Can a law firm hire outside solo attorneys hourly to cover court calls and depositions, and must it tell the client?

Plain-English summary

A personal-injury firm wanted to hire sole practitioners on an hourly basis to occasionally cover court calls and depositions, with no other affiliation (not partners, associates, or employees). The inquiry asked whether the firm must tell clients it is retaining independent attorneys, whether the hiring creates an "of counsel" relationship, and whether such hiring is permitted.

The opinion concluded that a firm may hire outside, unaffiliated counsel to handle matters in a client's case, but that Rule 1.1(c) requires the firm to obtain the client's consent to delegating work to an attorney outside the firm, Rule 1.2(a) requires consultation about the means of pursuing the client's objectives, and Rule 1.4 requires keeping the client reasonably informed, which can be done at the outset (by retainer or direct communication) by explaining the extent and scope of any delegation.

The opinion concluded that written consent is not required except under Rule 1.5(f), which governs fee divisions, and that specific hourly payments to a covering attorney for handling a motion call or deposition under the original attorney's supervision do not fall within Rule 1.5(f)'s fee-splitting provisions, citing In re Marriage of Ziemann. It concluded that both the retaining and the covering attorney are equally bound by the Rules (citing ABA Formal Opinion 88-356 on temporary lawyers), and that whether an "of counsel" relationship exists is a question of nomenclature generally requiring a greater relationship than occasional hourly hiring. Finally, it concluded that an essential missing fact was the cost to the client: if the delegation increases the client's fees rather than being absorbed in the retaining attorney's fee, Rule 1.5(f) might apply and written consent could be required, so further facts would be needed for a formal opinion.

Currency note

This opinion was issued in 1993, before Illinois adopted the 2010 Illinois Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in January 2010 as generally consistent with the 2010 Rules (referring to Rules 1.2(a) and (e), 1.4, and 1.5(e)), while noting the specific standards referenced may differ from the 2010 Rules. 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Must a firm tell the client when it brings in an outside lawyer to cover a hearing?

A: The opinion concluded the firm must obtain the client's informed consent to the delegation under Rules 1.1(c) and 1.4, which can be done at the outset by explaining the scope of any such delegation.

Q: Is paying the covering lawyer by the hour a fee split requiring written consent?

A: The opinion concluded that hourly payment for covering routine matters under supervision is not a division of fees under Rule 1.5(f), so written consent is not required on that basis.

Q: When would written consent be required?

A: The opinion concluded that if the delegation increases the client's fees rather than being absorbed in the retaining attorney's fee, Rule 1.5(f) might apply and written consent could be required.

Background and rules framework

The opinion interpreted Rule 1.1(c) (consent to delegation), Rule 1.2(a) (consultation on means), Rule 1.4 (keeping the client informed), and Rule 1.5(f) (written consent for a division of fees) (Model Rules 1.1, 1.2, 1.4, 1.5).

Citations and references

Rules of Professional Conduct:

• Model Rule 1.1 (competence; delegation) / Illinois Rule 1.1(c)
• Model Rule 1.2 (scope) / Illinois Rule 1.2(a); Model Rule 1.4 (communication) / Illinois Rule 1.4
• Model Rule 1.5 (fees; division of fees) / Illinois Rule 1.5(f)

Cases:

• In re Marriage of Ziemann, 214 Ill. App. 3d 988, 574 N.E.2d 622 (1991), hourly coverage pay not fee-splitting

Other opinions cited:

• ABA Formal Opinions 88-356 (temporary lawyers) and 90-357 ("of counsel"); ISBA Opinions Nos. 817 and 776

See also

• ISBA Ethics Op. 98-02: Division of Fees and Compensation of a Contractual Lawyer
• ISBA Ethics Op. 16-04: Fee Division and Conflict-of-Interest Rules

Source

• Landing page: https://www.isba.org/ethics/opinions/9207