Fee Issues Lead To Reprimand

An attorney has been publicly reprimanded by the Massachusetts Board of Bar Overseers

In 2010, the respondent began representing a client in a civil matter in the Suffolk Superior Court based on a written contingency fee agreement (the “2010 CFA”), under which the respondent would receive one third of the gross amount of any recovery. In 2012, Don Keenan, an out-of-state attorney, began working with the respondent on the case.

In 2013, the respondent and Keenan executed an agreement providing that Keenan would receive a percentage of the respondent’s contingency fee (the “2013 Fee Sharing Agreement”). The respondent did not inform the client of the 2013 Fee Sharing Agreement, or seek the client’s informed written consent for the fee division, before or within a reasonable time after the agreement was executed.

In 2015, the respondent suggested that the client retain Keenan as her lead trial counsel for the case. Keenan executed a new contingency fee agreement (the “2015 CFA”) to supersede the 2010 CFA and the 2013 Fee Sharing Agreement. The 2015 CFA provided for a contingency fee of one third of any gross recovery, which was the same as the 2010 CFA. However, the 2015 CFA also provided for an additional fee of 2% of the gross recovery “if the matter is concluded/settled after an appellate brief is filed … [by Keenan],” and an additional 5% of the gross recovery if the matter was concluded after an appellate decision (collectively the “7% Appellate Fee”). The 2015 CFA also provided that Keenan would share whatever fee he received with the respondent.

Prior to executing the 2015 CFA, the client asked the respondent to explain the new agreement to her. The respondent responded in part: “It’s the same fee agreement as before but with [Keenan’s] name since he is also trying the case with me … It doesn’t change your percentage or cost you more money.” The respondent’s statement was incomplete and/or inaccurate, because he did not mention the 7% Appellate Fee. The client executed the 2015 CFA.

Later in 2015, the respondent and Keenan achieved a substantial jury verdict for the client, but in 2016 the trial court ordered a new trial. In 2017, the client retained counsel other than Keenan to pursue an appeal of the trial court’s decision to grant a new trial. Keenan’s name did not appear on the appellate brief and he did not otherwise appear in the appeal. In 2019, the client prevailed in the appeal and the Appeals Court reversed the grant of a new trial.

After the successful appeal, the defendants paid the judgment to Keenan, and the respondent calculated the attorneys’ fee. The respondent determined that Keenan was due the 7% Appellate Fee, in addition to the one third contingency fee, even though Keenan had not filed an appellate brief pursuant to the terms of the 2015 CFA. The respondent instructed Keenan to distribute the proceeds accordingly.

In 2022, the client through new counsel filed suit in federal court against the respondent and Keenan, and their respective firms, alleging that they were not entitled to the 7% Appellate Fee because Keenan did not file the appellate brief and because respondent had assured her that the 2015 CFA would not change the percentage she would receive. In 2023, the District of Massachusetts awarded partial summary judgment for the client, finding that there was no dispute of genuine fact that the respondent and Keenan had violated Mass. Gen. L. c. 93A by collecting the 7% Appellate Fee when they had not adequately explained the fee to the client. The court denied summary judgment on the client’s allegation that the 93A violation was willful or knowing. In 2024, after the summary judgment ruling, the respondent and Keenan entered into a settlement agreement with the client.

By failing to communicate with the client about the 7% Appellate Fee in a reasonable and clear manner prior to her executing the 2015 CFA, the respondent violated rules 1.4(a)(1) and 1.4(a)(4). By seeking to charge the 7% Appellate Fee to the client, the respondent charged a clearly excessive fee, in violation of rule 1.5(a). By failing to communicate promptly and reasonably with the client regarding the 2013 Fee Sharing Agreement, the respondent violated rules 1.4(a)(1) and 1.4(a)(2).

(Mike Frisch)