Ethical Fee Setting

Flat Fees, Hourly Rates, and Contingency Fees

The fee conversation is the one you rush through. You are good at the law and you do not love talking about money, so you mumble the retainer, gloss the scope, and get to the work. That five minutes you skipped is where most bar complaints are born.

Almost no fee dispute is really about greed. It is about a client who did not understand what they were paying for, and an expectation you let stand because correcting it felt awkward.

This hour is the doctrine, applied. Rule 1.5 and the thirteen factors that determine whether a fee is unconscionable, judged at the time the agreement was made rather than after the case resolves. The prohibited contingent fees. The difference between a true retainer, a flat fee and an advance, which is one sentence in a fee agreement and a world of difference in a disciplinary file. Business and Professions Code sections 6147 and 6148, which decide what your written agreement must contain and what happens when it does not comply: voidable at the client’s option, with your negotiated fee replaced by a reasonable one somebody else determines. The two written disclosures Rule 1.15(b) requires before a flat fee can go anywhere near your operating account. Fee divisions with lawyers outside your firm. And the four things to establish in the first conversation.

You will leave with a fee agreement audit checklist you can run against every template you use, and four applied fact patterns with the analysis worked through.

Learning objectives

1. Apply the Rule 1.5(b) unconscionability factors to a proposed fee at the time the agreement is made.
2. Distinguish a true retainer from an advance and from a flat fee, and identify when a fee may be described as earned on receipt.
3. Identify the written fee agreement requirements of Business and Professions Code sections 6147 and 6148 and the consequence of non-compliance.
4. Apply Rule 1.15(a) and (b) to a flat fee paid in advance, including the required written disclosures and the signed writing threshold.
5. Satisfy the requirements of Rule 1.5.1 for a division of fees with a lawyer outside the firm.
6. Communicate the basis of a fee and the scope of the representation consistent with Rule 1.4 and section 6068(m).

Timed Agenda

1 hour. Approval pending with the State Bar of California.

Speaker Biography

Mark C. Daly, JD 

I was admitted to the State Bar of California in November 1999 and have practiced immigration law for 26 years. I twice started, built, managed and sold law practices, in Nashville and Denver. In both firms I personally hired, trained, supervised and evaluated attorneys and staff, and I was responsible for the systems that kept our files, deadlines and client communications on track. I learned leadership the hard way, through trial and error. Those years taught me that the fee conversation I rushed at the start was the one that came back later, every time.

I am a certified professional coach through the Raynor Institute, and I am registered with the Colorado Department of Regulatory Agencies as an Unlicensed Psychotherapist. I have completed training in Voice Dialogue, Shadow Work® facilitation, the Gottman Seven Principles, and Emotionally Focused Therapy. As Director of Training for Transformative Training in Denver, I oversaw the company’s leadership development, manager coaching and presentation skills programs for businesses and government agencies.

In 2004, the State Bar of California approved my immigration law and practice management trainings for MCLE credit, and I have been a registered California CLE provider ever since. I also helped design and manage “The Secret Keys for Maximizing Your Fees,” a CLE program my business partner presented to the state bars of Arizona, Maine, Nevada and New Jersey. I have spoken at American Immigration Lawyers Association and Federal Bar Association meetings. Today I provide coaching services to attorneys through the Colorado Lawyer Assistance Program (COLAP) and the Colorado Attorney Mentoring Program (CAMP). I have also mentored dozens of attorneys in law office start-up and practice management.

In 2025, my wife and I took a one-year sabbatical around the world. I came home with a clearer sense of purpose and stepped back from daily practice to launch Actualis Attorney Wellness. My aim is to help attorneys feel good, enjoy life and do the right thing, including as leaders of their own practices and teams.

Qualifications for This Activity

• California-approved CLE since 2004. Immigration law and practice management trainings approved by the State Bar of California in 2004. Helped design and manage “The Secret Keys for Maximizing Your Fees,” presented to the state bars of Arizona, Maine, Nevada and New Jersey. Speaker at AILA and Federal Bar Association meetings.
• California attorney. Currently active and admitted to the State Bar of California in November 1999 (Bar No. 202928). MCLE Provider #21025.
• Colorado lawyer well-being programs. Provides coaching services to attorneys using the Colorado Lawyer Assistance Program (COLAP) and the Colorado Attorney Mentoring Program (CAMP).
• Firsthand supervisory experience. Founded, managed and sold two law practices. Directly responsible, as a managing lawyer, for the firm measures, supervision and client-communication practices that California Rules of Professional Conduct 5.1 and 5.3 require.
• Well-being training. Registered Unlicensed Psychotherapist, Colorado DORA (No. NLC.0108322), bound by statutory confidentiality duties. Brings a trauma-informed approach to recognizing stress, burnout and impairment.
• Director of Training, Lead Facilitator and Coach. Transformative Training (Denver). Designed long-term leadership development programs for government agencies, trained managers to coach their direct reports to improve performance, and taught presentation skills.
• Certified Professional Coach. Raynor Institute. Has coached managing and associate attorneys and staff on conflict management, workload, supervision and burnout.