Is a Nebraska forwarding lawyer responsible for another lawyer's unpaid fee, and may the forwarding lawyer sue the client to collect it?

Plain-English summary

At a client's request, a Nebraska lawyer contacted another lawyer about registering a foreign judgment. The second lawyer was not paid and later asked the Nebraska lawyer to sue the client for the fee.

The committee treated the forwarding lawyer's financial liability as a question of agency law rather than ethics. Without an agreement to assume responsibility, the Nebraska lawyer did not personally owe the other lawyer's fee.

The opinion nevertheless said the forwarding lawyer should tell the other lawyer about any doubts concerning the client's ability to pay and should use reasonable efforts to help obtain payment.

The Nebraska lawyer could not bring the collection suit against the client. Former DR 5-101(B) barred contemplated litigation when the lawyer or a firm lawyer ought to be a witness, and the committee also relied on Canon 9's appearance-of-impropriety principle.

Currency note

This opinion was issued in 1979, before Nebraska's adoption of the 2005 Rules of Professional Conduct. Subsequent fee, referral, forwarding-lawyer, lawyer-as-witness, client-conflict, and agency law or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.

Common questions

Q: Did contacting the other lawyer make the forwarding lawyer liable for the fee?

A: No, unless the forwarding lawyer had agreed to assume that responsibility.

Q: What if the forwarding lawyer doubted the client's ability to pay?

A: The opinion said the forwarding lawyer should inform the other lawyer of those doubts.

Q: Could the forwarding lawyer sue the client for the other lawyer?

A: No. The forwarding lawyer might be a witness in that suit, and the committee also identified an appearance problem.

Background and rules framework

ABA Formal Opinion 63 and the cited ethics treatise addressed responsibility between forwarding and receiving lawyers. Former DR 5-101(B) addressed a lawyer's participation in litigation when the lawyer ought to testify.

Citations and references

Former Nebraska Code of Professional Responsibility:

• Canon 5, Canon 9, and DR 5-101(B)

Other opinions cited:

• ABA Formal Opinion 63

Other sources cited:

• Wise, Legal Ethics 124

See also

• Virginia Ethics Op. 1160: Forwarding-fee responsibility
• Nebraska Ethics Op. 95-1: Settlement authority and fee clause
• Virginia Ethics Op. 960: Firm fee collection and lawyer witness

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 79-7

Original opinion text

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

Nebraska Ethics Advisory Opinion for Lawyers No. 79-7

WHERE A NEBRASKA ATTORNEY, AT THE REQUEST OF AND ON BEHALF OF HIS CLIENT, CONTACTS ANOTHER ATTORNEY RELATIVE TO THE REGISTRATION OF A FOREIGN JUDGMENT, THE NEBRASKA ATTORNEY HAS NO PERSONAL RESPONSIBILITY FOR PAYMENT OF THE OTHER ATTORNEY'S FEES ABSENT AN AGREEMENT TO ASSUME SUCH RESPONSIBILITY.

IT WOULD NOT BE ETHICALLY PROPER FOR THE NEBRASKA ATTORNEY TO SUE HIS CLIENT ON BEHALF OF THE OTHER ATTORNEY TO COLLECT THE LATTER'S UNPAID LEGAL FEE.

FACTS

The Advisory Committee has been asked to give its opinion relative to the following two questions:

1. When an attorney in Nebraska, at the request of and on behalf of his client, contacts another attorney relative to the registration of a foreign judgment, what responsibility does he incur as far as payment of the other attorney's fees?

2. If the attorney so contacted has not been paid and subsequently requests the Nebraska attorney to bring suit against the client for the collection of his fees, is that a breach of the Code of Professional Responsibility to pursue that collection on behalf of the other attorney?

DISCUSSION

With reference to the first question, Formal Opinion 63 of the American Bar Association Committee on Professional Ethics states as follows:

"The question of whether an attorney is financially liable for legal services rendered to his client by another attorney is a question of agency law rather than one of ethics: However, candor and fairness requires that if an attorney has any doubts concerning his client's ability to pay for legal services, he should so inform the attorney to whom he refers the case."

Wise on Legal Ethics states at page 124:

"A lawyer who forwards a case is under no obligation to pay the fee if the client does not. The forwarder should use every reasonable effort to obtain payment for the forwardee, however."

With reference to the second question, DR 5-101(b) under Canon 5 of the Code of Professional Responsibility provides:

"A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness..."

CONCLUSIONS

The Advisory Committee concludes, in answer to the first question, that where an attorney in Nebraska, at the request of and on behalf of his client contacts another attorney relative to the registration of a foreign judgment, that the attorney in Nebraska has no personal responsibility for payment of the other attorney fees in the absence of an agreement to assume such responsibility. He should, however, inform the other attorney if he has any doubts concerning his client's ability to pay for the services of the other attorney.

The opinion of The Advisory Committee in response to the second question posed is that obviously in the event of suit against the client for the collection of the other attorney's fee, the Nebraska attorney might be called upon to be a witness. This provision, together with Canon 9 which provides that a lawyer should avoid even an appearance of professional impropriety, dictate a conclusion that the Nebraska attorney should not bring suit against the client for the collection of the other attorney's fee.

Nebraska Ethics Advisory Opinion for Lawyers No. 79-7