Can a lawyer share a contingent fee with another attorney whose only role in the case was serving as a witness?

Plain-English summary

A lawyer was hired by a bank, acting as guardian of an incompetent's property, to recover assets the incompetent had allegedly conveyed while incompetent. Another attorney, who had represented the incompetent before her adjudication, served as a witness in the successful litigation. The fee was an oral contingent fee between the inquirer and the bank, approved by the county judge, and had been paid from the guardianship assets.

The witness attorney then asked the inquirer to pay him a "one-third referral fee," apparently because of his earlier preliminary contact with the inquirer before the incompetency adjudication. The inquirer asked whether he could do so.

The committee concluded he could not. Canon 34 barred dividing a fee with anyone other than a lawyer, and then only upon a division of services and responsibility. Canon 19 had been interpreted to preclude an attorney from testifying for a client while participating in a contingent fee, as the committee had held in Opinion 67-30 (since withdrawn). The committee advised that it would be improper for the inquirer to directly or indirectly participate in paying the requested fee.

Currency note

This opinion was issued in 1968, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canons 19 and 34 on a lawyer serving as a witness and on dividing fees. Fee arrangements and fee division are now addressed by Rules 4-1.5 and 4-5.4, and a lawyer's service as a witness by Rule 4-3.7. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer pay another lawyer a share of the fee for serving as a witness?

A: Under this opinion, no. The committee found that an attorney whose only contact with the litigation was as a witness could not share in the contingent fee, citing both the fee-division limits of Canon 34 and the bar on a witness participating in a contingent fee under Canon 19.

Q: Did calling it a "referral fee" change the result?

A: No. The committee treated the payment as a fee division barred by Canon 34, which allowed division only with a lawyer and only upon a division of services and responsibility, and concluded the inquirer could not directly or indirectly participate in the payment.

Background and rules framework

The opinion applied the former Canon 34, which limited fee division to lawyers sharing services and responsibility, and the former Canon 19, which the committee read to bar an attorney from both testifying for a client and sharing in a contingent fee. Fee arrangements and division are now addressed by Rules 4-1.5 and 4-5.4 of the Rules Regulating The Florida Bar, and a lawyer as witness by Rule 4-3.7; the Model Rule analogues are Rules 1.5, 5.4, and 3.7.

Citations and references

Rules of Professional Conduct:

• Canons 19, 34 [Canons of Professional Ethics; now Rules 4-1.5, 4-5.4, 4-3.7]

Other opinions cited:

• Florida Opinion 67-30 (since withdrawn): attorney testifying while sharing a contingent fee

See also

• FL Bar Ethics Op. 68-58: Naming a Professional Association

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-19/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-19-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 68-19
May 7, 1968
Advisory ethics opinions are not binding.
It would be improper for an attorney to divide a contingent fee with another attorney whose only contact with the litigation in question was in the role of a witness.
Canons: 19, 34
Opinion: 67-30
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar was employed by a bank acting as guardian of the property of an incompetent to collect certain assets which the incompetent allegedly had conveyed while incompetent. Another attorney, who had previously represented the incompetent prior to her adjudication as incompetent, served as a witness in the litigation, which successfully established the right of the guardian to certain properties.
The contract under which the inquirer handled the litigation was an oral contingent fee contract between himself and the bank, which was expressly approved by the county judge prior to the prosecution of the litigation. Upon successful conclusion of the litigation the fee called for by such contract has been duly paid by the bank as guardian from the assets of the guardianship.
The inquirer has now been approached by the other attorney who served as a witness. He has been requested to pay the witness what is described as "a one-third referral fee," presumably because of earlier preliminary contact by this attorney with the inquirer prior to the declaration of incompetency and the appointment of the bank.
Canon 34 precludes a division of fee with anyone other than a lawyer and only then upon a division of services and responsibility. Beyond this the provisions of Canon 19 have been interpreted to preclude an attorney testifying for a client and participating in a contingent fee. See our Opinion 67-30 [since withdrawn]. Under the circumstances, therefore, we must advise the inquirer that it would be improper for him to directly or indirectly participate in the payment of the requested referral fee.