Can a Virginia lawyer split a fee with an out-of-state attorney who refers a criminal case and acts only as an interpreter?

Plain-English summary

A District of Columbia attorney, not licensed in Virginia and not handling criminal matters, wished to associate a Virginia attorney to handle misdemeanor charges against several of the D.C. attorney's Spanish-speaking clients in Virginia criminal court. The D.C. attorney would serve only as an interpreter and communication link, performing no part of the criminal work. He proposed collecting the fee from the client, keeping half, and remitting the other half to the Virginia attorney. The inquiry asked whether the Virginia attorney could accept payment in exchange for handling the matters, and whether it would be more appropriate for the D.C. attorney to charge a referral fee while the Virginia attorney set his own fee with the client.

The committee identified DR 2-105(D) as controlling for fee divisions between lawyers in separate firms or licensed in separate states. That rule allowed division if (1) the client consents to additional counsel; (2) both attorneys assume responsibility to the client; and (3) the division terms are disclosed and the client consents to them. Citing LE Op. 844, which found fee sharing between referring and working attorneys not improper when those conditions were met, and EC 2-24, the committee concluded that, on the limited facts, the proposed arrangement would not be improper as long as the client consented to the added employment and the fee-division terms and both attorneys assumed responsibility after full and adequate disclosure. It noted the collateral issues arising from the D.C. attorney's own conduct were outside its purview.

Currency note

The Virginia State Bar's committee note records that this opinion was overruled by Rule 1.5(e), which does not require a lawyer who shares in a fee to also share responsibility, thereby allowing pure referral fees when the client consents after full disclosure. This opinion was issued in 1988, under Virginia's former Code of Professional Responsibility, before the adoption of the Rules of Professional Conduct effective January 1, 2000. Treat this page as historical context, not current guidance.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: Could a Virginia lawyer split a fee with an out-of-state lawyer who only referred the case and interpreted?

A: Under this 1988 opinion, yes, the arrangement was not improper if the client consented to the added employment and the division terms and both attorneys assumed responsibility after full disclosure. The committee note records the opinion was later overruled by Rule 1.5(e).

Q: What conditions did DR 2-105(D) require for the fee split?

A: Client consent to additional counsel, both attorneys assuming responsibility to the client, and disclosure of the division terms with the client's consent to them.

Q: What changed under Rule 1.5(e)?

A: Per the committee note, Rule 1.5(e) no longer requires a fee-sharing lawyer to share responsibility, so a pure referral fee is allowed if the client consents after full disclosure.

Background and rules framework

The opinion interpreted former Virginia DR 2-105(D) and EC 2-24 on dividing fees between lawyers not in the same firm. Virginia's current counterpart is Rule 1.5(e), the analog of ABA Model Rule 1.5(e); as the committee note records, the current rule allows referral fees without shared responsibility on client consent.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 2-105(D) and EC 2-24 (division of fees between lawyers in different firms or states)
• ABA Model Rule 1.5 (fees; division of fees among lawyers)

Other opinions cited:

• Virginia LE Op. 844: fee sharing between referring and working attorneys.

See also

• VA LEO 1160: Forwarding Fee When a Conflict Exists
• VA LEO 1488: Referral Fee for No Work
• VA LEO 1254: Lawyers Owning a Bail-Bond Business

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1130.pdf

Original opinion text

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

Committee Opinion
October 18, 1988
LEGAL ETHICS OPINION 1130

FEES – REFERRALS: DIVIDING A
REFERRAL FEE WITH A FOREIGN
ATTORNEY.

You have advised that an attorney licensed in the District of Columbia, but not licensed
with the Commonwealth of Virginia, wishes to associate a licensed Virginia attorney to
handle the misdemeanor offenses against several of his Spanish speaking clients in
criminal court in Virginia. The District of Columbia attorney does not handle criminal
matters and has agreed to avail himself for communication purposes between the Virginia
attorney and the client. Other than acting as an interpreter in these matters, the District of
Columbia attorney will not perform or become involved in the criminal matters. The
attorney from the District of Columbia has proposed a fee and has suggested collecting
the fee from the client, retaining one-half of the fee for himself and submitting the other
half to the Virginia attorney, to whom he has referred the business to resolve in court.
You wish to know whether it is improper for the Virginia attorney to accept payment in
exchange for handling the criminal matters for an out-of-state attorney's clients. You
inquire further, if the answer to the first part of the question is no, then would it be more
appropriate for the District of Columbia attorney to charge a referral fee to the
prospective client and allow the Virginia attorney to establish a fee schedule directly with
the client.
Disciplinary Rule 2-105(D) is the appropriate and controlling rule for matters
concerning division of legal fees between lawyers who are in separate firms or who are
licensed to practice in separate states. The rule provides that fees may be divided between
lawyers if (1) the client consents to the employment of additional counsel; (2) both
attorneys assume responsibility to the client; and (3) the terms of the division of the fee
are disclosed to the client, and the client's consent thereto is obtained. The committee
directs your attention to LE Op. 844, which did not find fee-sharing between “referring”
and “working” attorneys to be improper, provided that the attorneys complied with the
conditions enumerated in DR:2-105(D).
Ethical Consideration 2-24 [EC:2-24] reaffirms DR:2-105(D), stating that a lawyer
should not associate another lawyer outside his firm without the informed consent of his
client. A fee may be divided between the lawyers if consented to after full disclosure to
the client.
Under the limited facts presented in your inquiry, the Committee believes that the fee
arrangement you have proposed would not be improper as long as the attorneys obtain the
client's consent for additional employment and division of fee terms, and both attorneys
assume responsibility after full and adequate disclosure under the circumstances. The
other collateral issues which your inquiry raises are not within the purview of the
Committee since they are based on the actions of the District of Columbia attorney.

Committee Opinion
October 18, 1988
Legal Ethics Committee Notes. – This LEO was overruled by Rule 1.5(e), which does
not require that a lawyer sharing in fees also share responsibility, thus allowing “referral
fees” if the client consents after full disclosure.