Bench & Bar May/June 2026

ABA Model Rule 1.5 was conceived in an industrial era paradigm and is now eco nomically irrational, ethically inconsistent, and technologically obsolete. Its continued application distorts incentives, rewards inef ficiency, and fails to capture the nature of professional value in the AI age. True rea sonableness in attorney fees must reflect the realities of AI, where expertise lies not in hours worked but in the wisdom to deploy technology responsibly, interpret its results, and protect the client’s interests in a digi tal legal ecosystem. In summary, attorney fees should be determined by models that reward value, align with client outcomes, and are transparent about the impact tech nology has on service delivery—moving well beyond the strictures of Rule 1.5 to fit the realities of modern legal practice. How ever, for an attorney having to justify their fee when using AI, I suggest that the dispute will turn on the number of hours devoted to the matter and on the relationship between efficiency and value. Specifically, has an attorney earned a lower fee by being more efficient? Or, may the lawyer charge a fee based on the value of the service performed rather than the number of hours consumed? So far, disciplinary authorities and courts have never required that technology savings be passed directly on to the client. It is imperative to argue that Rule 1.5(a) lists multiple factors in determining the reason ableness of a lawyer’s fee and only one of which is time. The Rule does not mandate that a lawyer charge a fee based solely on the amount of time devoted to the matter as there are many legitimate fee structures that are not tied to time, including: flat fees; contingent fees; and value-based billing. For example, if a lawyer charged a $25,000 flat fee for doing an appellate brief, even if AI helped complete the brief faster, the value of the work product to the client remains unchanged. It could be argued that the use of AI is just another productivity tool that increases efficiency, like previous techno logical advances, all of which reduced the amount of time devoted to matter, and did not require a reduced fee. Rule 1.5 includes that consideration be given to “the fee customarily charged in the SHELLY’S CONCLUSION

locality for similar legal services.” Thus the relevant comparison is: What do competent lawyers charge for services that have been rendered and not on how many hours did this particular lawyer take to perform the service. If the lawyer charged a market-rate fee for a comparable brief, the fee remains reasonable. The lawyer’s strongest overall argument is that Rule 1.5 regulates the reasonableness of the fee charged, not the tools used to pro duce the work. If the fee is consistent with market rates, reflects the value of the ser vice, and is not based on misrepresentation of time, the lawyer’s use of AI does not make the fee unreasonable. In evaluating the issue a reviewing authority should consider the following: • The overall fee structure – whether hourly; flat fee; or a contingent fee; • The extent and quality of the disclo sure to the client; • The market rate for similar services; • The quality and ingenuity of the work product; and • If on a strictly time basis was there a misrepresentation of the time spent. The Bottom Line is that Rule 1.5 does not require attorneys to charge clients based on inefficiency. The ethical standard is whether the fee is reasonable in light of all of the Rule 1.5 factors and is consis tent with market practice. The use of AI is simply a modern efficiency tool analogous to computerized legal research or document automation. Because the fee charged is con sistent with customary fees for comparable work product, the benefit to the client, and was not based on misrepresentation of time, the lawyer’s use of AI does not render the fee unreasonable. It is with this in mind that I present the comments of one of my “loyal” AI collaborators, ChatGPT, and my proposal for a new Rule 1.5(a) and (b). CHATGPT’S OPINION “RULE 1.5 IS DEAD: WHY WE NEED A NEW FEE MODEL IN THE AGE OF AI” Let’s be honest: ABA Model Rule 1.5 is a relic of the typewriter age. It tells us to measure a “reasonable fee” by time, labor, and personal effort. But today, the smart est lawyer in the room may be a lawyer who uses AI responsibly—who drafts in

minutes what used to take days, and who uses technology not to inflate time but to elevate quality. So how does Rule 1.5 treat that lawyer? It punishes them. The faster and smarter they work, the less they can charge. The lawyer who doesn’t adopt technology spends three days doing what could be done in three minutes—gets to bill more. That’s not ethics. That’s economic absurdity. The rule assumes that value comes from sweat, not judgment. But clients don’t hire lawyers for muscle memory. They hire them for wisdom, for discernment, for trust. In the AI era, the lawyer’s value is not in typing words—it’s in knowing which words the machine got wrong. If the profession is serious about tech nology competence (and the ABA says we are), we can’t cling to a fee model that rewards inefficiency. We need to replace Rule 1.5’s time-and-labor model with a value-and-judgment model—one that mea sures reasonableness by results, reliability, and responsibility. The point of professional ethics isn’t to pre serve an hourly economy. It’s to preserve trust. And trust today comes from the human lawyer who masters, supervises, and stands behind the machine. Rule 1.5 had a good run. But it belongs in the museum—right next to carbon copy and the Dictaphone. SHELLY’S PROPOSED RULE 1.5 — LAWYER FEES AND USE OF ADVANCED TECHNOLOGY 12 (A) GENERAL STANDARD OF REASONABLENESS A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. In determining the reasonableness of a fee, the factors to be considered include, but are not limited to: 1. The value and impact of the legal service provided, measured by ac curacy, reliability, timeliness, and the benefit to the client; 2. The judgment, oversight, and verification exercised by the law

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