Change in Massachusetts Rule on Fee Agreements Illustrates Risk of Cross-Border Practice

With the increasing regionalization and consolidation of business clients everywhere, lawyers trying to best service those clients are tempted to practice in multiple jurisdictions at one time.  This complicates the process of maintaining one's professionalism standards, as we try to comply with the demands of more than one state.

Despite the many similarities among the New England states, for example, sometimes the differences can also be significant.  The different approach to fee agreements -- and whether they need to be in writing -- is an example. 

Maine, New Hampshire, and Massachusetts all require that contingent fee agreements be reduced to writing.  (Even in this seeming consensus, there are distinctions:  Massachusetts goes so far, for example, as to specify the number of copies that should exist, and how long the lawyer must maintain his copy.)  As of January 1, 2013, however, Massachusetts has extended the "writing" requirement to nearly all fee agreements.

Maine and New Hampshire continue to recommend that fee agreements be in writing, without requiring it.

The disparity raises questions of conflicts of law.  If one is admitted in both New Hampshire and Massachusetts, for example, and pursuing litigation in Boston for a New Hampshire-based client, which rule applies?  Is there a different answer for a Massachusetts-based client pursuing litigation in Maine? 

As our practices continue to get more complicated, so too, do the rules applying to us.  To learn more, contact a member of Preti Flaherty's Professional Liability Group.

Authored by:  William C. Saturley