I was suspended for a short time during a long case and brought in another lawyer on a 50/50 fee split. Now that we won, can I still take half the fee?

Plain-English summary

Attorney A represented a client in a negligence matter pending for nine and a half years. About four years in, Attorney A was suspended from practice for roughly eleven months and arranged for Attorney B to take over the case on a 50/50 fee-sharing basis, with Attorney C to be engaged as trial counsel and paid out of A's and B's fees. After reinstatement, Attorney A resumed providing services, retained and paid Attorney C, paid trial expenses and experts, and joined in defending the appeal from a substantial verdict for the client. Attorney A asked whether he was entitled to fifty percent of the fee.

The panel concluded that Rule 1.5(e) permitted the lawyers to divide the fee either in proportion to services rendered or on some other basis, such as the arrangement described, by written agreement with the client if each lawyer assumed responsibility for the representation. The panel distinguished its earlier Opinion 98-14, which held that an attorney and a disbarred attorney could not split a contingent fee on a 50/50 basis unless each provided half the services, because a disbarred attorney cannot assume the continued responsibility the rule requires.

The panel found the case before it distinguishable: Attorney A's suspension was brief relative to the nine-and-a-half-year pendency, and after reinstatement Attorney A resumed the representation with Attorneys B and C for about five more years. On those facts, the panel concluded the fee arrangement would be permissible, provided there was a written agreement between the lawyers and the client on the division of fees; absent such an agreement, Attorney A was entitled to compensation for the reasonable value of the services rendered. The panel noted its jurisdiction was limited to whether the arrangement was permissible under the Rules, and that it could not decide whether Attorney A was entitled as a matter of law to fifty percent of the fee.

Currency note

This opinion was issued in November 1999, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.5(e) as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Could a suspended attorney share a fee on a basis other than proportion of services?

A: On these facts, yes. The opinion concluded Rule 1.5(e) allowed division either in proportion to services or on another basis by written agreement with the client, and found the arrangement permissible because the attorney's suspension was brief and he resumed the representation after reinstatement.

Q: Why did the panel reach a different result than in Opinion 98-14?

A: The opinion distinguished 98-14, where a disbarred attorney could not split a contingent fee on a non-proportional basis because a disbarred attorney cannot assume the continued responsibility the rule requires. Here, the attorney was only briefly suspended and then reinstated and resumed the case.

Q: What was required for the 50/50 division to be permissible?

A: A written agreement between the lawyers and the client regarding the division of fees. The opinion stated that in the absence of such an agreement, the attorney would be entitled to compensation for the reasonable value of the services he rendered.

Q: Did the panel decide the attorney was legally entitled to half the fee?

A: No. The opinion stated the panel's jurisdiction was limited to whether the arrangement was permissible under the Rules and that it was without jurisdiction to decide whether the attorney was entitled as a matter of law to fifty percent of the fee.

Background and rules framework

The opinion applied Rhode Island Rule of Professional Conduct 1.5(e) (Model Rule 1.5(e)), which at the time permitted a division of a fee between lawyers who are not in the same firm only if the division is in proportion to services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; the client is advised of and does not object to the participation of all the lawyers; and the total fee is reasonable. The panel read that rule against its prior opinions on fee division involving suspended and disbarred lawyers, principally Opinion 98-14 (1998) and Opinion 92-87 (1992).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5(e) / RI RPC 1.5(e) (division of a fee between lawyers not in the same firm)

Other opinions cited:

• R.I. Ethics Advisory Panel Op. 98-14 (1998): a disbarred attorney could not split a contingent fee on a 50/50 basis absent equal services
• R.I. Ethics Advisory Panel Op. 92-87 (1992): a suspended or disbarred attorney is entitled to the reasonable value of services rendered before suspension or disbarment

See also

• ABA Formal Op. 487: Fee division with a client's prior counsel
• ABA Formal Op. 475: Safeguarding fees subject to division
• ABA Formal Op. 94-388: Relationships among law firms
• RI EAP Op. 89-21: One-third of gross settlement, fee lien on discharge invalid

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2099-19.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Final

                            RHODE ISLAND SUPREME COURT
                               ETHICS ADVISORY PANEL
                             Opinion No. 99-19, Request No. 789
                                Issued November 18, 1999

Facts:

    The inquiring attorney, Attorney A, represents a client in a negligence matter that has been

pending for nine and a half years. About four years into the representation, Attorney A was suspended
from the practice of law for about eleven months. Attorney A states that as a result of the suspension,
Attorney A arranged for Attorney B "to take over this case on a 50/50 fee-sharing basis" with the
understanding that if the case proceeded to trial, Attorney C would be engaged as trial counsel, and that
Attorney C would be paid out of the fees of Attorney A and Attorney B.

     Attorney A further states that he/she provided several hundred hours of legal services for

litigation, trial preparation, and research prior to the suspension. After he/she was reinstated to the
practice of law, Attorney A continued to provide these services, retained Attorney C, paid Attorney C
weekly, paid all trial expenses and experts, and together with Attorney B and Attorney C, has recently
defended the appeal from a judgment in favor of the client, who was awarded a substantial verdict at the
trial.

Issue Presented:

     Attorney A asks whether he/she is entitled to fifty percent of the fee.

Opinion:

    Rule 1.5(e) permits the lawyers in this inquiry to divide the fee either on the basis of the

proportion of services they rendered or on some other basis, such as the arrangement described,
by written agreement between the lawyers and the client if each lawyer assumes responsibility for the
representation.

Reasoning:

     Rule 1.5(e) states:

             (e) 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, by written agreement

Final Op. 99-19
Page 2

                    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 the lawyers involved; and

                    (3) the total fee is reasonable.

    In general, a disbarred or suspended attorney is entitled to be compensated for the reasonable

value of the services he/she provided prior to the suspension or disbarment. See R.I. Sup. Ct. Ethics
Advisory Panel No. 92-87 (1992). In Ethics Advisory Panel Op. 98-14, the Panel stated that the
attorney in that inquiry and a disbarred attorney could not "split" a contingent fee under their 50-50
arrangement unless each attorney provided one-half the services. See R.I. Sup. Ct. Ethics Advisory
Panel No. 98-14 (1998). The Panel reasoned that a disbarred attorney cannot assume the continued
responsibility required by the provision of the rule which permits fee-sharing that is not based on the
proportion of services rendered. Id.

   Based on the facts as presented by Attorney A, the instant case is distinguishable. Attorney A

was suspended for a brief period relative to the nine-and-a-half year pendency of the
case. Additionally, Attorney A was reinstated to the practice of law and, together with Attorney B and
Attorney C, resumed the representation of the client for approximately five years thereafter.

    The Panel concludes that the fee arrangement described in this inquiry would be permissible on

these facts, provided that there is a written agreement between the lawyers and the client regarding the
division of fees. In the absence of a written agreement, Attorney A is entitled to be compensated for
the reasonable value of the services he/she rendered in the case.

     The Panel's jurisdiction is limited to advising the inquiring attorney about whether the proposed

fee arrangement is permissible under the Rules of Professional Conduct. The Panel is without
jurisdiction to decide whether Attorney A is entitled as a matter of law to fifty percent of the fee.