For generations, the billable hour has been the dominant billing tool of the legal profession.
Consequently, courts, attorneys, and even clients have assessed “reasonableness” of an attorney’s fees against the backdrop of the billable hour, but hourly billing is not (and never has been) essential for an attorney’s fee to be reasonable. Rule 1.5(a)(8) expressly allows flat fees, and Utah caselaw confirms they are permissible when reasonable. Flat fees must be judged on their own terms under Rule 73 and Rule 1.5.
As is the case with courts and attorneys in most jurisdictions, Utah courts and attorneys are well accustomed to reviewing time entries, multiplying hours by rates, and comparing that number against customary charges and results obtained. But the growing prevalence of attorney clients opting for flat fee arrangements challenges this familiar model.
Flat fees take various forms (weekly, staged, lump-sum, hybrid). Flat fees are increasingly popular, as they generally give clients more predictability and certainty, better align cost with outcome, and more evenly balance power between attorney and client in comparison to hourly billing.
Courts are increasingly confronted with the question of how to analyze fees that are not tethered to an hourly ledger but are nonetheless lawful, ethical, widely used, and even preferred to the billable hour.
My Flat Fee Issue
In a recent case of mine, I charged a weekly flat fee, with supplemental charges for depositions, mediation, and trial, subject to an unusual client-protective provision: if the client was dissatisfied, he/she could decline to pay for that week at her sole discretion. In one particular case, I did not bill the client every week while the case was pending, voluntarily declining to charge for over 20 weeks of the 140-week period. This arrangement is materially different from an “all-in” lump sum retainer. It is incremental, capped, and flexible, with built-in client protection. My client prevailed in the case and was awarded “reasonable attorney’s fees,” but was not awarded all of her attorney’s fees because the trial court concluded that it had no way to assess the reasonableness of my fees because I did not bill on an hourly rate but rather a weekly rate.
Yet applied to the Rule 1.5 of the Rules of Professional Conduct and Utah Rules of Civil Procedure Rule 73 factors, my flat fee structure fares well. It provided certainty and predictability for the client; it aligned with prevailing hourly rates in the community when reconstructed; it reflected proportionality to the complexity and duration of the case; and it was tied to actual events (weeks of work, plus additional proceedings). It also ensured the client never paid for work she deemed unsatisfactory — an ethical safeguard stronger than any hourly system, which bills regardless of outcome or efficiency.
A Proposed General Judicial Framework for Analyzing Flat Fees
Flat fees can take many forms: weekly or monthly recurring retainers (as here), stage-based payments (e.g., “through mediation,” “through trial”), single lump-sum “all-in” fees, or hybrid flat-plus-hourly models. Each carries unique risks and benefits. The judiciary’s task is not to force every flat fee into an hourly mold but to evaluate them under the governing standards of Rule 73 and Rule 1.5:
- Transparency: Did the attorney disclose the basis of the fee structure in writing, and did the client knowingly consent?
- Proportionality: Is the fee proportionate to the complexity, novelty, and results of the case, when measured against customary charges in the community?
- Safeguards: Does the structure contain protections against abuse (e.g., refundability, “satisfaction” clauses, staged payments)?
- Comparative Reasonableness: Even if not billed by the hour, would the fee be broadly consistent with what an hourly or customary billing method would have produced in similar circumstances?
Risks of Abuse and Countervailing Considerations
Flat fees, like hourly fees, are not immune to abuse. A lump-sum flat fee could be unreasonable if charged in a simple, uncontested matter and set at a rate grossly disproportionate to the work performed. Likewise, “per-week” charges untethered to actual case activity could, in theory, overcompensate counsel. But the same is true of hourly billing, which has long been criticized for rewarding inefficiency, encouraging overbilling, and producing unpredictable client costs. The judiciary’s role is to guard against abuse in both models by insisting on disclosure, contextual proportionality, and reasonableness.
Why Endorsing Flat Fees Is Consistent with Rule 1.5 and Rule 73
Nothing in Utah law requires an attorney’s fee to be justified only by hourly time records. Rule 1.5 explicitly allows flat fees. Rule 73 requires a showing of reasonableness, not a reconstruction of hours. The fact that flat fees are increasingly common in domestic relations practice underscores the need for courts to apply the rules flexibly. A judiciary that demands hourly records for flat fees would, in effect, outlaw the very arrangements that Rule 1.5 authorizes.
Moreover, flat fees often enhance access to justice: clients know in advance what they will pay, can budget accordingly, and avoid the “sticker shock” of mounting hourly bills. In this sense, flat fees may be more transparent and fair than the hourly model. Where, as here, counsel’s declaration ties the flat fee to the case’s duration, scope, complexity, and community norms — and where the client had unilateral discretion not to pay for unsatisfactory weeks — the arrangement is not just reasonable, it is commendably protective of client interests.
Conclusion
The judiciary and the legal profession should analyze flat fees not by forcing them into the straitjacket of the billable hour, but by applying Rule 73 and Rule 1.5’s factors to the unique structure of the particular flat fee structure. Doing so reveals a fee that is transparent, proportional, and protective of the client. More broadly, courts should acknowledge that flat fees are lawful, increasingly prevalent, and often superior in predictability and fairness to hourly billing. Properly evaluated under the rules, a reasonable flat fee merits full enforcement.
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