When a lawyer leaves a firm with a contingent-fee client, may the lawyer pay the old firm the fees the client owed it?
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This page answers the general question as of 1988. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The inquiry concerned a lawyer who left a former law firm and took with him a contingent-fee client. The question was whether the lawyer may ethically pay the client's fees owing to the old law firm.
The committee was of the opinion that such a payment would be resolving the question of sharing fees between the lawyer and the former law firm and therefore would not be prohibited. The committee believed that a new fee agreement should be entered into between the lawyer and client in writing, pursuant to RPC 1.5(c), to reflect the sharing of fees.
Currency note
This opinion was issued in 1988, before the 2006 revisions to the Washington Rules of Professional Conduct. The rules then numbered RPC 1.5 (fees, including the contingent-fee writing requirement in RPC 1.5(c)) and RPC 1.8 correspond to Model Rules 1.5 and 1.8 and have since been amended. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: Can a departing lawyer pay the old firm the fees a contingent-fee client owed it?
A: Per the opinion, yes. The committee was of the opinion that such a payment would resolve the sharing of fees between the lawyer and the former firm and so would not be prohibited.
Q: Does a new fee agreement need to be in writing?
A: The committee believed a new fee agreement should be entered into between the lawyer and client in writing, pursuant to RPC 1.5(c), to reflect the sharing of fees.
Background and rules framework
The opinion applies the rules then numbered Washington RPC 1.5 and RPC 1.8, corresponding to Model Rules 1.5 and 1.8. The committee treated the departing lawyer's payment to the former firm as a resolution of fee sharing between the two lawyers rather than a prohibited arrangement, and pointed to RPC 1.5(c)'s writing requirement for a new contingent-fee agreement with the client.
Citations and references
Rules of Professional Conduct:
- Washington RPC 1.5(c) (contingent-fee agreements in writing), corresponding to Model Rule 1.5.
- Washington RPC 1.8, corresponding to Model Rule 1.8.
See also
- WSBA Ethics Op. 1117: dividing a contingent fee between a firm and a departing lawyer by hours
- WSBA Ethics Op. 1172: dividing fees with a lawyer about to be suspended
- WSBA Ethics Op. 1154: a fee division with a referring lawyer where the referral may create a conflict
Source
- Landing page: https://ao.wsba.org/print.aspx?ID=290
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
Advisory Opinion: 1210
Year Issued: 1988
RPC(s): RPC 1.5; 1.8
Subject: Advancing financial assistance; division of fees
The Committee reviewed your inquiry concerning a lawyer who left a former law firm and took with him a contingent fee client. The question presented is whether the lawyer may ethically pay for the client fees owing to the old law firm. The Committee was of the opinion that such payment would be resolving the question of sharing fees between the lawyer and the former law firm and therefore it would not be prohibited. The Committee believed that a new fee agreement should be entered into between the lawyer and client in writing, pursuant to RPC 1.5(c) to reflect the sharing of fees.
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