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Opinion 4

EC 2-19—Propriety of Charging Fee for Preliminary Investigation of Client’s Case in Absence of Agreement Between Attorney and Client

We have been asked to advise whether it is appropriate for an attorney to charge a fee when, prior to entering into any definite understanding regarding compensation or fees, the attorney concludes after preliminary examination that the case is not strong enough to pursue and so advises the prospective client.

Obviously the preferred course is for the attorney and client to agree at the outset whether there will be a charge for this preliminary investigation. See EC 2-19. A wide range of possible understandings are ethically permissible.

The inquiry put to us, however, concerns the situation in which the attorney and client do not have an explicit understanding regarding fees for the preliminary investigation. In such a situation, we believe it would be improper for the attorney to charge a fee unless it were clear from all the surrounding circumstances, including the level of sophistication of the client in dealing with lawyers and specific prior dealings between the client and the attorney, or other attorneys, that payment of a fee in this case was or should have been contemplated by the client.

As between attorney and client, the attorney ordinarily has the greater experience with legal fee arrangements. Hence, the attorney bears the responsibility for seeing that there is no likelihood of misunderstanding as to fee arrangements. See EC 2-19.

April 1975