Can a Mississippi lawyer recommend that a client contract with a lay medical-review company that takes a contingent fee in a malpractice case?

Plain-English summary

The Committee addressed an attorney who asked whether he could recommend that a client in a medical malpractice case contract with Health Care Auditors, Inc., a company holding itself out as consultive experts to the medical-legal community. The company offered free initial medical review and to front the cost of paying a doctor for medical testimony, in return for a contingency fee contract made directly with the plaintiff. The doctor's fee was guaranteed and not contingent, while the company's fee was a 15% contingency with the client. The company did not split fees with the attorney, did not practice law, and did not control the case.

The opinion concluded that Opinion No. 91 (rendered March 23, 1984) applied, and that ABA Informal Opinion No. 1375 (August 10, 1976) would still apply under the Mississippi Rules of Professional Conduct. It reasoned that nothing in those rules prohibits a lay person from being paid on a contingent fee basis, as long as the lay person does not engage in the unauthorized practice of law or share legal fees with the attorney, and the contingent fee is not payable for the testimony of the lay person.

The opinion noted that the bar associations of Maine, Missouri, Alabama, Georgia, Indiana, Michigan, and the District of Columbia had all approved this type of arrangement, and concluded that using Health Care Auditors, Inc. under the circumstances described did not violate the Mississippi Rules of Professional Conduct.

Currency note

This opinion was issued in 1991, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but 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 Treat this page as historical context, not current guidance.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: Can a lawyer recommend that a client hire a lay medical-review company that takes a contingent fee?

A: The opinion concluded yes, so long as the company does not engage in the unauthorized practice of law, does not share legal fees with the attorney, and the contingent fee is not payable for a lay person's testimony.

Q: Was it a problem that the company fronted the cost of the testifying doctor?

A: Per the opinion, no, on the facts described. The doctor's fee was guaranteed and not contingent, and the company's contingent fee was with the client; the opinion stressed that a contingent fee must not be payable for a lay person's testimony.

Q: Did the company's contingent fee count as improper fee splitting with the lawyer?

A: The opinion concluded it did not, because the company did not split fees with the attorney, did not practice law, and did not control the case.

Background and rules framework

The opinion applies the prohibitions on the unauthorized practice of law and on sharing legal fees with non-lawyers, which correspond to Model Rules 5.5 and 5.4. The opinion describes these prohibitions rather than citing them by number, and relies on Mississippi Bar Opinion No. 91 (1984) and ABA Informal Opinion No. 1375 (1976).

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 5.5 (unauthorized practice of law), applied by description (cf. Model Rule 5.5)
• MRPC 5.4 (sharing legal fees with non-lawyers), applied by description (cf. Model Rule 5.4)

Other opinions cited:

• Mississippi Bar Opinion No. 91 (Mar. 23, 1984).
• ABA Informal Opinion No. 1375 (Aug. 10, 1976): lay person paid on a contingent fee basis.

See also

• MS Bar Ethics Op. 209: Fee-Sharing With Referral Service
• MS Bar Ethics Op. 221: Reporting Out-of-State UPL
• MS Bar Ethics Op. 202: Stake in a Client's Product

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/190/
• Original PDF: https://www.msbar.org/media/1451/35a_et_op_190.pdf

Original opinion text

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

ETHICS OPINION NO. 190

OF THE MISSISSIPPI BAR

RENDERED September 20, 1991

FEES AND UNAUTHORIZED PRACTICE OF LAW: An attorney may recommend that a client contract with a lay organization who is to be paid on a contingent fee basis.

The Ethics Committee of The Mississippi Bar has been asked to render an informal advisory opinion on the following facts:

An attorney wishes to know whether he may recommend that a client in a medical malpractice case contract with Health Care Auditors, Inc., a company which holds itself out as "consultive experts to the medical-legal community". In essence, this organization offers to provide free initial medical review and to front the cost paid to a doctor for medical testimony in return for a contingency fee contract made directly with the plaintiff. The fee is paid to the doctor, who would be the one to testify, which fee is guaranteed and not contingent. The fee to Health Care Auditors, Inc. is a contingency fee of 15% with the client. Health Care Auditors, Inc. do not split fees with the attorney, do not practice law and control the case.

The Committee is of the opinion that Ethics Opinion No. 91 of The Mississippi Bar rendered March 23, 1984, would be applicable to this request. It should be reiterated that American Bar Association Informal Opinion No. 1375 dated August 10, 1976 would still be applicable under The Mississippi Rules of Professional Conduct, since nothing therein prohibits a lay person on a contingent fee basis as long as the lay person does not engage in the unauthorized practice of law or share legal fees with the attorney and the contingent fee is not payable for the testimony of the lay person. The Committee also notes that the Bar Associations of Maine, Missouri, Alabama, Georgia, Indiana, Michigan, and the District of Columbia have all approved this type arrangement. This Committee concludes that the use of Health Care Auditors, Inc. under the circumstances described, does not violate the Mississippi Rules of Professional Conduct.