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BOSTON �— Issues raised by an attorney discipline case prompted the Supreme Judicial Court of Massachusetts to ask the court’s standing advisory committee on professional conduct rules to consider changing contingency fee agreement rules. In an April 11 order, Associate Justice Margot Botsford asked the committee to consider whether a lawyer should get the client’s written consent when a contingent fee agreement contains terms that “materially departs” from the state’s model agreement. The court also wants guidance on whether such agreements could allow a lawyer discharged by the client before the legal matter is resolved to collect more than the fair value of the attorney’s services and expenses. “Looking to the future, we doubt whether it is appropriate for a contingent fee agreement to contain a provision — as the attorney’s agreement did in this case — giving a lawyer, on discharge by the client before termination of the matter for which representation was sought, a right to recover an amount greater than the fair value of the lawyer’s services and expenses up to the date of discharge,” Botsford wrote. In the underlying case, the Supreme Judicial Court upheld the state’s office of the bar counsel’s private admonition of an unnamed lawyer for giving misinformation both to insurance companies and clients who received insurance company money for personal injury claims. But the court disagreed with the bar counsel’s request for disciplinary action for the contingent fee agreement. Roy A. Bourgeois of Bourgeois, Dresser, White & Beard in Worcester, Mass., who represented the lawyer who was disciplined, said professional organizations and continuing legal education programs recommended his client’s fee agreement language. Bourgeois also noted that the bar counsel continued to pursue the case despite the fact that the court’s special hearing officer, the Board of Bar Overseers, and the court’s single justice who first heard the case “all saw no problem with the fee agreement as the lawyer applied it.” “While I am pleased with the decision not to impose discipline on my client for anything contained in the fee agreement, I remain unhappy about the decision to prosecute this case, and to continue to appeal it in the face of negative support for Bar Counsel’s position,” Bourgeois said. Constance Vecchione, the bar counsel, said her office brought the matter to the full bench of the Supreme Judicial Court because important policy issues were at stake. Direction from the advisory board “will give better guidance to members of the bar,” Vecchione said.

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