Yes, according to a recent ethics advisory opinion from the New York State Bar Association. See N.Y. State Bar Assoc’n Ethics Op. 1090 (2016).
The issue considered by the New York State Bar was this: May a law firm “bill clients for work performed for its clients by student-interns, despite the fact that the law firm does not pay the interns.” Id. New York Rule 1.5(b) (which is identical to the corresponding Louisiana rule) requires a lawyer to communicate with a client about the “basis or rate of the fee” and the “expenses for which the client will be responsible.” Moreover, Rule 1.5(a) requires every fee and expense to be “reasonable” and not excessive. The opinion takes no issue with charging an intern’s time as a “fee”:
We find nothing in the Rules that would prohibit a sponsoring law firm from billing for the services of a law student-intern on a fee basis, even if the sponsoring firm is compensating neither the intern nor the sending law school, provided that the client has been advised of the firm’s intent to charge for the intern’s services and the basis of the charge (e.g., per task or per hour or some fraction thereof) and provided, further, that the fee is neither excessive nor illegal.
Id. Curiously, the opinion suggests that the intern’s work could be charged as an “expense” if the client has agreed to it in advance.
In my view, the Louisiana Rules likewise would not prohibit a lawyer from billing the time of an unpaid intern to a client. However, a lawyer who does so should mind these dos and don’ts:
- Don’t bill the intern’s time as an “expense”—despite what the New York advisory opinion suggests. After all, a lawyer incurs no expense for the services of an unpaid intern.
- Do bill the time as a “fee” for “law clerk” or “intern” or “paralegal” services. Do not suggest that the time worked by the intern was time worked by a lawyer.
- Do bill the time at a reasonable rate, which in Louisiana would be between $25-$75 per hour depending on the city and the type of matter.
- Don’t engage in dishonest or deceptive conduct by misrepresenting the status or credentials of the intern, or by breaching an agreement with a third-party (such as a law school) that the intern’s services will not be billed.
- Do understand that the U.S. Fair Labor Standards Act may require that the unpaid intern actually be paid at least minimum wage. See U.S. Dep’t of Labor , Wage and Hour Division, Fact Sheet #71 (Internship Programs Under the Fair Labor Standards Act). However, information about the FLSA is well beyond the scope of this blog.