If I pay a contract or temporary lawyer to help on a case, must I tell the client and get consent?

Plain-English summary

Lawyer Jones, a sole practitioner, hired Lawyer Brown, who kept a separate independent practice, to work on specific cases. Jones considered three payment arrangements: paying Brown ten percent of the fee collected; paying Brown $100 an hour and billing the client for those hours (without showing Brown's involvement); or paying Brown $100 an hour while billing the client at $150 an hour (again without showing Brown's involvement). The questions were whether Jones had to tell the client that another lawyer was being paid a percentage of the fee, or being paid hourly, for the work.

The opinion concluded that whether disclosure is required turns on two factors: whether the hiring lawyer directly supervises the independent lawyer, and whether the independent lawyer is paid on a basis other than dividing the actual fee. It set out Rule 1.2(c) (no delegation outside the firm without client consent) and Rule 1.5(f) (no fee division with an outside lawyer absent the client's signed written consent disclosing the division, its basis, and the responsibility assumed), with Rule 1.5(h) requiring the total fee to be reasonable. Drawing on In re Marriage of Zeimann and ABA Formal Opinion No. 88-356, the opinion treated reasonable compensation paid to a temporary lawyer, not charged to the client as a disbursement, as outside the fee-division rule, while a direct division of the actual fee requires consent.

Applying these principles, the opinion concluded that if Jones pays Brown hourly, the arrangement need not be disclosed where Brown works under Jones's close supervision and the payment is not shown as a disbursement on the client's bill; that if Jones delegates to Brown without close supervision, the hourly payment must be disclosed and consent obtained; and that if Jones pays Brown a percentage of the fee collected, the client's written consent is required. The opinion also noted, as outside its scope, that conflicts and confidentiality issues can arise from the independent lawyer's other clients, and that access to office files should be restricted.

Currency note

This opinion was issued in 1998, 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(e) 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 lawyer disclose paying a contract lawyer an hourly rate?

A: Not always. The opinion concluded that hourly payment need not be disclosed where the contract lawyer works under the hiring lawyer's close supervision and the payment is not billed to the client as a disbursement.

Q: When does paying a contract lawyer require client consent?

A: The opinion concluded that consent is required where work is delegated without close supervision, or where the contract lawyer is paid a percentage of the actual fee, which is a fee division under Rule 1.5(f).

Q: Why does a percentage-of-the-fee arrangement trigger Rule 1.5(f)?

A: The opinion concluded that paying a share of the actual fee collected is a division of fees with a lawyer outside the firm, which Rule 1.5(f) permits only with the client's signed written consent disclosing the division, its basis, and the responsibility assumed.

Q: Does the opinion address conflicts from the contract lawyer's own clients?

A: The opinion noted, as outside its scope, that conflicts and confidentiality issues can arise from the independent lawyer's other clients, and suggested inquiry into conflicts and restricting the contract lawyer's access to office files.

Background and rules framework

The opinion interpreted Rule 1.2(c) (delegation outside the firm without client consent), Rule 1.5(f) (division of fees with a lawyer outside the firm; Model Rule 1.5(e)) and Rule 1.5(h) (reasonable total fee), and it relied on ABA Formal Opinion No. 88-356 and In re Marriage of Zeimann in distinguishing reasonable compensation for a temporary lawyer from a division of the client's fee.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5 (fees; division of fees) / Illinois Rule 1.5(f), (h)
• Illinois Rule 1.2(c) / Rule 1.1(c) (delegation outside the firm without client consent)

Cases:

• In re Marriage of Zeimann, 214 Ill.App.3d 988, 574 N.E.2d 767 (1991), compensation of a temporary lawyer not charged to the client

Other opinions cited:

• ABA Formal Opinion No. 88-356 (1988) (temporary lawyers; disclosure and consent)
• ISBA Advisory Opinions Nos. 92-07 and 90-26

See also

• ISBA Ethics Op. 16-04: Fee Division and Conflict-of-Interest Rules
• ISBA Ethics Op. 96-08: Specialization and Farming Out Work
• ISBA Ethics Op. 21-04: Paying a Referral Fee to an Out-of-State Lawyer

Source

• Landing page: https://www.isba.org/ethics/opinions/9802