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The Rules of Professional Responsibility require that a contingent fee agreement “be in writing and signed in duplicate by both the lawyer and the client…” S.J.C. Rule 3:07, Rule 1.5(c). The rule sets out the cases in which a contingent fee is permissible—there must be a res, Latin for a thing or object, and in this context, a sum of money—which includes the category of personal injury. Numerous other rules have been added to 1.5(c). I welcome those requirements and I think a fair observation is that the contingent fee contract spells out the rights of the consumer clearly.
Years ago, it was not uncommon to have a client who had discharged another office where no contingent fee agreement had been signed. In more recent years, I have found that the discharged lawyer has indeed had a signed contingent fee agreement. But what is crucial for the consumer is that he/she should never pay twice for the cost of pursuing a case. This is why when I take on a case which has been with another office, I always put in the fee agreement that my compensation will be reduced by the amount which is owed to the prior attorney. I think this is the fairest way to resolve what can be a difficult dilemma: it insures that the client will be able to use an attorney with whom he/she is comfortable and yet will not pay an excessive price for doing so. I have seen contingent fee contracts that call for another approach but I believe these other approaches impose an unfair burden to the client.
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