Does a Florida lawyer who takes over a tort case have to share the fee with the client's discharged first attorney?

Plain-English summary

The inquiring attorney was consulted about a tort claim by a person then represented by another attorney whose services were considered unsatisfactory. The inquirer agreed to take the case only if the client discharged the first attorney, which she did. When the inquirer asked the first attorney for the file, the first attorney refused unless the inquirer agreed to retain for him "40% of 40% of any settlement." The inquirer refused and handled the case without the first attorney's file. The first attorney then requested one third of the inquirer's fee and, when refused, asked for a statement of his time and services.

The committee was asked about the inquirer's ethical responsibility to the first attorney and answered: "none," assuming the fee arrangement between the inquirer and the client contained no provision for paying the first attorney any part of the fee. The committee expressly declined to opine on the legal rights and responsibilities between the client and the first attorney.

Currency note

This opinion was issued in 1977, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.5 before relying on any specific requirement mentioned here.

Common questions

Q: Must a successor lawyer split the fee with the client's discharged first attorney?

A: The opinion concluded no, there is no ethical duty to divide the fee, as long as the fee arrangement with the client contained no provision for such a division.

Q: Did the first attorney's refusal to hand over the file change the answer?

A: No. The opinion concluded the inquirer's ethical responsibility to the first attorney was "none" on these facts; it did not condition the answer on the file dispute.

Q: Did the committee address the client's own obligations to the first attorney?

A: No. The committee expressly declined to opine on the legal rights and responsibilities between the client and the first attorney.

Background and rules framework

The opinion addressed division of a fee between successive lawyers, the subject of Model Rule 1.5 (fees, including division of fees between lawyers; current Florida Rule 4-1.5). The committee treated the question as turning on the terms of the inquirer's own fee agreement with the client, and distinguished the separate legal question of what the client might owe the discharged attorney, which it did not decide.

Citations and references

Rules of Professional Conduct:

• The opinion cited no Disciplinary Rule by number; it addressed fee division between successive counsel (current Florida Rule 4-1.5; Model Rule 1.5).

See also

• ABA Formal Op. 487: Fee Split With Prior Counsel
• FL Bar Ethics Op. 02-8: Referral Fees, Ancillary Business

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-29/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-29-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-29
April 26, 1977
Advisory ethics opinions are not binding.
An attorney representing a client in a tort action has no ethical duty to divide the fee with the client's first attorney after his discharge, unless the attorney's fee arrangement with the client contained a provision for such a division with the first attorney.
Vice Chairman Taylor stated the opinion of the committee:
An inquiring attorney states that he was consulted with reference to a tort claim by a person then represented by another attorney whose services were considered unsatisfactory. The inquirer advised the client that he would undertake to represent her only if she discharged her first attorney, which she did. Thereupon the inquirer requested the first attorney to send him his file on the matter. The first attorney refused unless the second attorney would agree to retain for him "40% of 40% of any settlement." The inquirer refused and handled the case without the benefit of any information from the first attorney's files.
The first attorney has requested one third of the inquirer's fee and when this was refused asked for a statement of time expended and services performed by him for the client.
We are requested to render an opinion as to the ethical responsibility of the inquirer to the first attorney. The answer is: "none," assuming, of course, that the fee arrangement between the inquirer and the client contained no provision for payment to the first attorney of any part of the fee agreed upon between them.
We express no opinion as to the legal rights and responsibilities between the client and the first attorney.