Can a lawyer retain a non-lawyer medical consultant on a contingent fee to evaluate a case and find expert witnesses, if the consultant will not testify?

Plain-English summary

A client wanted to retain a non-lawyer medical consultant to evaluate the medical aspects of his case, assist the attorney in discovery and trial, and help find medical expert witnesses; the consultant would not testify. The consultant would be paid a contingent fee that is a percentage of the recovery or the client's share, separate and distinct from the attorney's own contingent fee, and the attorney was authorized to pay it out of settlement or judgment funds. The client could not afford a non-contingent consultant.

The opinion applies Rule 5.4(a), which bars a lawyer from sharing legal fees with a non-lawyer, and concludes it does not apply here because the consultant's fees are separate and distinct from, and are not paid from, the attorney's fees. It notes that witness-fee rules do not apply because the consultant will not testify, and that no other Mississippi rule specifically addresses the point.

The opinion looks to outside authority: ABA Informal Opinion 1375, which found such an arrangement permissible so long as it does not violate the fee-sharing rule and the lay person is not engaged in the unauthorized practice of law, while cautioning the attorney to retain complete control of the case; and opinions of the Maine and Missouri bars reaching the same result. The opinion concludes the use of a medical consultant under these circumstances is permissible so long as the expense is calculated at a flat rate and not as a percentage of the attorney's fee.

In practice

Under this opinion, a lawyer may engage a non-testifying medical consultant whose compensation is contingent, provided the consultant's fee stands apart from the lawyer's fee and is not a percentage of it, so Rule 5.4(a)'s bar on sharing legal fees with a non-lawyer is not implicated. The opinion conditions the arrangement on the consultant not serving as a witness and, drawing on ABA Informal Opinion 1375, on the lawyer keeping complete control of the case and the consultant not engaging in the unauthorized practice of law.

Common questions

Q: Can a lawyer pay a medical consultant a contingent fee?

A: Per this opinion, yes, where the consultant's fee is separate and distinct from the attorney's fee and is not a percentage of it, so Rule 5.4(a) is not violated.

Q: Can that consultant also testify as an expert?

A: No. The opinion conditions the arrangement on the consultant not serving as a witness.

Q: What keeps this from being improper fee-sharing with a non-lawyer?

A: The opinion concludes Rule 5.4(a) is not triggered because the consultant's fee is not paid from, and is not a percentage of, the attorney's fee; it must be a flat-rate expense in that sense.

Q: Does the lawyer have any added responsibility in such an arrangement?

A: The opinion adopts ABA Informal Opinion 1375's caution that the lawyer must retain complete control of the case, having ultimate responsibility for the outcome.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 5.4(a) (professional independence; no sharing of legal fees with a non-lawyer, the analog of Model Rule 5.4(a)). Finding no other on-point Mississippi rule, it relies on ABA Informal Opinion 1375 and the cited Maine and Missouri bar opinions.

Citations and references

Rules of Professional Conduct:

• Model Rule 5.4(a) / Mississippi Rule 5.4(a): a lawyer shall not share legal fees with a non-lawyer.

Other opinions cited:

• ABA Informal Opinion 1375 (Aug. 10, 1976): a contingent arrangement with a lay consultant is permissible if it does not violate the fee-sharing rule and the lay person does not engage in the unauthorized practice of law; the lawyer must retain control.
• Maine State Bar Opinion No. 67 (Aug. 3, 1978): a contingent fee arrangement with a medical consultant is permissible.
• Missouri Bar Informal Opinion 16 (Nov. 9, 1978): same conclusion.

See also

• MS Bar Ethics Op. 172: Sharing Office Space With Non-Lawyers
• MS Bar Ethics Op. 237: Non-Lawyer Interpreters, 1-900 Fees, Advertising
• MS Bar Ethics Op. 92: Contingent Fee in a Structured Settlement

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/91/
• Original PDF: https://www.msbar.org/media/1097/et_op_91-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 91

OF THE MISSISSIPPI BAR

RENDERED March 23, 1984

AMENDED April 06, 2013

EXPERT FEES - An attorney may use the services of a medical consultant who is paid on a contingent fee basis; however, the consultant may not serve as a witness.

The situation under consideration is as follows:

A client wishes to retain a non-lawyer medical consultant to evaluate the medical aspects of his case, assist the attorney during discovery and trial and help find appropriate medical expert witnesses. The consultant will not testify. The medical consultant would be paid a contingent fee which would be a percentage of either the total recovery or the client's share of settlement or judgment. The contingent fee with the medical consultant is separate and distinct from the contingent fee charged by the attorney for his legal services. The attorney has been authorized to pay the consultant's contingent fee out of funds received through settlement or judgment. The client cannot afford to hire a medical consultant on a non-contingent fee basis.

Rule 5.4(a) of the Mississippi Rules of Professional Conduct ("MRPC") prohibits a lawyer from sharing legal fees with a non-lawyer, but it would not be applicable here since the medical consultant's fees are separate and distinct from the attorney's fees and are not paid from attorney's fees. Witness fees are statutory and expert witness fees are a matter of reasonable cost and expense or, if court appointed, a matter for the court to determine under the Mississippi Rules of Evidence, none of which are applicable here because the medical consultant will not testify in this case. There are no other Mississippi Rules of Professional Conduct that specifically deal with this point.

This issue was addressed by the American Bar Association in Informal Opinion 1375 dated August 10, 1976. In that opinion the ABA Committee on Ethics and Professional Responsibility concluded that such an arrangement was not prohibited as long as the arrangement did not violate the Rule referred to above and the lay person was not engaged in the unauthorized practice of law. However, the opinion cautioned the attorney to retain complete control of the case because he had ultimate responsibility for the outcome.

This issue has also been considered by the Maine State Bar in Opinion No. 67 issued on August 3, 1978, and the Missouri Bar in Informal Opinion 16 issued on November 9, 1978. Both opinions concluded that a contingent fee arrangement with a medical consultant is permissible.

The use of a medical consultant under the circumstances described is permissible so long as the expense is calculated at flat rate and not a percentage of the attorney's fee.