Ezel / Ethics Opinions / SBAND

Could a firm take a contingent fee through a nonlawyer transportation specialist representing employee claimants?

Short answer The committee found the proposed contingent payment through the nonlawyer agent impermissible fee sharing under Rule 5.4. It said a different arrangement paid by the specialist to represent employees might be possible under Rule 1.8(f), with each employee’s consent.
Bar
SBAND
Issued
September 15, 1989
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1989. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The firm proposed representing former employees in benefit arbitration while a nonlawyer transportation specialist continued to act for the claimants. The firm would receive a fee from the specialist, contingent on the outcome and calculated as a share of employees’ benefit awards.

The committee concluded the proposed arrangement was impermissible fee sharing with a nonlawyer under Rule 5.4. It said the specialist might instead pay the firm to represent the employees if the arrangement fully complied with Rule 1.8(f), including each employee’s consent, and did not indirectly evade Rule 5.4.

Currency note

This opinion was issued in 1989, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the committee approve the contingent payment from the specialist?

A: No. It found that arrangement impermissible nonlawyer fee sharing under Rule 5.4.

Q: Did it identify a possible alternative?

A: It said a different third-party payment arrangement might be structured under Rule 1.8(f), including consent from each employee and without evading Rule 5.4.

Background and rules framework

The committee applied Rule 5.4 to the contingent fee routed through the nonlawyer specialist and Rule 1.8(f) to a possible alternative third-party payment for representation of the employees.

Citations and references

Rules of Professional Conduct:

  • Rule 5.4, barring the proposed fee sharing with a nonlawyer.
  • Rule 1.8(f), discussed for payment by a third party with each represented employee’s consent.

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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