How may a Florida lawyer pay a for-profit lawyer-matching or referral service without improperly splitting fees?

Plain-English summary

Responding to Board of Governors inquiries, the opinion addresses which methods of paying a for-profit qualifying provider are permissible. It applies Rule 4-7.22(d), which lets lawyers participate with for-profit qualifying providers only if specific requirements are met, and Rule 4-7.22(d)(2), which bars participation where the provider's fee constitutes a division of legal fees. The opinion ties this to Rule 4-5.4, explaining that the no-fee-sharing rule exists to preserve the lawyer's independent professional judgment and to discourage improper solicitation; the comment to Rule 4-7.22 treats a fee calculated as a percentage of the lawyer's fee, or based on the success or perceived value of the case, as an improper division.

The opinion surveys how other states have treated lawyer-matching and group-advertising arrangements, noting a general acceptance of fixed periodic fees and per-click or per-impression charges (paid for exposure rather than for referrals) and a general rejection of per-case charges that vary with the value of the matter and of percentage-of-fee charges.

The opinion then sets out factors and examples. Generally permissible: a reasonable, pre-arranged fixed charge per time period; a reasonable fixed per-click charge; a reasonable fixed per-matter charge not contingent on outcome and not varying with the amount at issue; and a per-matter charge that varies only by demonstrably different marketing and administrative costs. Generally impermissible: a charge that is a percentage of the lawyer's fee or the client's recovery; a charge based on the perceived value of the case; a flat charge that differs by perceived value; a flat charge per case accepted; and a flat per-case charge that differs by matter type. Participation must also be assessed case by case and may raise other ethics concerns beyond fee splitting.

In practice

Under the Florida rules as they stood at the time of this 2018 opinion, paying a for-profit qualifying provider is permitted when the charge reflects the provider's marketing and administrative costs (and a reasonable profit) and is imposed regardless of whether the lawyer is hired, rather than functioning as a share of the lawyer's fee. The opinion makes the controlling question whether the charge is for exposure and service or is instead tied to the fee, the client's recovery, or the perceived value of the case. The opinion stresses that compliance is a case-by-case determination and that a permissible fee structure alone does not guarantee that participating with a particular provider is proper.

Common questions

Q: Can a Florida lawyer pay a matching service a percentage of the fee earned?

A: No. The opinion treats a charge calculated as a percentage of the lawyer's fee, or of the client's recovery, as an improper division of fees prohibited by Rules 4-5.4 and 4-7.22(d)(2).

Q: Is a flat "per case" or "per lead" fee allowed?

A: It depends on how it is set. The opinion treats a reasonable fixed per-matter charge that is not contingent on outcome and does not vary with the amount at issue as generally permissible, but a flat per-case charge that varies by the perceived value or type of matter as generally impermissible.

Q: Are pay-per-click and fixed monthly advertising charges acceptable?

A: Generally yes. The opinion treats a reasonable fixed periodic charge and a reasonable per-click charge as permissible because they pay for exposure rather than for the referral or the fee generated.

Background and rules framework

The opinion interprets Rule 4-7.22 (qualifying providers and lawyer referral arrangements, related to Model Rule 7.2) and its subdivision (d), together with Rule 4-5.4 (professional independence and the bar on fee sharing with nonlawyers, Model Rule 5.4) and Rule 4-1.7(a)(2) (personal-interest conflicts, Model Rule 1.7) of the Rules Regulating The Florida Bar.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.4 / Fla. Rule 4-5.4 (professional independence; fee sharing with nonlawyers)
• Model Rule 7.2 / Fla. Rule 4-7.22 and 4-7.22(d) (qualifying providers; referral arrangements)
• Model Rule 1.7 / Fla. Rule 4-1.7(a)(2) (personal-interest conflicts)

Other opinions cited:

• Arizona Ops. 11-02, 99-06; Indiana Op. 1-18; Kentucky Op. E-429; New Jersey Ops. 732, 43; New York City Op. 2000-1; New York State Ops. 1131, 1132; Maine Op. 174; Ohio Op. 2016-3; Oregon Op. 2007-180; Pennsylvania Op. 2016-200; South Carolina Ops. 16-06, 01-03, 01-01; South Dakota Op. 98-10; Utah Ops. 17-05, 15-05

See also

• Florida Bar Op. 17-1: Fee Division With a Nonlawyer-Owned Out-of-State Firm
• TX Ethics Op. 704: Texas Lawyer Joining a D.C. Firm With a Nonlawyer Partner

Source

• Landing page: https://www.floridabar.org/etopinions/opinion-18-1/
• Original PDF: https://www-media.floridabar.org/uploads/2019/01/FL-Bar-Ethics-Op-18-1-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 18-1
December 14, 2018
Advisory ethics opinions are not binding.
The opinion provides guidelines on permissible and impermissible payments to a for-
profit qualifying provider.
RPC: 4-5.4, 4-7.22
Ethics Opinions: Arizona Ethics Opinion 11-02 (2011); Arizona Ethics Opinion 99-06
(1999); Indiana Ethics Opinion 1-18 (2018); Kentucky Ethics Opinion E-
429 (2008); New Jersey Ethics Opinion 732 (2017); New Jersey Ethics
Opinion 43 (2011) New York City Bar Opinion 2000-1 (2000); New York
State Ethics Opinion 1132 (2017); New York State Bar Association Ethics
Opinion 1131 (2017); Maine Ethics Opinion 174 (2000); Ohio Ethics
Opinion 2016-3 (2016); Oregon Ethics Opinion 2007-180 (2007);
Pennsylvania Ethics Opinion 2016-200 (2016); South Carolina Ethics
Opinion 16-06 (2016); South Carolina Ethics Opinion 01-03 (2001); South
Carolina Ethics Opinion 01-01 (2001); South Dakota Ethics Opinion 98-
10 (1999); Utah Ethics Opinion 17-05; Utah Ethics Opinion 15-05 (2015)
Other Authority: Annotated Model Rules of Professional Conduct, 8th Edition (2015);
Simon, “Fee Sharing Between Lawyers and Public Interest Groups,” 98
Yale L.J. 1069 (1989)
The Board of Governors of The Florida Bar has received inquiries regarding which
methods of payment by Florida Bar members to for-profit qualifying providers are permissible.
Lawyers are permitted to participate with for-profit qualifying providers only if the
qualifying providers meet specific requirements set forth in Rule 4-7.22(d). Lawyers may not
participate with a for-profit qualifying provider if that qualifying provider charges a fee that
constitutes a division of legal fees. See Rule 4-7.22(d)(2). See also, Rule 4-5.4.
The comment to Rule 4-7.22 provides further guidance:
A lawyer may not participate with a qualifying provider that receives any fee that
constitutes a division of legal fees with the lawyer, unless the qualifying provider
is The Florida Bar Lawyer Referral Service or a lawyer referral service approved
by The Florida Bar pursuant to chapter 8 of these rules. A fee calculated as a
percentage of the fee received by a lawyer, or based on the success or perceived
value of the case, would be an improper division of fees. Additionally, a fee that
constitutes an improper division of fees occurs when the qualifying provider
directs, regulates, or influences the lawyer’s professional judgment in rendering
legal services to the client. See e.g. rules 4-5.4 and 4-1.7(a)(2). Examples of
direction, regulation or influence include when the qualifying provider places
limits on a lawyer’s representation of a client, requires or prohibits the
performance of particular legal services or tasks, or requires the use of particular
forms or the use of particular third party providers, whether participation with a

particular qualifying provider would violate this rule requires a case-by-case
determination.
The prohibition against fee sharing found in Rule 4-5.4 is based on preservation of the
lawyer’s independent professional judgment against interference by a third party with whom the
lawyer partners or divides legal fees. See, Annotated Model Rules of Professional Conduct, 8th
Edition (2015); Simon, “Fee Sharing Between Lawyers and Public Interest Groups,” 98 Yale L.J.
1069 (1989). Prohibitions against fee sharing and paying for referrals also discourage improper
solicitation of clients. See, Simon, above. Rule 4-7.22(d)(1) explicitly prohibits a lawyer’s
participation with a qualifying provider that violates rules on lawyer advertising and solicitation.
Other states have addressed how entities that connect lawyers and prospective clients are
paid. While opinions of other states may be helpful, they are not dispositive of how Florida will
address a particular issue. This issue is complicated by the fact that many states prohibit for-
profit lawyer referral services. States have permitted lawyers to participate in Internet sites that
do not charge the lawyer, but instead profit from charges to consumers or selling advertising to
others. See, New York City Bar Opinion 2000-1 (2000) (lawyer may participate in website
where clients post legal projects, lawyer “bids” on legal projects, but only consumer is charged
by website); Maine Ethics Opinion 174 (2000) (lawyer may be listed on a website where website
charges consumers for using the website and obtains revenue from advertising posted on the
website). Two states have opined that a fixed monthly or annual fee (or other set periodic fee not
related to cases generated) is permissible. See, Oregon Ethics Opinion 2007-180 (2007) (lawyer
may pay based on fixed annual or other set periodic fee not related to particular work generated
from advertising, but may not pay based on number of referrals, retained clients, or revenue
generated from advertisements) and South Carolina Ethics Opinion 01-01 (2001) (Lawyer may
pay Internet service for advertising services based on a set monthly or yearly fee or based on the
number of hits on the lawyer’s information, but may not direct the Internet site user to a
particular lawyer and may not pay any part of legal fees from clients who were referred).
A majority of states that have addressed payment of a fixed amount “per click” or “per
hit” have concluded that lawyers may participate in a group advertising program charging a fixed
amount “per click” or “per hit.” Those opinions conclude that the payment is for exposure, and
not for the referral of clients, the hiring of the lawyer by particular clients, or the amount of fees
paid to the lawyer. See, Arizona Ethics Opinion 11-02 (2011) (lawyer may pay website on a pay
per lead or pay per click basis); Kentucky Ethics Opinion E-429 (2008) (lawyer may pay group
marketing program based on number of “hits” but not per referral); New Jersey Ethics Opinion
43 (2011) (pay per lead or per click is not prohibited).
One state has concluded that a lawyer may participate in a website in which lawyers
“bid” on projects posted by consumers and pay for each “bid,” because the lawyer pays to bid
regardless of whether selected by the consumer. Utah Ethics Opinion 15-05 (2015). Another
has advised that lawyers may pay per referral to participate in a for-profit, Internet based service
that matches lawyers with prospective clients. New York State Bar Association Ethics Opinion
1131 (2017). However, two states have concluded that payment per referral is prohibited. See,
Kentucky Ethics Opinion E-429 (2008) (lawyer may pay group marketing program based on
number of “hits” but not per referral); Oregon Ethics Opinion 2007-180 (2007) (lawyer may pay
may not pay based on number of referrals, retained clients, or revenue generated from
advertisements).

Several states reviewed an Internet based program in which lawyers agreed to accept flat
fees that varied for particular types of cases, the entity collected the entire fee from the client, the
entity paid the fee to the lawyer after the lawyer has concluded the legal work on the matter, and
the lawyer paid a separate “marketing fee” to the entity that varied according to the type of
matter referred to the lawyer. Most of those states concluded that lawyers may not pay a set fee
for each accepted case. See, Indiana Ethics Opinion 1-18 (2018); New Jersey Ethics Opinion
732 (2017); New York State Ethics Opinion 1132 (2017); Ohio Ethics Opinion 2016-3 (2016);
Pennsylvania Ethics Opinion 2016-200 (2016); South Carolina Ethics Opinion 16-06 (2016);
Utah Ethics Opinion 17-05.
States also generally have advised lawyers against participating with entities that receive
a percentage of the lawyer’s fee. See, Arizona Ethics Opinion 99-06 (1999) (lawyer may not
participate in website to answer consumer questions where lawyer is charged a one-time fee, a
minimum deposit for first 30 questions, a separate fee for each question referred, and a
percentage of any fee from a client whose question is referred to the lawyer); South Dakota
Ethics Opinion 98-10 (1999) (internet referral service with annual fee and requirement that
lawyer pay 10% of legal fees over $100 for referred cases violates rules prohibiting fee-splitting);
South Carolina Ethics Opinion 01-03 (2001) (lawyer may not pay Internet service any part of legal
fees from clients referred by the service).
The board cannot address every possible method of calculating the charges of a
qualifying provider, which must be assessed on a case-by-case basis. In determining whether a
qualifying provider’s particular method of charging for participation violates Rules 4-5.4 and 4-
7.22(d)(2), the board believes the following factors should be considered.
The following factors would mitigate in favor of a conclusion that the charge is
permissible:
• the charge is reasonably based on the qualifying provider’s costs for marketing
and administration plus a reasonable profit; and
• the charge is imposed regardless of whether the lawyer is hired by the prospective
client.
The following factors may or may not lead to a conclusion that the charge is permissible,
depending on the circumstances, and might require further scrutiny:
• the charge varies and on what basis; and
• the qualifying provider sets the lawyer’s fee and on what basis.
The following factors would mitigate in favor of a conclusion that the charge is
impermissible:
• the charge is based on the perceived value of the individual matter;
• the qualifying provider collects the lawyers’ fees directly from the consumer,
takes a portion of the fee as the charge for the referral or match, then remits the
remainder to the lawyer;

• the qualifying provider interferes with the lawyer’s independent professional
judgment in representing clients or directs the lawyer’s activities in representing
clients; and
• there is sufficient incentive for the qualifying provider to improperly solicit
prospective clients or improperly market the service.
In applying these facts, the board believes the following would generally be permissible:
• a reasonable, pre-arranged fixed charge per time period such as weekly, monthly,
or yearly;
• a reasonable, pre-arranged fixed charge for each time a consumer views
information about a specific lawyer, commonly referred to as “pay-per-click”;
• a reasonable, pre-arranged fixed charge per matter referred to the lawyer that is
not contingent on the outcome of the matter and does not vary based on the
amount at issue in the matter; and
• a reasonable, pre-arranged fixed charge per matter referred to the lawyer that
varies based on the type of matter only if the varying charge is based on
demonstrably different marketing and administrative costs rather than the
perceived value of the case;
The board believes the following would generally be impermissible:
• a charge calculated as a percentage of the fee received by a lawyer;
• a charge calculated as a percentage of the client’s recovery in the matter;
• a charge based on the perceived value of the case referred to or accepted by a
participating lawyer;
• a flat charge that differs based on the perceived value of the case referred to or
accepted by a participating lawyer;
• a flat charge per case accepted by a participating lawyer; and
• a flat charge per case accepted by a participating lawyer that differs based on the
type of matter (e.g., personal injury versus family law).
In summary, determining whether a particular method of charging for the services of a
qualifying provider comply with Rules Regulating The Florida Bar which prohibit a lawyer from
sharing fees with a qualifying provider must be determined on a case-by-case basis, which will
be guided by the considerations set forth in this opinion. The board cautions that this opinion
addresses solely the issue of whether a particular method of charging for the services of a
qualifying provider constitute impermissible fee splitting, that the method by which particular
qualifying providers operate may raise other ethics concerns under the Rules of Professional
Conduct, and that lawyers should not assume that a lawyer may participate with a particular

qualifying provider solely because the qualifying provider’s method of charging for its services
falls within one of the methods the board concludes generally would be found to be permissible.