FLORIDA BAR ETHICS OPINION
January 11, 2002
Advisory ethics opinions are not binding.
An attorney may not give a bonus to a nonlawyer employee solely based on the number
of hours worked by the employee.
A member of The Florida Bar has requested an advisory ethics opinion. The operative
facts as presented in the inquiring attorney’s letter and telephone call are as follows.
Specifically, the attorney inquires:
May I bonus a non-lawyer employee based on the number of hours the nonlawyer employee has worked on a case for a particular client?
As a family law attorney I do virtually nothing at a flat rate and certainly no work
is done by percentage. I bill my time and the time of my legal assistant at
separate hourly rates which are itemized on the client’s bill and described in the
written fee agreement with the client. I would like to bonus my employees based
on their own productivity. I would not be utilizing any portion of the fees
received by me for that purpose.
Although the attorney did not specifically state it in the written request, during the hotline
call the attorney proposed the following: If the legal assistant works ten hours on a case and the
attorney bills the client ten hours of legal assistant time, may the attorney pay a bonus to the
legal assistant based on a certain rate times ten hours?
Rule 4-5.4(a), Florida Rules of Professional Conduct, provides that a lawyer or law firm
“shall not share legal fees with a nonlawyer.” Rule 4-5.4(a)(4), specifically deals with the issue
of “bonus” payments to nonlawyer personnel in a law firm. The rule provides as follows:
(a) Sharing Fees with Nonlawyers. A lawyer or law firm shall not share legal
fees with a nonlawyer, except that:
(4) bonuses may be paid to nonlawyer employees based on their extraordinary
efforts on a particular case or over a specified time period, provided that the
payment is not based on the generation of clients or business and is not calculated
as a percentage of legal fees received by the lawyer or law firm.
Pursuant to Rule 4-5.4(a)(4), the inquirer may pay the firm’s legal assistant a bonus, but
that bonus cannot be based in any way upon a percentage of fees generated by the legal assistant
or the firm and cannot be based upon generating clients for the firm. Bonuses to non-lawyer
employees cannot be calculated as a percentage of the firm’s fees or of the gross recovery in
cases on which the non-lawyer worked. See Florida Ethics Opinion 89-4 (law firm cannot pay to
firm marketing manager a bonus based upon percentage of business she generates for the firm).
Rule 4-7.2(c)(8) [See current Rule 4-7.17(b)], Florida Rules of Professional Conduct, further
prohibits attorneys from giving “anything of value to a person for recommending the lawyer’s
services. . . . ”
Based on the rules and opinion, the inquiring attorney may pay the legal assistant a bonus
based on the legal assistant’s extraordinary efforts on a particular case or over a specific period
of time. While the number of hours the legal assistant works on a particular case or over a
specific period of time is one of several factors that can be considered in determining a bonus for
the legal assistant, it is not the sole factor to be considered. It must be remembered that the rule
allows a bonus to be paid to a nonlawyer based on “extraordinary efforts” either in a particular
case or over a specific time period. A bonus which is solely calculated on the number of hours
incurred by the legal assistant on the matter is tantamount to a finding that every single hour
incurred was an “extraordinary effort”, and such a finding is very unlikely to be true. Therefore,
unless every single hour incurred by the legal assistant was a truly extraordinary effort, it would
be impermissible for the inquiring attorney to pay a bonus to his legal assistant calculated in the
manner the inquiring attorney has proposed. However, the number of hours incurred by the legal
assistant on the particular matter or over a specified time period may be considered by the lawyer
as one of the factors in determining the legal assistant’s bonus.