Hello everyone and welcome to this Ethics Alert blog which will discuss the recent Order issued by the Massachusetts Supreme Judicial Court which will amend the Massachusetts Bar Rules to require most fee arrangements to be in writing effective January 1, 2013. The Order is online at: https://www.mass.gov/obcbbo/SJCRPC10-24-12.pdf.
The Supreme Judicial Court Order amends Massachusetts Bar Rule 1.5(b) and will require that the scope of the representation and basis or rate of the fee and expenses be communicated to the client in writing in most circumstances. This amendment is a major change from the current version of the Bar Rule, which states that only contingent fee agreements must be in writing and other types of fee arrangements should “preferably” be communicated in writing. The section as amended provides:
(b)(1) Except as provided in paragraph (b )(2), 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 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 in writing to the client.
A new comment to the Massachusetts Bar Rule explains what is required and states 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 comment also notes that the lawyer ordinarily should send the written fee statement to the client before any substantial services are rendered. 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 states 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.
Whether the writing is a fee agreement executed by both parties or is a letter or memorandum from the attorney to the client, it must set forth the scope of the representation and the basis or rate of both the fee and expenses. In addition to describing the services to be provided, the agreement should also specify, the limitations on the services, if any, such as the exclusion of an appeal from the representation or if other types of potential relief will not be pursued. The writing must also state whether the fee is a flat/set fee or a retainer against hourly charges and, if it is an hourly retainer, it must disclose the hourly rate. The writing must also disclose how expenses will be billed.
Bottom line: As of 1/1/13, Massachusetts lawyers will be required to put most fee agreements/arrangements in writing. The rationale underlying this requirement that fee and expense arrangements be in writing is to avoid disputes between the lawyer and client; however, the lack of a writing can also form the basis of a charge that the lawyer violated the Bar Rules. Which state will be next?
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670