Can a lawyer who refers a case and does no further work still collect a share of the contingent fee?

Plain-English summary

Bar Counsel asked whether Maine Bar Rule 3.3(d) is violated by this arrangement: Attorney A is contacted on a personal injury matter, decides not to handle it, and refers it to Law Firm B. After notice to and consent from the client under Rule 3.3(d)(1), A and B agree with the client that A receives one-ninth of any recovery and B two-ninths. A has no responsibility for the matter and no involvement other than being kept apprised by B.

The Commission emphasized that Maine Bar Rule 3.3(d) differs significantly from its Model Code and Model Rules counterparts. The Maine rule bars dividing a fee with a lawyer outside the firm unless the client consents after full disclosure to the other lawyer and the terms of the division, and the total fee does not exceed reasonable compensation. Unlike Model Code DR 2-107(A) and Model Rule 1.5(e), the Maine rule omits any requirement that the division be made in proportion to services performed and responsibility assumed (or that each lawyer assume joint responsibility).

The Commission explained that although the Reporter's Notes did not flag the difference, it arose because the Supreme Judicial Court modified the rule after it was presented in substantially unchanged form, so the Commission concluded the modification was intentional and designed to permit exactly the arrangement presented. While it acknowledged the argument that such an arrangement could produce an inherently unreasonable fee, it concluded the arrangement does not per se violate the rules; as long as the client is fully informed and consents, there is no prohibition. It noted the Maine rule is not unique, with at least a dozen other jurisdictions permitting similar arrangements, and that its role was only to interpret the rule as adopted, which it found unambiguous.

Currency note

This opinion was issued in 1990, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Could a Maine lawyer collect a referral fee without doing any of the work?

A: The opinion concluded yes. Maine's rule omitted the "proportion to services and responsibility" requirement, so a pure referral split was permitted if the client consented after full disclosure and the total fee was reasonable.

Q: How did Maine's fee-division rule differ from the Model Code and Model Rules?

A: The opinion explained that the Model Code (DR 2-107(A)) and Model Rule 1.5(e) require the division to track services performed and responsibility assumed (or joint responsibility), while Maine's rule deliberately dropped that requirement.

Q: Why did the Commission treat the difference as intentional?

A: The opinion concluded the Supreme Judicial Court modified the rule after it was presented in unchanged form, so the deviation was a deliberate choice to permit the arrangement, not an oversight.

Q: Did the Commission decide whether such a fee is "reasonable"?

A: The opinion noted the argument that the arrangement could yield an inherently unreasonable fee but held the arrangement is not prohibited per se, provided the rule's consent and reasonable-total-fee conditions are met.

Background and rules framework

The opinion interprets Maine Bar Rule 3.3(d), which permits dividing a fee with a lawyer outside the firm if the client consents after full disclosure to the other lawyer and the terms of division and the total fee is reasonable, and contrasts it with Model Code DR 2-107(A) and ABA Model Rule 1.5(e) (division of fees among lawyers not in the same firm), both of which condition the split on services performed and responsibility assumed.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5(e) (division of fees between lawyers not in the same firm); former Model Code DR 2-107(A)
• Maine Bar Rule 3.3(d), 3.3(d)(1), 3.3(d)(2)

See also

• Maine Ethics Op. 113: Lawyer-Witness Sharing a Contingent Fee
• Maine Ethics Op. 123: Participation in a Seminar as Public Communication

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91272

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: February 7, 1990

Question Presented

Bar Counsel, pursuant to Rule 11(c)(1), has requested an advisory opinion regarding the following question.

Is it a violation of Maine Bar Rule 3.3(d), or any other Bar Rule, for an attorney to engage in the following fee arrangement: Attorney A is contacted by a client to handle a personal injury matter. A decides that he should not handle the matter and refers the case to Law Firm B. After notice to, and obtaining consent from, the client in accordance with Rule 3.3(d)(1), A and B enter into an agreement with the client whereby A is to receive 1/9 of any recovery obtained and B is to receive 2/9. A is to have no responsibility with respect to the matter, and will have no other involvement in the case other than being kept apprised of the matter by B.

Opinion

At the outset it must be acknowledged that Maine Bar Rule 3.3(d), as adopted, differs significantly from its counterpart in the Model Code and the Model Rules. It reads as follows:

A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or office; unless:

(1) The client, after full disclosure, consents to employment of the other lawyer and to the terms for the division of the fees; and

(2) The total fee of the lawyer does not exceed reasonable compensation for all legal services they rendered to the client.

In the Model Code the provision reads as follows:

A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office, unless:

(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.

(2) The division is made in proportion to the services performed and responsibility assumed by each.

(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.

DR 2-107(A)

Under the Model Rules the provision reads:

A division of fee between lawyers who are not in the same firm may be made only if:

(1) The division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;

(2) The client is advised of and does not object to the participation of all lawyers involved; and

(3) The total fee is reasonable.

Rule 1.5(e)

Curiously, despite the apparently significant linguistic deviation of the Maine Rule from its counterparts no mention or explanation is offered in the Reporter's Notes. In fact the Notes appear to utterly ignore the difference and add a comment that is difficult to understand in view of the change. The reason for this curiosity, however, is not due to logical oversight or analytical failure on the part of the Reporter, but rather arose because the Rule was modified by the Supreme Judicial Court after it was presented in substantially unchanged form to the Model Code with the accompanying Notes.[1] In view of this aetiology, this Commission must conclude that the significant modification performed by the Supreme Judicial Court was intentional and designed to permit precisely the fee arrangement that this question presents.

While it may be persuasively argued that an arrangement of the type described results in a fee that is inherently unreasonable, the Committee must conclude that the arrangement per se does not violate the Rules. As long as the client is fully informed and consents to the arrangement, there exists no prohibition. The Maine Rule, while different from the Model Code, is by no means unique. At least a dozen other jurisdictions permit similar arrangements.[2] While the policy behind the Rule is a matter of debate, this Commission is authorized only to interpret the Rule as adopted which is unambiguous: the proposed arrangement is not prohibited provided that the other conditions set forth are satisfied.

[1] See original report of the Select Commission on Professional Responsibility presented to the Supreme Judicial Court in 1979 on file in the State Law Library.

[2] As of the date of this request, the following states appear to deviate from the Model Code in a similar manner: Alabama, California, Connecticut, Illinois, Kansas, Massachusetts, Michigan, Oregon, Pennsylvania, Puerto Rico, Texas and Virginia.