LPM Tip
Writing requirement: As of Jan. 1, written fee agreements will be required in most cases
On Oct. 24, 2012, the Massachusetts Supreme Judicial Court issued an order respecting amendments to Court Rule 3:07. The order will amend those Rules
of Professional Conduct at Rule 1.5 and at Rule 6.5. This is the second recent amendment
of Rule 1.5; here's the first.
The revised rules have an effective date of Jan. 1, 2013, and
require that fee agreements, with narrow exceptions, be reduced to
writing; or, as the text of the new Rule 1.5 reads: '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 in writing.' This is a significant change from the prior
version of the rule, which required that contingent fee agreements
be in writing, while only evincing a preference that other fee
agreements be committed to writing, also.
There are some further, relevant matters to be aware of:
- The revised Rule 1.5 requires that the fee agreement be
'communicated in writing to the client before or in a reasonable
time after commencing the representation.' Though, the new Comment
2 to the rule adds that: 'Ordinarily, the lawyer should send the
written fee statement to the client before any substantial services
are rendered.'
- The exceptions to the new Rule 1.5 are as follows, for: (1) a
'single-session' legal consultation; (2) 'when the lawyer
reasonably expects the total fee to be charged to the client to be
less than $500';, (3) services provided 'under the auspices of a
program sponsored by a non-profit organization or court' (nonprofit
and court-annexed limited legal services programs) -- the related
revision to Rule 6.5, adding a new section (1)(a); and, (4) 'when
the lawyer will charge a regularly represented client at the same
basis or rate' -- though, any changes to the basis or rate must be
communicated to the client (even an existing client) in writing,
such that modification of pricing terms triggers the creation of a
new/revised written fee agreement.
- Comment 2 to the revised Rule 1.5 indicates that 'Furnishing
the client with a simple memorandum or a copy of the lawyer's
customary fee schedule is sufficient if the scope of the
representation and the basis or rate of the fee is set forth.' Best
practice, however, would suggest, instead of a bare memorandum of
terms, that the attorney acquire a fully executed fee agreement,
signed by the attorney/attorneys and client/clients. Each party
should initial and date all pages of the fee agreement that do not
contain signature lines.
- Fees and expenses must be outlined in the written fee
agreement.
- Although there is an exception in place for single session
consultations and for engagements in which the fee will not meet or
exceed $500, even in those constructs, '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,' per the new Comment 2 to Rule 1.5.
For more on the rules changes, you can read the Board of Bar
Overseers' announcement here. Bar Counsel Constance Vecchione has
elaborated on the revised rules at this article, accessible via the BBO/Office of
Bar Counsel's ethics articles repository. Among other things,
Vecchione addresses the history of the rule's reformation, expands
upon the importance of acquiring a fully executed fee agreement and
offers some tips for drafting scope provisions and about how to
effectively relay charges and expenses.
Tip courtesy of Jared Correia, Law Office Management Assistance
Program.
Published December 6, 2012
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