Can a lawyer take a medical malpractice case from a consultant who demands a contingent consultant's fee as the price of bringing the case, and can the two contingent fees together exceed the statutory cap?
NY State Bar Ethics Opinion 698: A medical consultant's contingent fee as the price of a case
Short answer: The opinion concluded a lawyer may not accept a medical malpractice case conditioned on agreeing to the consultant's contingent fee, and that the consultant's and lawyer's contingent fees combined may be excessive, particularly where the consultant performs work the lawyer is obligated to do to earn the fee.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
A "medical consultant" (holding both M.D. and J.D. degrees) offered to bring a lawyer a potential medical malpractice plaintiff, on the condition that the lawyer agree to the consultant charging the client a separate contingent consultant's fee (customarily 5% to 10% of the award) on top of the statutory attorney's fee. The consultant would help evaluate the case, find and prepare expert witnesses, and prepare for cross-examination; the lawyer's firm ordinarily used a different consultant paid hourly at less cost. The lawyer asked whether the two-contract arrangement was ethical, whether it would diminish the attorney's fee, and whether the consultant's fee had any limit.
The committee held a lawyer may not accept a prospective client as a "package deal" requiring agreement to hire a particular consultant before the lawyer can evaluate the matter and decide what consultant, if any, to retain and on what terms. Agreeing to that precondition would violate DR 2-103(B), which bars compensating or giving anything of value to a person to recommend or obtain employment, and implicated DR 5-101(A). Even without a hiring precondition, a consultant with strong influence over the selection of counsel raises the danger of impermissibly directing the lawyer's professional judgment under DR 5-107(B); the client must understand that counsel, not the consultant, holds unrestricted authority over professional judgments, and must be told the fee arrangements, including the availability of other consultants at lower cost (DR 2-106(D)).
On the size of the fees, the committee drew on N.Y. State 572 (1985), which found that a medicolegal consultant's contingent fee is not impermissible fee-splitting (the consultant does not share the lawyer's fee), but that a lawyer recommending such an arrangement may have to reduce his own fee to avoid a clearly excessive total fee under DR 2-106(A), especially where the consultant performs work the lawyer is professionally obligated to do, such as selecting and preparing experts. Absent special circumstances, it would be improper to shift such lawyer-work to a consultant at added cost unless the client's total contingent obligation stayed within the Judiciary Law's statutory maximum. The committee added, citing N.Y. State 668 (1994), that a consultant role must not be a pretext to avoid the DR 7-109(C) bar on contingent witness fees.
Currency note
This opinion was issued in 1998, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 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: Can a lawyer take a case on the condition of agreeing to the consultant's contingent fee?
A: The opinion concluded no. Accepting a client as a package deal conditioned on hiring a particular consultant violates DR 2-103(B)'s bar on giving value to obtain employment, and implicates DR 5-101(A).
Q: Can a consultant's contingent fee and the lawyer's together exceed the statutory cap?
A: The opinion said the combined fees may be excessive under DR 2-106(A), and that absent special circumstances the lawyer should not shift lawyer-work to a consultant at added cost unless the client's total stays within the statutory maximum.
Q: Is a contingent consultant's fee fee-splitting?
A: The opinion said no, following N.Y. State 572, because the consultant does not share the lawyer's fee; the concern is instead the reasonableness of the total fee and improper influence over the lawyer's judgment.
Background and rules framework
The opinion interpreted New York's former Code of Professional Responsibility: DR 2-103(B) (giving value to obtain employment), DR 2-106(A) and (D) (excessive fees and disclosure of fee arrangements), DR 5-101(A) (personal-interest conflicts), DR 5-107(B) (third-party interference with judgment), and DR 7-109(C)(3) (reasonable expert fees). The Model Rule analogues are Rule 1.5 (fees), Rule 5.4 (professional independence; fee-sharing), and Rule 7.2 (payments for recommending a lawyer's services). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.
Citations and references
Rules of Professional Conduct:
- MR 1.5 (fees; excessive fees)
- MR 5.4 (professional independence; sharing fees)
- MR 7.2 (payments for recommendations)
- NY DR 2-103(B); DR 2-106(A), (D); DR 5-101(A); DR 5-107(B); DR 7-109(C)(3)
Other opinions cited:
- N.Y. State 572 (1985): contingent fee for a medicolegal consulting service and the excessive-fee concern
- N.Y. State 668 (1994): consultant role not a pretext to avoid the contingent-witness-fee bar
See also
- NY State Bar Op. 697: A hybrid hourly-plus-contingent fee
- NY State Bar Op. 705: Taking cases referred by a non-attorney tax reduction company
Source
- Landing page: https://nysba.org/opinion-698/