Amendment to Rules of Professional Conduct Strengthens Requirement for Written Fee Agreements

An amendment to the Massachusetts Rules of Professional Conduct, effective January 1, 2013, makes mandatory the use of a written fee agreement in situations where it had merely been recommended before.

The pre-2013 version of Rule 1.5, concerning fees, states,

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, preferably 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 to the client. (Emphasis added).

As amended, Rule 1.5(b) (1) removes the “preferably in writing” clause, stating instead, “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.”  As under the pre-2013 version, a written agreement is not required where “the lawyer will charge a regularly represented client on the same basis or rate.”  In addition, the new Rule 1.5(b) (2) adds an exception for “a single-session legal consultation or where the lawyer reasonably expects the total fee to be charged to the client to be less than $500.”