The Massachusetts Judicial Branch

Supreme Judicial Court

Notice Inviting Comment

Proposed Revisions to Massachusetts Rule of Professional Conduct 1.5

NOTICE


The Supreme Judicial Court's
Standing Advisory Committee on the Rules of Professional Conduct
Invites Comments on Further Proposed Revisions to
Massachusetts Rule of Professional Conduct 1.5


     The Supreme Judicial Court's Standing Advisory Committee on the Rules of Professional Conduct ("Committee") invites comments from the public on its proposal to revise Massachusetts Rule of Professional Conduct 1.5. In its decision in Malonis v. Harrington, 442 Mass. 692 (2004), the Supreme Judicial Court held that where a client retained an attorney on a contingent fee basis but discharged the lawyer before the case was completed, and then retained a second attorney on a contingent fee basis, and the second attorney settled the case, the discharged attorney was entitled to a recovery from the second attorney's fee on a quantum meruit theory. The court invited the committee to consider whether to recommend amendments to Rule 1.5 to identify more clearly the responsibility of the client for the fees of a discharged contingency fee lawyer, and whether any quantum meruit fees to which such a lawyer is entitled should reduce the fees payable to successor counsel. In 2005, the committee sought comments on the issue and received some helpful comments. In addition to considering the issues raised by Malonis, the committee also considered whether any amendments to Rule 1.5 or its comments were desirable to reflect the court's decision in Saggese v. Kelley, 445 Mass. 434 (2005).

     The committee then further revised its proposal as a result of the court's decisions in Liss v. Studeny, 450 Mass. 473 (2008), and In the Matter of the Discipline of an Attorney, 451 Mass. 131 (2008), in which the court referred certain issues to the committee. In Liss, the court held that, in the absence of an agreement to the contrary, the attorney could not recover in quantum meruit where the contingency had not occurred. The committee also considered the discussion in Discipline of an Attorney, relating to agreements that materially depart from the standard contingent fee arrangements. In Discipline of an Attorney, the court directed this committee to address how to implement the requirement that the lawyer explain such additional provisions and obtain the client's specific written consent to them.

     The committee also considered changes in the Model Rule1.5 and its comments adopted by the American Bar Association. The committee did not consider, however, adopting Model Rule 1.5(e)(1) requiring referral fees to be proportional to the services performed by each lawyer or requiring each lawyer to assume responsibility for the representation.

     As described in more detail below, the committee has recommended changes to several sections of the rule and to the model form of contingent fee agreement to reflect these changes. The comments were also revised to reflect the changes in the rule and to provide further guidance particularly on the use of the model contingent fee agreement. One member of the committee, Elizabeth Mulvey, disagreed with some of the proposed changes.

     The Supreme Judicial Court website has the following documents available for review: This notice, including the proposed revised rule and comments; the separate statement of Elizabeth Mulvey, and redlined copies of the Committee's proposed revisions to Rule 1.5 indicating how the Committee's proposal differs from American Bar Association Model Rule 1.5 and from current Massachusetts Rule 1.5.

     Comments should be directed to The Standing Advisory Committee on the Rules of Professional Conduct, c/o Administrative Attorney Barbara Berenson, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108 on or before 5:00 p.m. on Friday, November 14, 2008. Comments may also be sent to: barbara.berenson@sjc.state.ma.us.