Opinion #103. Splitting Fees Without Regard to Responsibility Assumed

Issued by the Professional Ethics Commission

Date Issued: February 7, 1990

Question Presented

Bar Counsel, pursuant to Rule 11(c)(1), has requested an advisory opinion regarding the following question.

Is it a violation of Maine Bar Rule 3.3(d), or any other Bar Rule, for an attorney to engage in the following fee arrangement: Attorney A is contacted by a client to handle a personal injury matter. A decides that he should not handle the matter and refers the case to Law Firm B. After notice to, and obtaining consent from, the client in accordance with Rule 3.3(d)(1), A and B enter into an agreement with the client whereby A is to receive 1/9 of any recovery obtained and B is to receive 2/9. A is to have no responsibility with respect to the matter, and will have no other involvement in the case other than being kept apprised of the matter by B.

Opinion

At the outset it must be acknowledged that Maine Bar Rule 3.3(d), as adopted, differs significantly from its counterpart in the Model Code and the Model Rules. It reads as follows:

A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or office; unless:
(1) The client, after full disclosure, consents to employment of the other lawyer and to the terms for the division of the fees; and
(2) The total fee of the lawyer does not exceed reasonable compensation for all legal services they rendered to the client.

In the Model Code the provision reads as follows:

A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:
(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
(2) The division is made in proportion to the services performed and responsibility assumed by each.
(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.

DR 2‑107(A)

Under the Model Rules the provision reads:

A division of fee between lawyers who are not in the same firm may be made only if:
(1) The division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
(2) The client is advised of and does not object to the participation of all lawyers involved; and
(3) The total fee is reasonable.

Rule 1.5(e)

Curiously, despite the apparently significant linguistic deviation of the Maine Rule from its counterparts no mention or explanation is offered in the Reporter’s Notes. In fact the Notes appear to utterly ignore the difference and add a comment that is difficult to understand in view of the change. The reason for this curiosity, however, is not due to logical oversight or analytical failure on the part of the Reporter, but rather arose because the Rule was modified by the Supreme Judicial Court after it was presented in substantially unchanged form to the Model Code with the accompanying Notes.[1] In view of this aetiology, this Commission must conclude that the significant modification performed by the Supreme Judicial Court was intentional and designed to permit precisely the fee arrangement that this question presents.

While it may be persuasively argued that an arrangement of the type described results in a fee that is inherently unreasonable, the Committee must conclude that the arrangement per se does not violate the Rules. As long as the client is fully informed and consents to the arrangement, there exists no prohibition. The Maine Rule, while different from the Model Code, is by no means unique. At least a dozen other jurisdictions permit similar arrangements.[2] While the policy behind the Rule is a matter of debate, this Commission is authorized only to interpret the Rule as adopted which is unambiguous: the proposed arrangement is not prohibited provided that the other conditions set forth are satisfied.


[1] See original report of the Select Commission on Professional Responsibility presented to the Supreme Judicial Court in 1979 on file in the State Law Library.

[2] As of the date of this request, the following states appear to deviate from the Model Code in a similar manner: Alabama, California, Connecticut, Illinois, Kansas, Massachusetts, Michigan, Oregon, Pennsylvania, Puerto Rico, Texas and Virginia.


Enduring Ethics Opinion

Enduring Ethics Opinions 103 [June 2016]