Massachusetts Supreme Judicial Court makes written fee arrangements mandatory effective January 1, 2013

Word comes from David Mackey, chair of the Board of Bar Overseers for Massachusetts:

On October 24, 2012, the Supreme Judicial Court issued an order amending Mass. R. Prof. C. 1.5(b) to require in paragraph (b)(1) that, in most circumstances, the scope of the representation and basis or rate of the fee and expenses be communicated to the client in writing. The amendment is a major change from the prior version of Rule 1.5(b), which required only that fee arrangements “preferably” be communicated in writing.  No change has been made to Rule 1.5(c), which has always required that contingent fee agreements be in writing.  The effective date of the amendment is January 1, 2013.

New comment 2 to the rule elaborates on what is required, stating that “a simple memorandum or 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.”  (The more prudent course, however, is for the lawyer to have a fee agreement signed by the client to prevent any misunderstanding as to whether the client was furnished with the required writing.)   The comment further notes that the lawyer ordinarily should send the written fee statement to the client before any substantial services are rendered.

There are a few exceptions to the mandate of a writing. Section (b)(2) of the revised rule creates exemptions to the requirement of a written statement for a single-session legal consultation and for a situation in which the lawyer reasonably expects the total fee to the client will be under $500. This section additionally specifies that, where an indigent representation fee is imposed by a court, a writing is not required because no fee agreement has been entered into between a lawyer and a client.

Finally, the same SJC order also amends Mass. R. Prof. C. 6.5, concerning non-profit and court-annexed limited legal services programs, by adding a new paragraph (a)(1) indicating that lawyers providing short-term limited legal services under the auspices of such programs are not subject to Rule 1.5(b).

These amendments to Rule 1.5 are more fully discussed in an article on the BBO website.



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