Ethics Opinion

Opinion No. 99-1

January 1999

Summary: A lawyer who wishes to sue a former client for legal services in a non-litigation matter may do so pro se without violating Rule 3.7. A lawyer who brings such a lawsuit should consider the desirability of seeking mediation but is not required to do so.

Facts: A lawyer, wishing to bring suit against a former client for unpaid bills relating to representation in a matter that did not involve litigation, inquires whether he may bring such a suit pro se.
Discussion: Rule 3.7 provides: (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where . . . (2) the testimony relates to the nature and value of legal services rendered in the case . . . . Rule 3.7 might be read as literally permitting lawyers to be an advocate and a witness in a suit for legal fees only when a "case" is involved, and this inquiry does not involve legal services in a "case." But Rule 3.7(a)(2) only appears to apply to situations in which the lawyer is seeking a fee in the very proceeding in which the services were rendered. See Rule 3.7, Comment 3. Moreover, it is well established under Supreme Judicial Court cases interpreting the predecessor Rule DR 5-102(A) and 5-101(B), that Rule 3.7 does not bar pro se representation by the inquiring lawyer. Borman v. Borman, 378 Mass. 775, 789 (1979) and Gorovitz v. Planning Board of Nantucket, 394 Mass. 246, 249 (1985) both held that G.L. c. 221, §48, generally authorizing self-representation, includes attorneys' right to sue pro se, notwithstanding the mandate of former DR5-102 (substantially similar to new Rule 3.7). In other words, the right to pro se representation effectively trumps a literal reading of Rule 3.7 that would forbid pro se representation in a suit for legal fees in a non-litigation setting. As the Court said in Borman: "To apply DR 5-102 when the testifying advocate is a litigant in the action miscomprehends the thrust of the rule. Disciplinary Rule 5-102 regulates lawyers who would serve as counsel and witness for a party litigant. It does not address that situation in which the lawyer is the party litigant. Any perception by the public or determination by a jury that a lawyer litigant has twisted the truth surely would be due to his role as a litigant and not, we would hope, to his occupation as a lawyer. . . . As a party litigant, moreover, a lawyer could represent himself if he so chose. G. L. c.221, §48. . . ." (citations omitted). Borman, supra at 788-789.
The lawyer's second question is whether he must first seek mediation of a lawsuit concerning his legal fees. Comment 5 to Rule 1.5 provides:

In the event of a fee dispute, the lawyer should conscientiously consider submitting to mediation or an established fee arbitration service. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, a class or a person entitled to a reasonable fee as part of the measure of damages. The lawyer entitled to such a fee and a lawyer representing another party concerned with the fee should comply with the prescribed procedure.

The text of Rule 1.5 does not discusses fee disputes or mediation thereof and Comment 5 to that Rule does not require the lawyer to seek mediation. It merely states that he "should conscientiously consider submitting to mediation."
This advice is that of a committee without official governmental status.
Permission to publish granted by the Board of Delegates on April 16, 1997. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official government status.