Can a lawyer divide a contingency fee with co-counsel who was suspended from practice before the fee was paid, and can he employ a suspended attorney in a non-legal role?

Currency note

This opinion was issued in 1983, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Plain-English summary

Attorney A associated Attorney B on a contingency-fee personal-injury case, agreeing to divide the fee based on time, expertise, and responsibility. A had done considerable work before B joined; B then did the bulk of the work, tried the case, and won a verdict. Before the judgment was paid and the fee divided, A was suspended from practice. B asked whether A could be compensated by a fee division for any non-legal, clerical, or investigative work, and whether it was ethical to divide a contingency fee with a suspended attorney.

The opinion noted that, on these facts, the suspension occurred after the verdict and before payment, leaving little room for clerical or investigative work, but addressed the question regardless. It concluded it is improper for an attorney to employ a suspended or disbarred attorney in a non-legal capacity, citing ABA Informal Opinion 1434 and a synopsis of ABA Informal Opinion 7; a suspended or disbarred attorney must refrain from the practice of law in any form, "either as principal, agent, clerk, employee or paralegal of another," and such employment would both risk straying into law practice and show disrespect to the courts.

On the fee, the opinion explained that Disciplinary Rule 3-102 prohibits dividing a legal fee with a non-lawyer, and Disciplinary Rule 2-107 requires that fee divisions among attorneys be based solely on the division of services, responsibility, and work performed, with the client's consent after full disclosure. It concluded there is no impropriety in dividing an attorney fee with a suspended attorney based solely on the work performed and responsibility assumed before his suspension, provided the client gave informed consent at the time of the association.

Common questions

Q: Can a lawyer split a contingency fee with co-counsel who was suspended before the fee was paid?

A: Yes, for the right work. The opinion found "no impropriety in dividing an attorney fee with a suspended attorney based solely on the work performed and responsibility assumed prior to his suspension, provided there was informed consent of the client at the time of the association."

Q: Can the suspended attorney be paid for non-legal or clerical work on the case?

A: No. The opinion concluded it is "improper for an attorney to employ a suspended or disbarred attorney in a non-legal capacity," because such an attorney must refrain from the practice of law in any form and the employment would show disrespect to the courts.

Q: What rules govern dividing the fee?

A: Disciplinary Rule 3-102 bars dividing a legal fee with a non-lawyer, and Disciplinary Rule 2-107 requires fee divisions among attorneys to rest "solely on the division of services, responsibility and work performed" and on the client's consent after full disclosure.

Background and rules framework

The opinion applied Disciplinary Rule 3-102 (no division of legal fees with a non-lawyer) and Disciplinary Rule 2-107 (division of fees among lawyers) of the Tennessee Code of Professional Responsibility, and relied on ABA Informal Opinions 1434 and 7 for the rule against employing suspended or disbarred attorneys. The modern correlates are Model Rule 5.4 (a lawyer may not share legal fees with a non-lawyer) and Model Rule 1.5(e) (division of a fee between lawyers), noted here as navigational cross-references rather than rules the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 3-102 (no division of legal fees with a non-lawyer) and DR 2-107 (division of fees among lawyers), Tennessee Code of Professional Responsibility
• Model Rule 5.4 (professional independence; sharing fees with non-lawyers) and Model Rule 1.5(e) (division of fees between lawyers), modern correlates

Other opinions cited:

• ABA Informal Opinion 1434, employing a suspended or disbarred attorney
• ABA Informal Opinion 7, a lawyer should not employ a disbarred lawyer even for office work

See also

• Tennessee Op. 84-F-81: Fee Sharing With a Collection Agency
• Tennessee Op. 84-F-62: Fee Sharing With a Religious Order
• Tennessee Op. 85-F-101: Medical Consultant on a Contingent Fee

Source

• Landing page: https://www.tbpr.org/ethic_opinions/83-f-50

Original opinion text

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

83-F-50 - Suspended attorney

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 83-F-50

Inquiry is made concerning the propriety of employing a suspended attorney in a non-legal capacity; and, the propriety of dividing an attorney fee with a suspended attorney.

Attorney A, duly licensed, associates Attorney B to assist in the preparation and trial of a personal injury lawsuit. The fee agreement with the client B is on a contingency basis. The two attorneys agree that the fee will be divided, taking into account the time spent by each of them, the expertise, experience and responsibilities in the case. Attorney A has done considerable work on the case prior to associating Attorney B. After the association, Attorney B does the bulk of the work, files, prepares and tries the lawsuit resulting in a verdict. At the time the judgment is paid and the fee is to be divided, Attorney A has been suspended from practice.

Attorney B inquires, if the suspended attorney performs non-legal, clerical or investigative services on the case, may he be compensated for such work by a division of the fee; and, is it ethical to divide a fee in a contingency case with an attorney who has been suspended from practice?

It appears from the facts that the suspension of the attorney occurred after the verdict was rendered and before the judgment was paid and, therefore, there would be little likelihood for the performance of clerical or investigative services on the case. However, assuming arguendo, that the suspension occurred earlier, and in any event, it is improper for an attorney to employ a suspended or disbarred attorney in a non-legal capacity. See ABA Informal Opinion 1434. The suspended or disbarred attorney is to refrain from the practice of law in any form, either as principal, agent, clerk, employee or paralegal of another. A synopsis of unpublished ABA Informal Opinion 7 states:

An attorney should not employ a disbarred lawyer, even to do only office work and seeing no clients, because of the practical difficulty of confining his activities to an area which does not include practice of law, and because such employment would show disrespect to the courts (found at page 134 of the ABA Opinions on Professional Ethics, 1967 edition).

Disciplinary Rule 3-102 of the Code of Professional Responsibility prohibits an attorney from dividing a legal fee with a non-lawyer. Disciplinary Rule 2-107 provides that all divisions of fees among attorneys must be based solely on the division of services, responsibility and work performed; and, only with the consent of the client to employment of the other attorney after a full disclosure that a division of fees will be made.

Therefore, there is no impropriety in dividing an attorney fee with a suspended attorney based solely on the work performed and responsibility assumed prior to his suspension, provided there was informed consent of the client at the time of the association.

This 12th day of August, 1983.

ETHICS COMMITTEE:

Edwin C. Townsend

W. J. Flippin

Henry H. Hancock

APPROVED AND ADOPTED BY THE BOARD