Pennsylvania's Bar Just Reinforced a Fee Agreement Rule Most Small Firms Already Break
Pennsylvania's bar just told its lawyers something that should not be news: if you have not regularly represented a client, the basis or rate of your fee has to be in writing, and you have to hang onto that writing for five years after the representation ends. Formal Opinion 2025-100 from the Pennsylvania Bar Association's Committee on Legal Ethics and Professional Responsibility spells this out under Rule 1.5, and a January 2026 client alert from the law firm Marshall Dennehey walked through what it means in practice.
The opinion itself is not a new rule. Rule 1.5(b) has required a written fee basis for years. What the committee did was reaffirm it in plain terms, at a moment when more firms are tightening up intake, and remind lawyers that the writing requirement is not satisfied by a verbal quote or a handshake, even a friendly one.
What the opinion actually says
Three points carry the opinion. First, under Rule 1.5(b), if the lawyer has not regularly represented the client, the fee basis or rate has to be communicated in writing before the work starts, or within a reasonable time after. A separate source summarizing the opinion notes it does not have to be a formal signed engagement letter. A memo or the firm's standard fee schedule can satisfy the rule, as long as it states the basis or rate. Second, contingent fees are held to a stricter standard under Rule 1.5(c): a written agreement is always required, no exception for repeat clients, and it has to spell out how the fee and expenses are calculated. A written closing statement is required when the matter wraps up. Third, under Rule 1.15(c), whatever writing satisfies Rule 1.5 has to be kept for at least five years after the attorney-client relationship ends.
The one exception is for clients the lawyer has "regularly represented," on the idea that a repeat client already understands the fee basis. The rule does not define "regularly," and the opinion leans on commentary tying the exception to the client having an evolved understanding of what they are paying. That is a judgment call, not a bright line, and it does not apply to contingent fees at all.
This is not just a Pennsylvania problem
Pennsylvania's version of the rule tracks the same shape as most states'. New York has required written engagement letters since 2002 for most fee-paying matters. California's Business and Professions Code Section 6148 requires a written contract once a client's expected costs pass $1,000. Massachusetts' Rule 1.5(b) requires the fee basis in writing within a reasonable time, with a narrow set of exceptions. The committee's recommendation beyond the bare minimum, a fuller written agreement countersigned by the client, is also the practice most malpractice carriers already push, because it is the single piece of paper that ends a fee dispute before it becomes a bar complaint.
If your state is not Pennsylvania, the specific citation is different, but the gap it is closing is the same one: a fee basis that lived in an email thread, a phone call, or someone's memory, with no clean record of what the client agreed to or when.
Where the actual exposure sits
The rule itself is easy to satisfy on day one. A new matter comes in, someone sends a fee letter, the client signs it or doesn't object, and the file moves on. The exposure shows up later: in the five years of retention Rule 1.15(c) requires, in whether the fee basis changed mid-matter and nobody wrote that down, in whether the "regularly represented" exception was actually true for a client the firm has not seen in three years, and in whether anyone can produce the writing fast enough when a fee dispute, a bar complaint, or a malpractice carrier asks for it.
None of that is a drafting problem. It is a tracking problem, and small firms running fee agreements out of an inbox and a shared drive are the ones who feel it, because there is no single place that knows which matters have a signed agreement on file, which ones are overdue for one, and which ones are past the retention window and safe to purge.
Where a workflow helps, and where it should not try to
This is the kind of gap an agentic workflow is actually good at closing, and the kind where the boundary matters just as much as the help. An agent can watch new-matter intake and flag any file missing a written fee basis before work starts. It can track the five-year retention clock per matter and surface what is coming up for review. It can draft the fee memo or closing statement from the firm's own template and matter details. What it should never do is decide a client counts as "regularly represented," send a fee agreement without a lawyer's review, or quietly purge a file because a clock ran out. Those are judgment calls and client-facing decisions, so a person signs off before anything goes out or gets deleted. The agent reads the file and proposes the next step. The lawyer decides.
That is also the basic shape of how we set up agentic workflows at CapeFear.ai: inside the tools a firm already uses, built around how that firm actually runs its intake, with a person approving anything that sends, files, or decides. Read more on how it works or see what we set up specifically for law firms.
Sources: Pennsylvania Bar Association Formal Opinion 2025-100 Reinforces Written Fee Agreements, Marshall Dennehey, January 2026; Formal Opinion 2025-100: Written Fee Arrangements summary.