NCSB Journal Spring 2026

charged in the locality for similar legal services, and the experience and reputation of the lawyer performing the services. Rule 1.5(a)(1)- (8); see ABA Formal Ethics Op. 11-458 (“Changes in circumstances, including changes in the factors listed in Rule 1.5(a), occurring after the client-lawyer relationship was formed may cause the client, the lawyer, or both, to seek to revisit the fee arrangement.”). Further more, the reasonableness of an amended fee agreement with a client will depend on the context and circumstances of the representa tion and the attorney-client relationship, as well as a variety of considerations including but not limited to the sophistication of the client, the practice area and its related customs, the length of the representation and the com plexity of the issue(s), and the history of inter action between the client and the lawyer. See ABA Formal Ethics Op. 11-458 (“The rea sonableness of a modified fee agreement should therefore be assessed in relation to the circum stances at the time of the modification.”). Here, Lawyer notified Client of the potential for an intended increase in the orig inal fee agreement, then provided Client with reasonable notice of the specific intended increase prior to charging the increased rate. Client has “full knowledge of all material cir cumstances” regarding the fee agreement and the proposed increase, and Lawyer has pro vided sufficient reasonable notice to permit Client to make an informed decision about continuing or terminating the representation. Rule 1.5, cmt. [5]. Under these circum stances, if Client does not respond to Lawyer’s notice regarding the intended increase, Lawyer may infer Client’s accept ance of the modified fee agreement and impose the intended increase as described in the notice. ABA Formal Ethics Op. 11-458 (2011). Inquiry #4: Same facts as Inquiry #1, except the orig inal fee agreement limits any increase in hourly rates to occur no more than annually and to be no greater than a set percentage. May Lawyer increase the hourly rate billed to Client based upon the fee agreement, regard less of any notice provided to Client? Opinion #4: Yes, provided the resulting rate is not clearly excessive. Under these facts, Lawyer has informed Client of “the basis or rate of the fee and expenses for which the client will

be responsible...before or within a reasonable time after commencing the representation[,]” including any increase to the billing rate, in the fee agreement to which Client consented. Rule 1.5(b). If the resulting rate is not clearly excessive, Lawyer may increase the billing rate as set forth in the fee agreement. Rule 1.5(a). Although not required under these circum stances, Lawyer is encouraged to provide Client with reasonable notice prior to the imposition of any increased billing rate. Inquiry #5: Same facts as Inquiry #4. Client refused to pay the increased hourly billing rate, and instead paid law firm the rate that was origi nally set out in the fee agreement. May Lawyer withdraw from representing Client based on Client’s refusal to pay the increased hourly rate? Opinion #5: Yes. A lawyer may withdraw from repre senting a client for a variety of reasons, including if “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given rea sonable warning that the lawyer will with draw unless the obligation is fulfilled[.]” Rule 1.16(b)(6). Under these circumstances, the provision in the fee agreement describing the potential increase in fees was appropriate under the Rules of Professional Conduct, and therefore Client’s refusal to comply with the terms of the fee agreement constitutes Client’s “fail[ure] to substantially fulfill an obligation to the lawyer regarding the lawyer’s services[.]” Id . Provided Lawyer rea sonably notifies Client about Lawyer’s with drawal if Client refuses to comply with the fee agreement, Lawyer may withdraw from the representation based on Client’s refusal to pay the increased hourly rate. Inquiry #6: Same facts as Inquiry #1, except Client has requested or directed Lawyer to include the language set out in Inquiry #1 in the fee agreement. Does the analysis change if Client—rather than Lawyer—requests or insists upon the inclusion of language permit ting a periodic, unspecified fee increase such as that set out in Inquiry #1? Opinion #6: Yes. The analysis set out in Opinions #1 5 addresses the scenario where Lawyer is

requesting or requiring Client agree to the fee increase language as a condition of represen tation; the analysis also presumes Client is an infrequent or unsophisticated user of legal services. Under these facts, Client has requested or insisted upon the inclusion of broad language permitting Lawyer to increase fees on a periodic basis without advance notice, indicating Client’s understanding, consent, and desire for such an arrangement, presumably for the convenience of Client. As noted in Opinion #3, above, the reasonable ness of an amended fee agreement with a client will depend on the context and circum stances of the representation and the attor ney-client relationship. The inclusion of such fee increase language originating from Client, rather than Lawyer, is a relevant considera tion in determining the provision’s permissi bility. Accordingly, Lawyer may include the provision in a fee agreement permitting a periodic, unspecified fee increase when Client, on Client’s own initiative, requests or instructs Lawyer to include such language. Additionally, the notice required—if any— when implementing the fee increase may fol low the terms of the provision requested by Client in the fee agreement. Any increase in fees under these circumstances must still not be clearly excessive pursuant to Rule 1.5(a). See Opinion #1. Inquiry #7: Corporate Client is a large corporate enti ty that regularly uses legal services, and whose constituents have regularly entered agreements with lawyers on behalf of Corporate Client for legal services. Law Firm has previously been retained by Corporate Client on multiple occasions, and Corporate Client now wants to retain Law Firm for assistance with a particular aspect of its busi ness; Corporate Client and Law Firm intend the relationship to be ongoing and anticipate the representation will last multiple years. Law Firm proposes the fee agreement include a provision permitting Law Firm to increase fees on a periodic basis and in an unspecified amount for the lawyers assigned by Law Firm to work on Corporate Client’s matters; Law Firm does not intend to pro vide advance notice of any increase, but will inform Corporate Client when the increase is implemented. Corporate Client agrees to this fee increase structure. Does the analysis set out above change under these circum stances?

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