• Division of a fee between lawyers not in the same firm is permitted only if all of the following are met: (1) the division is either proportional to the services each lawyer performed, or each lawyer assumes joint responsibility for the representation; (2) the client agrees to the arrangement, including the share each lawyer will receive, and that agreement is confirmed in writing; and (3) the total fee is reasonable.

Exceptions

• Contingent fees remain permissible in civil matters generally, including personal injury cases, despite the domestic relations and criminal defense bans.
• A flat or fixed fee arrangement does not need the same written contingency disclosures required for contingent fees.
• Fee-splitting between lawyers in the same firm is not governed by the cross-firm division rules.

How the MPRE tests Model Rule 1.5

• Students forget that the contingent-fee-in-divorce ban applies only when the fee depends on securing the divorce or the amount of support/property settlement, not to all domestic relations work (e.g., a contingent fee for collecting already-awarded alimony arrears may be permissible).
• MPRE questions test whether students know fee division between firms requires either proportional work or joint responsibility. They also require client agreement to the arrangement, including each lawyer's share, confirmed in writing. An informal referral fee is not enough.
• Questions often use a 'reasonableness' factor list distractor, asking students to identify which listed factor is NOT actually part of the reasonableness analysis.
• Students confuse the writing requirement: contingent fees must be in writing, but ordinary hourly fee arrangements only need to be communicated, not necessarily reduced to writing.