Ethics Counsel on www.OKbar.org

Fee Splits Between Lawyers

By Gina Hendryx, Ethics Counsel

Fee division among lawyers most commonly occurs when one lawyer refers a case to another lawyer. Other scenarios may include when a client’s original attorney withdraws and is replaced by a successor, or a lawyer withdraws or retires from a firm. Regardless of the circumstances, lawyers from different firms who work on the same case may agree to split the legal fees earned on the case.

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 of the lawyers involved; and
  3. the total fee is reasonable.

Oklahoma Rule of Professional Conduct 1.5(e).

Rule 1.5(e) permits fee division based upon the proportion of work performed or if the lawyers jointly assume responsibility for the representation and the client agrees in writing to the attorneys’ arrangement. The attorney is not required to disclose to the client the percentage share each attorney is to receive. Whichever fee agreement the attorneys choose, the total fee must be reasonable.

Joint responsibility entails the obligations required of the lawyer in ORPC 5.1. This rule places the attorney in a “supervisory capacity” to be responsible for the other lawyer’s work and to make reasonable efforts to ensure the other lawyer conforms to the rules of professional conduct. Joint responsibility includes assumption of responsibility to client “comparable to that of a partner in a law firm under similar circumstances, including financial responsibility [and] ethical responsibility to the extent a partner would have ethical responsibility for actions of other partners in a law firm in accordance with Rule 5.1.” ABA Informal Ethics Op. 85-1514 (1985).

The best practice is to have fee division agreements in writing specifying the referring attorney’s role in the case and the terms of the split. However, agreements to divide fees may be expressed orally or in writing, or may be inferred from the lawyers’ customary working relationship.

Have an ethics question? It’s a member benefit, and all inquiries are confidential. Contact Ms. Hendryx at ginah@okbar.org or (405) 416-7083; (800) 522-8065.

Originally published in the Oklahoma Bar Journal -- Apr.9, 2005 -- Vol. 76; No.12