Can a lawyer use a lay consulting service for medical-legal research and expert witnesses in personal injury cases, paid on a contingent or flat fee basis?
Apply this to your situation
This page answers the general question as of 1984. Ask about yours and see what the current Wisconsin Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
Opinion E-84-1 addressed the use of a lay consulting service in personal injury cases. The service represented that it does not practice law or medicine, but restricts itself to technical, medical-legal consultation and research and the procurement of expert witnesses, offered on a contingent or flat fee basis. The question was whether a lawyer may use such a service.
The committee concluded the former Code permits using such a service, subject to three conditions: the service must not engage in the unauthorized practice of law (SCR 20.18(1)); the lawyer must not share legal fees with the service (SCR 20.19); and a contingent fee must not be paid for expert testimony (SCR 20.43). On the first, assuming the consulting does not constitute the unauthorized practice of law, a lawyer may recommend the arrangement to a client, but the lawyer must at all times retain full control of the litigation and may not abdicate ultimate professional responsibility for evaluating the case and the course to follow (SCR 20.23(1)). On the second, the committee directed that the consultant's fees be paid from proceeds recovered on the client's claim rather than from the attorney's legal fees. On the third, payment of witness fees by the service would be prohibited where they originate from the contingent arrangement, but there is no impropriety if witness fees and expert expenses are separate charges paid by the client regardless of outcome. Subject to those qualifications, the committee concluded the service may be used on either a contingent or flat fee basis.
Currency note
This opinion was issued in 1984, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it analyzes conduct under the former Code. Aiding the unauthorized practice of law, fee sharing with nonlawyers, and payments to witnesses are now analyzed under SCR 20:5.5, 20:5.4, and 20:3.4 / Model Rules 5.5, 5.4, and 3.4. 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 Treat this page as historical context, not current guidance.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 use a lay medical-legal consulting service in injury cases?
A: The committee concluded yes, if the service does not engage in UPL, the lawyer does not share legal fees with it, and no contingent fee is paid for expert testimony.
Q: How must the consultant be paid?
A: The committee directed that the consultant's fees be paid from the client's recovery, not from the attorney's legal fees, to avoid sharing fees with a nonlawyer.
Q: Can expert witnesses be paid on a contingent basis through the service?
A: No. The committee concluded contingent witness fees are barred where they originate from the contingent arrangement, though separate witness charges the client pays regardless of outcome are permissible.
Background and rules framework
The opinion interpreted the former Code's bars on aiding the unauthorized practice of law (SCR 20.18(1)), sharing fees with a nonlawyer (SCR 20.19), and paying contingent witness fees (SCR 20.43), plus the duty to retain control of the matter (SCR 20.23(1)). These subjects are now addressed by SCR 20:5.5, 20:5.4, and 20:3.4 / Model Rules 5.5, 5.4, and 3.4.
Citations and references
Rules of Professional Conduct:
- Wis. SCR 20.18(1) / Model Rule 5.5 (aiding the unauthorized practice of law) (former Code provision)
- Wis. SCR 20.19 / Model Rule 5.4 (fee sharing with a nonlawyer) (former Code provision)
- Wis. SCR 20.43 / Model Rule 3.4 (contingent witness fees) (former Code provision)
Other opinions cited:
- ABA Informal Opinions 1375 (Aug. 10, 1976) and 1445 (Feb. 1, 1980)
- Maine State Bar Association Opinion 67 (August 1978)
See also
- WI Ethics Op. E-84-4: Division of Legal Fees With a Layperson
- WI Ethics Op. E-84-17: Payment for Referrals From an Insurance Company Subsidiary
- WI Ethics Op. E-86-19: Court Reporter as Full-Time Law Firm Employee
Source
What do the rules say today, for your facts?
This opinion is from 1984. Ezel checks the current Wisconsin Rules of Professional Conduct against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace