律師收費相關規範內容

ABA 職業行為模範法中與律師收費制度相關之規範規定如下：

(1) 第 1.5 條 律師收費²⁰

16 Id. at 5-6.

17 Id. at 7.

18 黃建輝，〈倫理學的法律實踐〉，月旦法學雜誌第 38 期，頁 49～54。

19 Geoffrey C. Hazard& Jr. and Angelo Dondi, 比較法律倫理學，李禮仲譯，頁 169，初版，台北，

新學林出版社，民國一百年。

20 American Bar Association Model Rules of Professional Conduct, Rule 1.5 Fees

(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

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(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent.

(b) The scope of the representation and the basis or rate of the fee and expenses for which the client will be responsible shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation, except when the lawyer will charge a regularly represented client on the same basis or rate. Any changes in the basis or rate of the fee or expenses shall also be communicated to the client.

(c) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (d) or other law. A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(d) A lawyer shall not enter into an arrangement for, charge, or collect:

(1) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

(2) a contingent fee for representing a defendant in a criminal case.

(e) A division of a fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;

(2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and

(3) the total fee is reasonable.

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委任後合理期間內有書面合意者尤佳。律師以同一計費方式接受 客戶常年委任者不在此限。如事後律師就律師費及其他費用計算 方式有所變更者，應即與客戶溝通。

(c) 除有本條第(d)項所列情形或有其他法律明文禁止者外，律師收費 可採勝訴酬金制度。勝訴酬金協議應以書面訂之，並應載明確定 律師報酬數額之標準，包括：律師處理和解事務、初審案件、上 訴審案件過程中特定或累進之收費比例；訴訟費用以及其他應於 案件所得損害賠償金扣除之費用；前述費用應於以勝訴酬金制計 算律師報酬之前或之後扣除。上開協議內容應明確告知客戶是否 不論其勝訴與否均應支付。此外，律師應同意於採勝訴酬金制度 案件結案後，提供客戶書面報告，說明案件結果，如案件獲得賠 償，應於報告內載明客戶可取得之款項以及其計算方式。

(d) 律師對下列報酬不應向客戶請求或收取：

○¹ 律師受委任處理家事案件中離婚案件、離婚後贍養費之酌定或財 產分配，其律師報酬採勝訴酬金制度者。

○² 律師受刑事案件被告委任處理案件時，其律師報酬採勝訴酬金制 度者。

(e) 不同事務所間之律師不得就律師報酬拆帳，如符合下列規定者不 在此限：

○¹ 基於各律師間就案件分工、或因各律師共同受客戶委任執行職務，

按比例拆帳。

○² 客戶就律師間拆帳事宜（包括各該律師應得報酬為何）以書面表 示同意。

○³ 拆帳前律師報酬總額為合理收費。

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其他相關條款：

(1) 第 1.2 條²¹ 律師受委任範圍及律師與客戶間之權限分配

(a) 律師於符合本條(c)及(d)款前提下，應遵守客戶就律師受委任事項 所為之決定，並應依據第1.4 條規定，與客戶協商進行案件進行之 方法。律師應遵守客戶是否接受和解之決定，於刑事案件中，律 師應遵從客戶是否放棄陪審團審理、以及是否出庭作證等決定。

(b) 律師同意受客戶委任（包括依法受選任為訴訟代理人），不代表律 師贊同客戶就政治、經濟社會或道德之觀點或行為。

(c) 律師取得客戶的告知後同意後，得於合理範圍內限縮受委任之工 作範圍。

(d) 律師如知悉客戶涉及犯罪或詐欺行為，律師不應參與或幫助之。

惟律師得善意與客戶討論該行為之法律效果，提供諮詢或幫助客 戶確定該行為所涉及之法律效力、範圍、含意或適用範圍。

(2) 第 1.3 條²² 合理注意義務

21 American Bar Association Model Rules of Professional Conduct, Rule 1.2:

(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.

(b) A lawyer's representation of a client, including representation by appointment, does not

constitute an endorsement of the client's political, economic, social or moral views or activities.

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

22 American Bar Association Model Rules of Professional Conduct, Rule 1.3 Diligence:

A lawyer shall act with reasonable diligence and promptness in representing a client.

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23 American Bar Association Model Rules of Professional Conduct, Rule 1.4:

(a) A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

(2) reasonably consult with the client about the means by which the client's objectives are to be accomplished;

(3) keep the client reasonably informed about the status of the matter;

(4) promptly comply with reasonable requests for information; and

(5) consult with the client about any relevant limitation on the lawyer's conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

24 American Bar Association Model Rules of Professional Conduct, Rule 1.7 Conflict Of Interest:

Current Clients:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:

(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;

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(a) 除本條(b)項另有規定外，若律師同意接受客戶委任將產生利益衝 突時，律師不應同意受委任。利益衝突情況如下：

○¹ 同意接受客戶委任將對其他客戶產生直接不良影響；或

○² 律師對於受客戶委任處理案件之權限將因為對其他現有客戶、舊 客戶、第三人之責任，或其他律師本身利益之故產生重大不利 限縮。

(b) 儘管存在本條(a)項之利益衝突，如有下列情形者，律師仍得受客 戶委任：

○¹ 律師基於合理理由相信其能夠勝任客戶之委任。

○² 律師受客戶委任無違反法律。

○³ 律師受委任不會造成雙方代理。

○⁴ 雙方客戶以書面同意者。

(5) 第 5.1 條²⁵ 事務所合夥人及具管理職律師之責任

(a) 律師事務所內合夥人或其他具有類似管理職地位之人，應盡合理 努力確保事務所內盡力敦促律師遵守本規範。

(b) 對其他律師有直接管理監督權之律師，應盡合理努力確保其他律 師遵守本規範。

(2) the representation is not prohibited by law;

(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.

25 American Bar Association Model Rules of Professional Conduct, Rule 5.1:

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the

other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

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(c) 於下列情形，律師應對其他律師違反本規範之行為負責：

○¹ 該律師命令或明知而批准違反本規範之行為。

○² 該律師為事務所合夥人、具其他管理職身份之人，或對違反本規 範之律師具直接管理監督權之人，於違反本規範之行為實施後、

結果未發生前，能夠阻止結果發生卻未採取合理補救措施者。

(6) 第 5.2 條²⁶ 下屬律師之責任

(a) 儘管律師執行職務之行為係依據他人之指示，仍應遵守本規範。

(b) 下屬律師依據指導律師基於專業判斷對於具爭議性問題所為之合 理決定所為之行為，並無違反本規範。

(7) 第 7.1 條²⁷ 律師就其執業行為與客戶之溝通

律師不應提供與關於律師本人或其所受委任之案件相關之虛假或使 人誤解的訊息，包括對法律和事實陳述的重大錯誤，以及雖整體陳述 無重大錯誤，但省略必要提供之內容者。

(8) 第 8.4(c)條²⁸ 不法行為

26 American Bar Association Model Rules of Professional Conduct, Rule 5.2 Responsibilities Of A Subordinate Lawyer :

(a) A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person.

(b) A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty.

27 American Bar Association Model Rules of Professional Conduct, Rule 7.1:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

28 American Bar Association Model Rules of Professional Conduct, Rule 8.4:

It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve

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（Model Code of Professional Responsibility），對於律師收費合理性之 規定規定於第 DR2-106(A)條：「律師不應與客戶以違法或明顯過度 之收費標準（clearly excessive）訂立收費契約、請求或收取律師報酬。

29」由該條文可以看出，其用語不如 ABA 職業行為模範法第 1.5(a) 條³⁰精確，解釋上可能造成實際上律師收費不合理，卻因無「明顯」

過度收費，使得律師無違反本條規定。ABA 職業行為模範法第 1.5(a) 條修正了此一問題。

results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

29 ABA Model Code of Professional Responsibility (1983), CANON 2. A Lawyer Should Assist the

29 ABA Model Code of Professional Responsibility (1983), CANON 2. A Lawyer Should Assist the

在文檔中 時間就是金錢—論計時收費之律師倫理 (頁 78-85)