Are lawyers who share an office and cooperate on cases, but are not partners, in the 'same firm' for purposes of the fee-division rules?
Ohio BPC Opinion 91-005: Whether Lawyers in Association Are in the "Same Firm" for Division of Fees
Short answer: The opinion concluded that lawyers who practice in association but not as a partnership are not in the "same firm" under DR 2-107(A), so they must fully comply with the rule's restrictions on dividing fees among lawyers not in the same firm.
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.
Plain-English summary
The Board addressed whether nine attorneys who were not partners, used individual letterhead and no collective name, operated an office collectively, and assisted one another and shared fees by proportion of work were in the "same firm" for purposes of dividing fees under DR 2-107. The opinion set out DR 2-107(A) as amended August 1, 1990, which allowed division of fees by lawyers not in the same firm only with the client's prior consent and if the division is in proportion to services (or, by written agreement, all lawyers assume responsibility), the terms and the lawyers sharing the fee are disclosed in writing, and the total fee is reasonable.
The Board treated the change from the prior "not a partner in or associate of his law firm or law office" language to "not in the same firm" as a distinction without difference, and noted that the substantive change, allowing division by written agreement where all lawyers assume responsibility, tracked ABA Model Rule 1.5(e), though Ohio's rule still required more disclosure and consent. Looking to the Code's Definitions Section, which defined a law firm to include a professional legal corporation or a legal clinic but did not include other practice arrangements, the Board concluded that the described office-sharing arrangement is not a law firm. It therefore concluded that lawyers who practice in association with one another, but not as a partnership, are not in the "same firm" and must fully comply with the DR 2-107(A) restrictions on division of fees.
Currency note
The Board's status list flags this opinion as Withdrawn by Opinion 2016-11 on December 9, 2016. This opinion issued in 1991 under Ohio's former Code of Professional Responsibility (superseded by the Ohio Rules of Professional Conduct effective February 1, 2007). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.
Common questions
Q: Are office-sharing lawyers treated as one firm for fee-splitting?
A: Under this opinion, no. The Board concluded lawyers who practice in association but not as a partnership are not in the "same firm," so DR 2-107(A)'s requirements apply to fees they divide.
Q: What did DR 2-107(A) require for a fee division between lawyers not in the same firm?
A: The opinion set out prior client consent, a division in proportion to services performed (or, by written agreement, all lawyers assuming responsibility), written disclosure of the terms and the lawyers sharing, and a reasonable total fee.
Q: What counted as a "law firm" under the Code?
A: The opinion noted the Definitions Section included a professional legal corporation or a legal clinic, and that because it did not include other practice arrangements, a collection of solo practitioners sharing an office is not a law firm.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility DR 2-107(A) (division of fees among lawyers not in the same firm) and the Code's Definitions Section (meaning of "law firm"). It treats ABA Model Rule 1.5(e) as consistent with the amended rule's substantive change, while noting Ohio required greater client disclosure and consent.
Citations and references
Rules of Professional Conduct:
- ABA Model Rule 1.5(e), division of fees between lawyers not in the same firm (treated as consistent)
Rules of Professional Responsibility (Ohio, former):
- DR 2-107(A), division of fees among lawyers not in the same firm
- Definitions Section, meaning of "law firm"
Other authorities cited:
- C. Wolfram, Modern Legal Ethics 509-510 (1986)
- ABA, Annotated Model Rules of Professional Conduct 49 (1984)
See also
- Ohio BPC Op. 1991-003: Separation Provision Requiring a Departing Associate to Pay a Share of Fees
- Ohio BPC Op. 1988-026: Fee Division Where Responsibility Is Assumed
- Ohio BPC Op. 1990-023: Ethical Guidelines for a Temporary Lawyer Placement Service
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_91-005.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 91-5
Issued February 8, 1991
[Withdrawn- by Opinion 2016-11 on December 9, 2016]
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: Lawyers who practice in association with each other, but not as a partnership, are not considered lawyers in the "same firm" for purposes of division of fees under DR 2-107 (A). Lawyers who practice in association with each other, but not as a partnership, must fully comply with the restrictions on fee splitting contained within DR 2-107 (A).
OPINION: We have before us your request regarding the proper division of fees among lawyers. Your question is whether lawyers who practice in association with each other, but not as a partnership, would be considered lawyers in the "same firm" for purposes of division of fees under DR 2-107. The practice you describe is among nine attorneys who are not partners. The attorneys do not use a collective name. Each attorney uses individual letterhead. The attorneys operate the office collectively. The attorneys cooperate and assist each other in litigation matters and share fees based upon the proportion of work performed by each lawyer. Each client is advised of and introduced to the other attorney who may be assisting in the case.
DR 2-107 of the Code of Professional Responsibility governs the division of fees among lawyers. DR 2-107 (A), as amended August 1, 1990, is set forth below.
(A) Division of fees by lawyers who are not in the same firm may be made only with the prior consent of the client and if all of the following apply: (1) The division is in proportion to the services performed by each lawyer or, if by written agreement with the client, all lawyers assume responsibility for the representation; (2) The terms of the division and the identity of all lawyers sharing in the fee are disclosed in writing to the client; (3) The total fee is reasonable. CPR, DR 2-107 (A).
The amended language of DR 2-107 (A) prohibits, with exceptions, the division of fees by lawyers "not in the same firm." Prior to amendment, DR 2-107 (A) prohibited, with exceptions, a lawyer from dividing a fee with a "lawyer who is not a partner in or associate of his law firm or law office." The Board interprets the language change in this provision to be a distinction without difference.
The substantive change in amended DR 2-107 is the relaxation of the restriction that fees be divided only in proportion to work performed. Amended DR 2-107 allows for division of fees by written agreement with the client, if all lawyers assume responsibility for representation. This substantive change is consistent with ABA Model Rule 1.5 (e). However, DR 2-107 and Model Code DR 2-107 continue to require more disclosure to and consent by the client than does Model Rule 1.5 (e).
The spirit behind the restrictions on fee splitting among lawyers not in the same firm is to avoid brokering in clients. C. Wolfram, Modern Legal Ethics 509-510 (1986). However, it is also recognized that a division of fees can serve the client by facilitating the association of lawyers where neither lawyer alone could serve the client as well. ABA, Annotated Model Rules of Professional Conduct 49 (1984). Thus, the restrictions on division of fees among lawyers not in the same firm assist in both protecting and serving the client.
The Definitions Section of the Code of Professional Responsibility defines law firm as including a professional legal corporation or a legal clinic. The Code could have included other practice arrangements in this definition but did not.
Law firms are different from a collection of solo practitioners who merely share some aspects of a law practice. The practice arrangement you describe would not commonly be considered a "law firm" by either lawyers or non-lawyers. The practice arrangement you describe is with lawyers outside your firm.
It is the opinion of the Board that the practice arrangement you describe does not fall within the definition of law firm for purposes of DR 2-107 (A). Lawyers who practice in association with other lawyers, but not as a partnership, would not be considered lawyers within the "same firm" and therefore must fully comply with the restrictions regarding division of fees contained within DR 2-107 (A).
This is an informal, non-binding advisory opinion based only upon the facts presented and limited to questions arising under the Code of Professional Responsibility.