DUI lawyer fees: understanding a fee agreement, with Florida examples

A fee agreement is the arrangement between a client and a lawyer about the fee and the work it pays for. Florida's lawyer-conduct rules offer one example of what such an arrangement addresses. Under R. Regulating Fla. Bar 4-1.5, when the lawyer has not regularly represented the client, the basis or rate of the fee and costs must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

The official comment to that Florida rule explains that it is not necessary to recite every factor underlying the fee, only those directly involved in its computation. It says it is sufficient, for example, to state that the basic rate is an hourly charge, a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee.

The comment adds that hourly billing or a fixed fee may not be the only bases for computing fees, and that a lawyer should, where appropriate, discuss alternative billing methods with the client. These are Florida statements; other states have their own rules, which this guide does not summarize.

Florida's fee rule defines retainers, flat fees and advance fees separately. A retainer is a sum paid to secure the lawyer's future availability; the rule states it is not payment for past legal services and is not payment for future services. A flat fee is a sum paid for all legal services to be provided in the representation, and the rule says a flat fee may be termed non-refundable.

An advance fee, under the same Florida rule, is a sum paid to the lawyer against which the lawyer will bill the client as legal services are provided. Because the rule defines these three terms separately, they are not interchangeable in Florida. Where a fee is nonrefundable in any part, the Florida rule requires that it be confirmed in writing and that the writing explain the intent of the parties as to the nature and amount of the nonrefundable fee.

Whatever label is used, Florida's rule states that its reasonableness test applies to all fees for legal services without regard to how the parties characterize them. These definitions do not settle whether any particular payment must be refunded or how it must be held; those questions depend on the actual arrangement and on rules not covered here.

Florida's fee rule lists factors to be considered as guides in determining a reasonable fee. They include the time and labor required, the novelty, complexity and difficulty of the questions involved, and the skill needed to perform the service properly; the likelihood that accepting the work will preclude other employment by the lawyer; and the fee or rate customarily charged in the locality for comparable services.

The Florida factors also include the significance of, or amount involved in, the subject matter, the responsibility involved and the results obtained; time limitations imposed by the client or circumstances, and any additional or special time demands by the client; the nature and length of the professional relationship; the experience, reputation, diligence and ability of the lawyers and the skill, expertise or efficiency reflected in the services; and whether the fee is fixed or contingent.

Where a fee is fixed as to amount or rate, that last factor also asks whether the client's ability to pay rested to any significant degree on the outcome. The rule states that time and customary rate need not be the sole or controlling factors; all factors should be considered and may justify a fee higher or lower than time and rate alone would produce. These factors are not a price and do not decide any particular fee.

Florida's fee rule lists separate factors for reasonable costs: the nature and extent of disclosure to the client about costs; whether a specific agreement covers the costs the client is expected to pay and how they are calculated; the actual amount charged by third-party providers; whether costs can be identified and allocated to the client or reasonably estimated; reasonable charges for in-house services; and the relationship and past course of conduct between lawyer and client.

The Florida rule states that all costs are subject to its test of reasonableness, and that when the parties have a written contract establishing the method for charging costs, costs charged under that contract will be presumed reasonable. The official comment says general overhead should be accounted for in the lawyer's fee, and that filing fees, transcription and the like should be charged at the actual amount paid by the lawyer.

The comment also says a lawyer may agree with the client to charge a reasonable amount for in-house costs or services, and should communicate enough that the client understands the costs or how they are calculated. The Florida Bar's older consumer pamphlet, updated in August two thousand eighteen, noted that associated costs such as court filing fees and court reporter costs are mostly set by third parties and usually cannot be controlled by the lawyer.

The Florida Bar's consumer pamphlet on attorneys' fees is marked as updated in August two thousand eighteen and warns that, because the law is continually changing, some provisions may be out of date. It is used here only as older educational background, alongside the current rule and comment, not as a statement of current law or current prices.

The pamphlet suggested that a client discuss prospective charges at the first meeting with the lawyer, along with the time anticipated to resolve the case, the difficulties likely to be encountered and the complexity of the legal issues. It described an early fee agreement as a way to avoid surprises and misunderstandings. That is educational advice; Florida's rule itself ties the communication duty to whether the lawyer has regularly represented the client.

For hourly arrangements, the pamphlet suggested asking for an estimate of the costs for the requested service and understanding what complications might arise and how they would affect the fee. It also cautioned that lawyers cannot always give an estimate, since they cannot control the other side. Florida's official comment adds that when developments make an earlier estimate substantially inaccurate, a revised estimate should be provided to the client.

The Florida sources used here do not say what a DUI fee includes or excludes. Florida's scope rule, R. Regulating Fla. Bar 4-1.2, provides that, if not prohibited by law or rule, a lawyer and client may agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing, subject to the exception described next.

The Florida rule makes one exception to the writing requirement: a lawyer giving advice in a short-term limited legal services program under the program rule it identifies is not required to obtain the consent in writing. When the lawyer and client agree to limit scope, the lawyer must advise the client about the applicability of the rule prohibiting communication with a represented person.

Because scope can be agreed, a practical question is what the actual quoted representation covers. That may include asking whether trial work is part of the engagement and whether any license matter is covered, handled separately or not included. Those are questions about a particular engagement, not findings about any reader's case or about what every DUI matter involves.

DUI.law does not publish prices for legal representation, and no general figure describes what a particular lawyer charges. The Florida Bar's older pamphlet itself noted that no set hourly rate for lawyers exists and that rates vary among lawyers. Florida's fee rule separately provides that a lawyer must not enter into an arrangement for, charge or collect a contingent fee for representing a defendant in a criminal case.

Comparing quotes is easier when each is read for scope, fee basis and costs, not only for its total. Drawing on the Florida rules, the official comment and the older pamphlet, questions to ask about a particular engagement include the following.

• What does the quoted representation cover, and is any limit on its scope stated in writing?
• Is trial work included in this engagement?
• Is any license matter covered, handled separately or not included?
• Is the payment described as a retainer, a flat fee or an advance fee, and what does that term mean in this agreement?
• Is any part of the fee described as nonrefundable, and is that confirmed in writing?
• Which costs are charged separately, and how is each calculated?
• If an estimate is given, what developments could change it?

Deadlines, limits and penalty ranges are set by each state’s statutes, so this page does not state them. Each state page shows them with the official source and the date they were verified — or says plainly that a figure has not been confirmed yet.