## Facts

- Laurence S. Fordham, an experienced civil trial lawyer with no prior criminal or OUI trial experience, agreed to defend Timothy Clark on OUI and related charges in District Court at $200 per hour after disclosing his inexperience in that practice area.
- Fordham and his associates billed about 227 hours, generating a fee of approximately $50,022.25 for a single-defendant bench trial.
- Evidence before the disciplinary tribunal indicated that comparable OUI matters typically required far fewer hours and were billed at materially lower customary fees in the community.
- Clark was acquitted, and the Clark family challenged the fee as excessive.
- Bar Counsel filed a petition for discipline alleging Fordham charged a “clearly excessive fee” in violation of S.J.C. Rule 3:07, DR 2-106.
- A hearing committee, expressing serious reservations, recommended dismissal; the Board of Bar Overseers narrowly accepted that recommendation and dismissed the petition.
- Bar Counsel sought review in the Supreme Judicial Court; Fordham challenged appellate jurisdiction, and the matter was reported to the full court.

## Issues

1. Whether Bar Counsel may appeal, and the Supreme Judicial Court has jurisdiction to review, a Board of Bar Overseers decision dismissing a petition for discipline.
2. Whether Fordham charged a “clearly excessive fee” under S.J.C. Rule 3:07, DR 2-106 based on hours expended, customary fees, and the nature of the OUI matter.
3. Whether a client’s agreement to an hourly arrangement or later acquiescence can defeat a finding that a fee is clearly excessive.
4. Whether imposing discipline for a clearly excessive fee, despite limited prior reported discipline under DR 2-106, violates due process.
5. What sanction is appropriate if DR 2-106 was violated.

## Decision

- The court held it had jurisdiction and that Bar Counsel may appeal a dismissal because the court retains ultimate authority over attorney discipline.
- The court reversed the board’s dismissal, concluding the fee was clearly excessive under DR 2-106.
- The court rejected reliance on client “open eyes” consent or acquiescence where the client did not fully understand the implications of the arrangement and where the rule focuses on the fee charged.
- The court held due process was not violated; the rule’s text and long-standing adoption provided adequate notice that clearly excessive fees may warrant discipline.
- The court ordered public censure as the sanction.

## Legal Principles

- In attorney discipline, the Supreme Judicial Court has final supervisory responsibility, and Bar Counsel may obtain review of a board dismissal.
- A fee is “clearly excessive” when, after review of the facts, a lawyer of ordinary prudence would have a definite and firm conviction that the fee exceeds a reasonable fee (DR 2-106).
- Reasonableness is evaluated objectively using DR 2-106 factors, including time and labor, novelty and difficulty, customary local fees for similar services, results obtained, and the lawyer’s experience and ability.
- A favorable outcome and diligent effort do not justify a fee grossly disproportionate to customary charges for comparable work.
- Client agreement to an hourly arrangement does not immunize a lawyer from discipline for charging a clearly excessive fee, particularly where informed understanding is lacking.
- A lawyer may not shift the full cost of self-education in an unfamiliar practice area to a client when it produces a clearly excessive fee.
- Public censure is an appropriate sanction for charging a clearly excessive fee under DR 2-106 absent more aggravated circumstances.

## Conclusion

The court set aside the board’s dismissal, held that an objectively unreasonable OUI defense fee driven by excessive hours and out of line with customary charges violated DR 2-106, rejected client-consent defenses, and imposed public censure while confirming Bar Counsel’s right to appellate review in disciplinary matters.


In re Fordham, 423 Mass. 481, 668 N.E.2d 816 (Mass. 1996)