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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
Courthouse News Service Courthouse News Service

A Reasonable Distinction

OK, I admit it. I'm probably too hard on people who are just trying to make things better for all of us.

But ponder this: when I ridicule an honest, hard-working study group, am I being unreasonable or unconscionable?

Allow me to offer an example. When I shake my head (picture my head shaking) after reading that the California State Bar's Rules Revision Committee has just spent nine years working on revising rules of professional conduct and isn't done yet, is it fair for me to crack a smile?

Am I being unreasonable or unconscionable - pick one - when I guffaw after reading in the California Bar Journal that the commission has decided to keep California's ban on "unconscionable" fees although it had been thinking about adopting the American Bar Association standard of "unreasonable" fees.

No wonder it took nine years.

It's such a hard choice.

Clearly, this is a distinction worth pondering. How do you know when you're being unconscionable but not unreasonable or unreasonable but not unconscionable?

Definitions aren't much help. Apparently, an act is unconscionable if it shocks the conscience. I have no idea whose conscience or whether it's possible for your conscience to be shocked by something you really want to do.

Put it in the context of The Office: do you shock the conscience of Angela or Creed? If you have no idea what I'm talking about, you spend your time much more wisely than I do.

And what's unreasonable?

Rule 1.5 of the ABA Model Rules of Professional Conduct sets out eight factors to determine reasonableness. Look it up - I dare you to find a guiding number in any of those factors (besides the factor list numbers).

Fortunately, I'm here to provide some guidance.

A fee is unreasonable if it means you make less than the guy down the hall.

A fee is unconscionable if it makes the client go to the guy down the hall.

A fee is unreasonable if it means your client gets nothing out of the litigation.

A fee is unconscionable if you get nothing out of the litigation.

A fee is unreasonable if it forces the client to do something he or she doesn't want to do.

A fee is unconscionable if that client is ugly.

A fee is unreasonable if not properly documented.

A fee is unconscionable if you can't make up something to justify it.

A fee is unreasonable if it includes charges for afternoon martinis.

A fee is unconscionable if you're too drunk to do the billing.

A fee is unreasonable if based on numbers painted on balls drawn randomly out of a bowl by the client.

A fee in unconscionable if all the balls have the same number on them.

A fee is unreasonable if you feel bad about it.

A fee is unconscionable if you feel good about it.

I hope this helps you out.

FURTHER STUDY. By the way, my favorite part of the California Bar Journal report on the reaction of the Bar's Board of Governors to the rules commission's nine-year labors came in the very last paragraph: "Proposed rules dealing with sex with a client and conflicts of interest were referred back to the commission for further work."

You don't want to give sex insufficient study.

That's neither unreasonable nor unconscionable.

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