Can a Washington lawyer who took a referred wrongful death case share the contingent fee with the referring lawyer, who is licensed in Canada and not subject to Washington's rules?

Plain-English summary

A Canadian resident traveling in Washington was killed through another's negligence. The decedent's survivors retained Canadian counsel, who commenced litigation in Washington and referred the wrongful death claim to a Washington lawyer, presumably on a contingent fee. The inquiring Washington lawyer asked whether the fee paid from any recovery could be shared with the referring lawyer, who is not licensed in Washington and not subject to the Washington RPCs.

The committee answered yes: the fee paid from any recovery may be shared between the attorneys, on condition that there is compliance with RPC 1.5(e)(2). The committee restated the rule's requirements: the division is in proportion to the services provided by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; the client is advised of and does not object to the participation of all the lawyers involved; and the total fee is reasonable.

In practice

Under this opinion, and under RPC 1.5(e) as it stood in 2006, the referring lawyer's foreign licensure did not bar the fee split; the committee tied the answer to the division-of-fees conditions in RPC 1.5(e)(2). The opinion permits sharing the contingent fee from any recovery if the division is proportional to each lawyer's services or, by written agreement, the lawyers assume joint responsibility, the client is advised of and does not object to all lawyers' participation, and the total fee is reasonable. The opinion addresses only the propriety of the fee division under RPC 1.5(e); it does not analyze any other dimension of the cross-border arrangement.

Common questions

Q: Can a Washington lawyer split a contingent fee with a lawyer licensed only in Canada?

A: Yes. The committee concluded the fee from any recovery may be shared, conditioned on compliance with RPC 1.5(e)(2).

Q: What does RPC 1.5(e)(2) require for the split?

A: A division in proportion to each lawyer's services or, by written agreement with the client, each lawyer's assumption of joint responsibility; the client advised of and not objecting to all lawyers' participation; and a total fee that is reasonable.

Q: Does it matter that the referring lawyer is not bound by Washington's rules?

A: The committee did not treat that as an obstacle to the Washington lawyer's participation in the split, so long as the Washington lawyer satisfies RPC 1.5(e)(2).

Background and rules framework

The opinion interprets Washington RPC 1.5(e) (division of a fee between lawyers who are not in the same firm; the counterpart to Model Rule 1.5(e)), and specifically the conditions in RPC 1.5(e)(2) governing proportional division or a written joint-responsibility agreement, client notice and non-objection, and overall reasonableness of the fee.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.5 / Washington RPC 1.5, 1.5(e), 1.5(e)(2) (division of fees between lawyers not in the same firm)

See also

• WSBA Ethics Op. 1072: Referral Fees Between Lawyers
• WSBA Ethics Op. 1154: Fee Division After Referral
• ABA Formal Op. 474: Referral Fees and Conflicts of Interest

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1552

Original opinion text

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

Advisory Opinion: 2114
Year Issued: 2006
RPC(s): RPC 1.5(e)(2)
Subject: a fee splitting arrangement with a Canadian attorney

The inquirer asks whether an attorney licensed in Washington, to whom a Canadian attorney has referred a wrongful death damage claim, may share the fee with the referring attorney paid out of any recovery.

A Canadian resident traveling in Washington was accidentally killed as a result of another’s negligence. Decedent’s survivors have retained Canadian counsel to commence litigation in Washington. The case was referred to Washington counsel, presumably on a contingent fee arrangement. The inquiring/referred to attorney asks our opinion on the ethical propriety of sharing fees with a lawyer not licensed in Washington or subject to the RPCs in Washington.

The committee opined yes, the fee paid from any recovery may be shared between attorneys, on condition there is compliance with RPC 1.5(e)(2):

The division is in proportion to the services provided by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; the client is advised of and does not object to the participation of all the lawyers involved; and the total fee is reasonable.