Washington Lawyer - October 2019 - 40

ASK THE ETHICS EXPERTS

A TWIST ON
FEE SHARING
By Erika Stillabower

I understand that when
lawyers who are not in
the same firm work
together on a matter,
they have an obligation
to comply with the feesharing provisions of Rule
1.5(e).1 But now I'm in a
bit of a quandary. About
halfway through a
contingency case on which I was the primary
attorney, I left the law firm to start my own
practice and, upon the client's request, brought
that matter with me. Upon receiving the settlement check, I offered my former firm what I
believed was a fair amount of money from the
legal fees earned on the matter to compensate

for the period of time when I worked on the
case there. The firm is demanding more money.
Does Rule 1.5(e) apply in these circumstances?

Rule 1.5(e) does not apply.
That rule is designed to
permit lawyers in different firms to share a
legal fee to facilitate their
association when neither
one could serve the client
as well.

Here, the client hired a single law firm and
agreed that the legal fee would be a specified
percentage of any recovery. Any money to
which your former firm may be entitled would

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40 WASHINGTON LAWYER

OCTOBER 2019

be for past work undertaken while you were at
that same firm. At the time the fee agreement
was signed, the lawyers involved did not contemplate dividing the fee "in proportion to the
services performed" or in connection with "joint
responsibility for the representation," as
provided by the rule. Rather, the payment at
issue here reflects independent legal obligations that you may have to your former firm or
money to which your former firm may be
entitled as a matter of law. So long as the
client's liability for legal fees remains the same
under the contingency fee agreement, the Rules
of Professional Conduct do not limit your ability
to negotiate a reasonable division of the legal
fees received from this representation with your
former firm. 2
D.C. Bar legal ethics counsel Saul Jay Singer, Hope
C. Todd, and Erika Stillabower are available for
inquiries on the Legal Ethics Helpline at 202-7374700, ext. 1010, or at ethics@dcbar.org.

NOTES

1 A division of a 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 each lawyer assumes
joint responsibility for the representation;
(2) The client is advised, in writing, of the identity of the
lawyers who will participate in the representation, of
the contemplated division of responsibility, and of the
effect of the association of lawyers outside the firm on
the fee to be charged;
(3) The client gives informed consent to the
arrangement; and
(4) The total fee is reasonable.
2 Note that any agreement reached between the
departed lawyer and the firm must comply with Rule
5.6, which prohibits restrictions on a lawyer's right to
practice. See also Legal Ethics Opinions 241 (1993) and
368 (2015).

Washington Lawyer - October 2019

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