When a lawyer turns down or refers a case because of a conflict and does no further work, can that lawyer still share in the contingent fee?

Plain-English summary

The inquiry concerned fee splitting when the referring lawyer has a conflict of interest. The committee answered three variations and reached the same result in each.

First, where a referring lawyer or firm cannot handle a case because of a conflict and will have no continuing participation after the referral, RPC 1.5(e) and RPC 1.8 would not allow the referring firm to take a share of the accepting lawyer's contingent fee. Second, where the referring lawyer simply refers a case (with no conflict) but does not continue to participate, RPC 1.5(e) would not allow a share of the contingent fee charged the client. Third, a fee-sharing arrangement on the contingent fee that is not based upon actual services provided by the referring lawyer or firm would not be allowed under RPC 1.5(e); the committee referred to its Formal Opinion 10.

Currency note

This opinion was issued in 1998, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.5(e) and RPC 1.8 correspond to ABA Model Rules 1.5(e) (division of a fee between lawyers not in the same firm) and 1.8 (specific conflicts of interest). The current Model Rule 1.5(e) permits a division between lawyers of different firms only in proportion to services performed or, with the client's written agreement, where each lawyer assumes joint responsibility.

Common questions

Q: Can a lawyer who refers a case because of a conflict still take part of the contingent fee?

A: No. Where the referring lawyer has a conflict and will not continue to participate, the committee concluded RPC 1.5(e) and RPC 1.8 would not allow a share of the accepting lawyer's contingent fee.

Q: What about a plain referral with no conflict but no continuing work?

A: The committee concluded RPC 1.5(e) would not allow the referring lawyer to share in the contingent fee where the referring lawyer does not continue to participate in the representation.

Q: Can lawyers split a contingent fee that is not based on services the referring lawyer performed?

A: No. The committee concluded such an arrangement would not be allowed under RPC 1.5(e), and referred to its Formal Opinion 10.

Background and rules framework

The opinion applied Washington RPC 1.5(e) (division of fees between lawyers not in the same firm) and RPC 1.8 (specific conflicts of interest), corresponding to ABA Model Rules 1.5(e) and 1.8. The committee made the analysis turn on whether the referring lawyer continued to participate in the representation and whether the fee tracked actual services performed, and cited its Formal Opinion 10.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.5 (fees; division of a fee between lawyers); Washington RPC 1.5(e)
• ABA Model Rule 1.8 (specific conflicts of interest); Washington RPC 1.8

Other opinions cited:

• WSBA Formal Opinion 10: division of fees.

See also

• WA Ethics Op. 1072: Referral Fees Between Lawyers
• WA Ethics Op. 1117: Departing Lawyer, Fee Split
• WA Ethics Op. 1039: Contract Lawyer Markup

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1005

Original opinion text

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

Advisory Opinion: 1812
Year Issued: 1998
RPC(s): RPC 1.5(e); 1.8; Formal Opinion 10
Subject: Division of fees with lawyer who withdraws due to conflict of interest

The Committee researched and reviewed your inquiry concerning fee splitting when the referring lawyer has a conflict of interest and determined the following:

1. Where the referring lawyer/firm indicates that it cannot handle the case because of a conflict of interest, is the referring firm entitled to a fee from any contingent fee earned by the accepting lawyer when the referring lawyer will have no continuing participation in the representation of the client after the referral? RPC 1.5(e) and l.8 would not allow such an arrangement.

2. Where the referring lawyer/firm simply refers the case to the accepting lawyer and has no conflict with the client, may the referring lawyer/firm receive a share of the contingent fee charged the client even though they do not continue to be actively participating in the representation of the client? RPC 1.5(e) would not allow such an arrangement.

3. Is it permissible for the lawyers to agree to a fee sharing arrangement of the contingent fee when the fee is not based upon actual services provided by the referring lawyer/firm? RPC l.5(e) would not allow such an arrangement. See also Formal Opinion 10.