ABA Formal Opinion 93-379, issued in December 1993, is the American Bar Association’s ethics guidance on how lawyers may bill their clients under the Model Rules of Professional Conduct. Its rule is simple: a lawyer who has agreed to bill by the hour cannot charge for time that was not actually spent, cannot bill the same time to more than one client, cannot re-bill work already paid for by an earlier client, and cannot pass off overhead or marked-up expenses as legitimate charges. Everything else in the opinion follows from those points.
Charging Only for Hours Actually Worked
The opinion’s central statement on hourly billing is that a lawyer who has agreed to bill based on time spent “is never justified in charging a client for hours not actually expended.”1State Bar of Nevada. ABA Formal Opinion 93-379 If a phone call takes seven minutes, the invoice cannot say thirty. The bill has to reflect the work that was actually done.
There is one narrow allowance. The opinion permits rounding up to a minimum billing increment, such as a quarter-hour or a tenth of an hour (six minutes).2American Bar Association. Formal Ethics Opinion 93-379 A two-minute call rounded to six minutes stays within bounds. That same call rounded to fifteen minutes starts to look like padding. Rounded to a full hour, it is plainly improper. The test is whether the increment bears a reasonable relationship to the time actually spent. Firms that use large minimum increments across dozens of small tasks can quietly generate hours of phantom time on a single invoice, which is exactly the kind of practice the opinion targets.
None of this restricts what a lawyer can charge per hour. Model Rule 1.5 governs whether a fee is reasonable and weighs factors like the difficulty of the work, local rates, the lawyer’s experience, and the results achieved.3American Bar Association. Model Rules of Professional Conduct Rule 1.5 – Fees A high hourly rate can be perfectly reasonable. What the opinion prohibits is inflating the number of hours on the bill.
Billing the Same Time to More Than One Client
Double billing gets a direct answer. When a lawyer performs work that benefits more than one client during the same block of time, the lawyer has not earned separate full-time charges from each. As the opinion puts it, “a lawyer who spends four hours of time on behalf of three clients has not earned twelve billable hours.”1State Bar of Nevada. ABA Formal Opinion 93-379
Travel is the standard example. A lawyer flies six hours to attend a deposition for one client and works on a second client’s matter during the flight. The lawyer has spent six hours in the air, not eleven. Those hours have to be divided rather than billed in full to each client. The same logic applies to court appearances stacked on the same morning. Three hours at the courthouse covering three separate matters is roughly one hour per client, not three.
The fair approach is to split the shared time proportionally, or, if the engagement agreement allows it, charge the full time to one client and nothing to the other. What is forbidden is collecting the same hour twice.
Reusing Prior Work
Lawyers often face legal questions they have already researched. The opinion says the efficiency belongs to the current client, not the firm: “A lawyer who is able to reuse old work product has not re-earned the hours previously billed and compensated when the work product was first generated.”1State Bar of Nevada. ABA Formal Opinion 93-379
In practice, if a lawyer spent ten hours drafting a brief for a prior client and then adapts that brief for you in ninety minutes, your bill should reflect ninety minutes. Billing the original ten hours would charge you for time never spent on your matter. The lawyer was already paid for that research the first time.
A lawyer who wants additional compensation for the value of reused work can ask for it, but the request has to be transparent. The opinion allows a lawyer to propose a bonus or value-based adjustment with “full disclosure” to the client.1State Bar of Nevada. ABA Formal Opinion 93-379 Inflating the hours on the invoice to disguise a value-based charge as time worked is never permitted.
Overhead Versus Billable Expenses
The opinion draws a firm line between the firm’s internal operating costs and expenses tied to a specific client. Office rent, malpractice insurance, library maintenance, utilities, and general staffing are overhead. A client paying an hourly rate reasonably expects those costs to be baked into that rate already.2American Bar Association. Formal Ethics Opinion 93-379 Listing them separately on a bill, without a prior agreement, is improper.
Expenses tied directly to the client’s matter are treated differently. Filing fees, court reporter charges, long-distance calls made for the case, special deliveries, and photocopying are recoverable, but only at the lawyer’s actual cost. The opinion allows a reasonable allocation of the direct overhead associated with providing an in-house service, such as the salary of the person running the copy machine, as long as the charge still reasonably reflects actual cost.2American Bar Association. Formal Ethics Opinion 93-379 Running the copy room as a profit center violates the opinion.
Surcharges and Volume Discounts
Hidden markups on outside costs are prohibited. When a lawyer tells a client to expect charges for “disbursements,” the client is entitled to assume those charges match what the lawyer actually paid. Adding an undisclosed surcharge creates what the opinion calls an undisclosed profit center.4American Bar Association. ABA Formal Opinion 93-379 – Billing for Professional Fees, Disbursements and Other Expenses
Volume discounts follow the same rule. If a firm negotiates a reduced rate from a courier or a court reporting company, the client should get the benefit. Billing the client at full price and pocketing the difference is the same undisclosed profit the opinion forbids.
Paralegal Time and Clerical Work
Paralegal time can legitimately appear on a client’s bill when the work is genuinely legal in nature. The ABA’s Model Guidelines for paralegal services allow lawyers to bill paralegal work at market rates rather than just the cost of employing the paralegal.5American Bar Association. ABA Model Guidelines for the Utilization of Paralegal Services A paralegal’s time might be billed at $100 or $150 an hour even when the paralegal’s salary works out to less. The overall fee, paralegal charges included, still has to be reasonable under Rule 1.5.
The line that matters is between legal tasks and clerical tasks. Legal research, discovery organization, and drafting under attorney supervision are billable. Filing papers, scheduling, and routine copying are secretarial work, and secretarial costs are already part of overhead covered by the attorney’s rate. A line item that shows a paralegal doing what amounts to administrative work likely fails the ethical test.
Why Disclosure Changes the Analysis
Disclosure runs through the entire opinion. Many practices that would otherwise be improper become permissible when the lawyer explains them clearly in advance. The opinion describes a “two-fold duty”: explaining the billing arrangement at the start of the engagement, and providing invoices clear enough for the client to understand what is being charged and why.1State Bar of Nevada. ABA Formal Opinion 93-379
Model Rule 1.5(b) reinforces this by requiring the basis or rate of the fee, along with the expenses the client will be responsible for, to be communicated “preferably in writing” before or shortly after representation begins.3American Bar Association. Model Rules of Professional Conduct Rule 1.5 – Fees Changes to the fee structure have to be communicated too. Model Rule 1.4 adds a broader duty: the lawyer must explain matters to the extent reasonably necessary for the client to make informed decisions.6American Bar Association. Model Rules of Professional Conduct Rule 1.4 – Communications A lawyer who explains the hourly rate, the minimum billing increment, how paralegal time will be billed, and which expenses will be passed through, and then gets the client’s agreement, stands on much firmer ground than one who springs charges in the first invoice.
What to Do About a Bill You Think Violates the Opinion
If you believe your lawyer has padded hours, double-billed, or charged you for overhead disguised as expenses, the most accessible route is fee arbitration through your state or local bar association. Under the ABA’s Model Rules for Fee Arbitration, arbitration is voluntary for clients but mandatory for lawyers once a client initiates it.7American Bar Association. Model Rules for Fee Arbitration Rule 1 Clients cannot be forced into a process they did not choose, and lawyers cannot dodge one either.
Timing matters. A fee dispute generally must be filed within four years of the end of the attorney-client relationship or within four years of the final bill, whichever comes later.7American Bar Association. Model Rules for Fee Arbitration Rule 1 If the lawyer sues for unpaid fees, they must notify you of your right to arbitrate, and you generally have thirty days from that notice to file a petition. The arbitrator’s decision becomes binding unless one side requests a trial within thirty days after it is served.
You can also file a disciplinary complaint with your state bar if you believe the billing violated the Rules of Professional Conduct. In any fee dispute, the burden falls on the lawyer to document the time spent and justify the reasonableness of the charges. A lawyer who cannot produce detailed, contemporaneous time records is in a weak position.
Consequences for Lawyers Who Violate the Opinion
Lawyers who violate billing ethics face sanctions under the ABA’s Model Rules for Lawyer Disciplinary Enforcement, including disbarment, suspension for up to three years, probation for up to two years, formal reprimand, and private admonition for minor misconduct. Courts and disciplinary boards can also order restitution and disgorgement of part or all of the fee.8American Bar Association. Model Rules for Lawyer Disciplinary Enforcement Rule 10p>
Sanctions scale with the conduct. A lawyer who habitually inflates hours across many clients over years faces far worse consequences than one who made isolated rounding errors. Court-issued reprimands appear in official reports, so billing misconduct becomes part of the public record. Restitution in reported disciplinary cases has ranged from tens of thousands of dollars into six figures, depending on how long the overbilling persisted and how many clients were affected. Even without formal discipline, a client who uncovers billing violations can bring a civil suit for breach of contract or breach of fiduciary duty, and a court can award the full amount of the overcharge plus interest.