Which state's contingent-fee limits apply when a Massachusetts lawyer sues in a tribal court in another state for a Massachusetts client?

Plain-English summary

A Massachusetts lawyer represented a Massachusetts client injured on tribal land in State X in a suit in that state's tribal court against a tribal-owned business. The client agreed to a 40% contingent fee, but the associated State X lawyer reported that State X capped contingent fees at one-third in the matter. The lawyer asked whether she could structure a one-third agreement plus a separate agreement that, combined with her referral fee, would reach 40%. The opinion treats the question as one of choice of law under Rule 8.5(b).

The opinion quotes Rule 8.5(b): for conduct connected with a matter pending before a governmental tribunal, the rules of the jurisdiction in which the tribunal sits apply, unless the tribunal's rules provide otherwise. Because the suit is pending before the tribal court in State X, the committee concludes the contingent-fee rules of State X or that tribal court, not the Massachusetts rules, govern the fee agreement.

The opinion therefore directs the analysis to the forum's law rather than answering the structuring question under Massachusetts rules. The committee notes the limits on its role in advising about another jurisdiction's substantive or professional-responsibility law, framing the choice-of-law conclusion as the answer it can give.

In practice

Under this opinion, the contingent-fee limits applicable to a suit pending before another state's tribunal are those of the forum jurisdiction, by operation of Rule 8.5(b)'s tribunal-forum rule. The opinion concludes that the Massachusetts rules do not govern the fee agreement for the State X tribal-court matter.

The opinion does not resolve the proposed fee structure under Massachusetts law, because it concludes the forum's rules, including any contingent-fee cap, control.

Common questions

Q: Can the Massachusetts lawyer charge the Massachusetts contingent-fee terms for an out-of-state tribal suit?

A: No. The opinion concludes that under Rule 8.5(b), the rules of the forum (State X or its tribal court) govern the contingent fee because the matter is pending before that tribunal.

Q: Why does Rule 8.5(b) point to the forum's rules?

A: Per the opinion, Rule 8.5(b) provides that for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction where the tribunal sits apply unless the tribunal's rules say otherwise.

Background and rules framework

The opinion interprets the recently adopted Massachusetts version of Rule 8.5(b) (choice of law), specifically its rule for conduct before a tribunal, together with Rule 1.5 (fees and contingent fees) as the substantive subject. Rule 8.5 corresponds to ABA Model Rule 8.5.

Citations and references

Rules of Professional Conduct:

• MR 8.5 / Mass. R. Prof. C. 8.5(b) (choice of law; tribunal-forum rule)
• MR 1.5 / Mass. R. Prof. C. 1.5 (fees; contingent fees)

See also

• MA Bar Ethics Op. 14-1: choice of law under Rule 8.5(b)
• ABA Ethics Op. 504: choice of law under Rule 8.5

Source

• Landing page: https://www.massbar.org/publications/ethics-opinions/ethics-opinion-article/ethics-opinions-2012-opinion-12-02/opinion-12-02