When can a lawyer share a fee with another lawyer outside the firm, and does advancing litigation costs or appearing as co-counsel count as 'responsibility assumed'?
Ohio BPC Opinion 88-026: Fee Division and "Responsibility Assumed"
Short answer: The Board concluded that under former DR 2-107(A)(2), a fee division between lawyers outside the same firm must be proportional to the services performed and responsibility assumed, and that "responsibility assumed" means actually participating in the case by using one's legal skills and independent judgment, decided case by case.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct'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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
The Ohio Board of Professional Conduct withdrew this opinion on December 5, 1997, following the amendment of DR 2-107 (effective August 1, 1990). It is no longer current guidance and is indexed here for historical research only. The opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.5(e) on division of fees) before relying on any specific rule mentioned here.
Plain-English summary
A lawyer asked, under DR 2-107(A)(2), whether various activities amounted to "responsibility assumed" for purposes of dividing a fee with a lawyer outside the firm: advancing or guaranteeing litigation costs, appearing as co-counsel or "of counsel," entering an appearance combined with advancing expenses, and entering an appearance combined with monitoring the litigation.
The Board quoted DR 2-107(A)(2), which permits a fee division with a lawyer who is not a partner or associate only if the division is made in proportion to the services performed and responsibility assumed by each. It declined to define "responsibility assumed" or to rule on each scenario, stating that fee-sharing questions must be decided case by case on the totality of the circumstances. The governing test it identified was whether the lawyer actually participated in the case by using his or her legal skills and independent judgment; a lawyer who actually participates is entitled to a division in proportion to the services performed and responsibility assumed.
Common questions
Q: When can a lawyer share a fee with another lawyer outside the firm?
A: When the division is proportional to the services performed and responsibility assumed by each, under former DR 2-107(A)(2).
Q: Does advancing litigation costs or appearing as co-counsel count as "responsibility assumed"?
A: The Board declined to answer each scenario in the abstract, saying it must be decided case by case. The controlling factor it identified was whether the lawyer actually participated in the case using his or her legal skills and independent judgment.
Background and rules framework
The opinion applies former DR 2-107(A)(2) of the Ohio Code of Professional Responsibility (division of fees between lawyers not in the same firm). The current parallel on fee division is Ohio Prof. Cond. R. 1.5(e) and Model Rule 1.5(e).
Citations and references
Rules of Professional Conduct:
- Former DR 2-107(A)(2), Ohio Code of Professional Responsibility
Cases:
- Palmer v. Breyfogle, 217 Kan. 128, 535 P.2d 955 (1975), participation through legal skill and judgment
Other opinions cited:
- ABA Comm. on Ethics and Professional Responsibility, Informal Op. 848 (1965): case-by-case approach to fee division
See also
- Ohio BPC Opinion 1988-024: Withdrawal, Former-Client Conflicts, and Fees Earned Before Withdrawal
- Ohio BPC Opinion 1988-012: Free Consultation Offered Through a Funeral Director's Package
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-026.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-26
Issued December 16, 1988
[Withdrawn by Board on Dec. 5, 1997 due to amended DR 2-107, eff. Aug. 1, 1990]
SYLLABUS: Under DR 2-107(A)(2), a division of fees among lawyers shall be made in proportion to the services performed and responsibilities assumed by each. Assuming responsibility under the rule signifies that a lawyer must actually be involved in the case. A lawyer who uses his or her legal judgment, expertise or experience on behalf of the client would be "assuming responsibility" under the Rule.
OPINION: We have before us your request for an informal advisory opinion regarding DR 2-107(A)(2). Specifically, you inquire whether advancing or guaranteeing the costs of litigation would constitute "responsibility assumed" under the Rule. You also ask whether entering an appearance as co-counsel or "of counsel" would entitle that lawyer to part of the legal fees. In addition, you ask whether entering an appearance and advancing or guaranteeing expenses would be considered assuming responsibility as contemplated by the Rule. Finally your last questions are whether, entering an appearance and monitoring the litigation would be assuming responsibility and whether monitoring and advancing litigation expenses is assuming responsibility.
The text of DR 2-107(A)(2) is 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, ...[t]he division is made in proportion to the services performed and responsibility assumed by each.
Because of the countless number of cases involving fee sharing, we do not herein specifically define what constitutes "responsibility assumed." Instead, each fee sharing decision should be made on a case-by-case basis. ABA Committee on Ethics and Professional Responsibility, Informal Op. 848 (1965).
In regard to your specific questions, we are not going to address each one by stating which constitutes "responsibility assumed." Again, each situation must be determined individually, taking into account the totality of the circumstances surrounding the division of fees. However, any determination of what constitutes "responsibility assumed" under DR 2-107(A)(2) should depend upon whether the lawyer actually participated in the case by using his or her legal skills and independent judgment. See, e.g., Palmer v. Breyfogle, 217 Kan. 128, 535 P.2d 955, 967 (1975). Therefore, a lawyer who actually participates in the case would be entitled to a division of the fees in proportion to the services performed and responsibility assumed.
In conclusion, it is our opinion and you are so advised that a division of fees between lawyers must be based upon the services performed and responsibility assumed by each. To be entitled to part of the fee, each lawyer must participate in the case by using his or her own judgment, expertise or experience on behalf of the client.
This is an informal non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.