Ethics Opinion

Opinion 90-8

FLORIDA BAR ETHICS OPINION
OPINION 90-8
March 1, 1991
Advisory ethics opinions are not binding.
The committee discusses situations in which it is or is not permissible for a Florida attorney to
divide a fee with an out-of-state attorney who is not admitted to The Florida Bar.
Note: Out-of-state lawyers may obtain pro hac vice admission in Florida no more than 3
times in a single 365 day period. See, Rules Regulating The Florida Bar 1-3.10, 1-3.11, and
4-5.5; Rule of Judicial Administration 2.510.
RPC:
Opinions:
Case:

4-1.5; 4-1.5(F); 4-1.5(F)(1) and (2); 4-1.5(F)(3)(b); 4-1.5(F)(4)(d); 4-1.5(G)
4-1.5(G)(1) and (2); 4-5.4(a)
60-18, 62-3, 88-10
The Florida Bar re Amendments to the Rules Regulating The Florida Bar, 519
So.2d 971 (Fla. 1987)

The Committee has been asked to render an opinion whether a Florida attorney may
ethically divide a fee with a non-Florida attorney. This inquiry has been made by a number of
Florida Bar members who have questioned the propriety of sharing, usually in a referral context,
a fee with an attorney who is not admitted to The Florida Bar.
Four possible fee division scenarios will be discussed. They are:
1. A member of an out-of-state bar lives in a condominium in Florida. A resident
of the condominium who needs legal advice talks to the out-of-state attorney. The
attorney refers the resident to a Florida attorney.
2. A resident of another state consults an attorney out of state regarding a criminal
matter in Florida. The out-of-state attorney decides that a Florida attorney must be
associated on the matter.
3. A resident of another state is injured in Florida while on vacation. The injured
person consults with an attorney in the person’s home state. That attorney refers
the case to a Florida attorney who charges a contingent fee.
4. A Florida attorney refers a case to a non-Florida law firm to be prosecuted in a
foreign jurisdiction. That jurisdiction has a rule which permits a 50% “referral
fee.”
(In this opinion, the term “Florida attorney” is used to mean a Florida Bar
member who resides in Florida.)

Rule 4-1.5 of the Rules Regulating The Florida Bar, (hereinafter “the Rule”), governs
attorney’s fees. Specifically, paragraph (G) sets forth the requirements governing the division of
fee in any type of case:
Subject to the provisions of paragraph (F)(4)(d), a division of fee between lawyers
who are not in the same firm may be made only if the total fee is reasonable and:
(1) The division is in proportion to the services performed by each lawyer; or
(2) By written agreement with the client:
(a) Each lawyer assumes joint legal responsibility for the representation
and agrees to be available for consultation with the client; and
(b) The agreement fully discloses that a division of fees will be made and
the basis upon which the division of fees will be made.
Paragraph (G)(1) of the Rule permits a division of fee on a quantum meruit basis, and
does not require a written agreement with the client. The comment to the Rule, however, states
that the division of fee must be disclosed to the client. Paragraph (G)(2) of the Rule permits
attorneys who are not in the same firm to divide a fee provided that the client agrees to the
division in writing and further provided that each attorney agrees in writing to assume joint legal
responsibility and to be available for consultation with the client.
The division of a fee in a contingent fee case is subject both to the provisions of
paragraph (G) and to additional restrictions found in paragraph (F) of the Rule. Unlike the
division of fees governed solely by paragraph (G), the division of any contingent fee between
lawyers who are not in the same firm must be pursuant to a written agreement with the client in
which the attorneys agree to assume joint legal responsibility. Rule 4-1.5(F)(1) and (2). This
requirement applies to a division of a contingent fee in any matter. Thus, paragraph (G)(1),
which does not require a written agreement, is superseded by paragraph (F) in any contingent fee
case.
In certain types of contingent fee cases, paragraph (F)(4)(d) of Rule 4-1.5 sets forth
further restrictions on any division of fee between attorneys who are not in the same firm.
Specifically, paragraph (F)(4)(d) of the Rule applies to:
[a]ny fee in an action or claim for personal injury or for property damages or for
death or loss of services resulting from personal injuries based upon tortious
conduct of another, including products liability claims, whereby the compensation
is to be dependent or contingent in whole or in part upon the successful
prosecution or settlement thereof[.]
Regarding the division of a fee in these contingent fee personal injury-type cases,
paragraph (F)(4)(d) provides in pertinent part:
As to lawyers not in the same firm, a division of any fee within paragraph (F)(4)
shall be on the following basis:

1. To the lawyer assuming primary responsibility for the legal services on behalf
of the client, a minimum of 75% of the total fee.
2. To the lawyer assuming secondary responsibility for the legal services on
behalf of the client, a maximum of 25% of the total fee. Any fee in excess of 25%
shall be presumed to be clearly excessive.
3. The 25% limitation shall not apply to those cases in which two (2) or more
lawyers or firms accept substantially equal active participation in the providing of
legal services. In such circumstances counsel shall apply for circuit court
authorization of the fee division in excess of 25%, based upon a sworn petition
signed by all counsel which shall disclose in detail those services to be performed.
The application for authorization of such a contract may be filed as a separate
proceeding before suit or simultaneously with the filing of a complaint.
Proceedings thereon may occur before service of process on any party and this
aspect of the file may be sealed. Authorization of such contract shall not bar
subsequent inquiry as to whether the fee actually claimed or charged is clearly
excessive. An application under this section shall contain a certificate showing
service on the client and The Florida Bar. Counsel may proceed with
representation of the client pending approval.
Only in a case governed by paragraph (G)(1) (i.e., in a case in which the fee is not a
contingent fee and both attorneys actually work on the case), may attorneys divide a fee without
entering into a written agreement with the client which discloses how the fee will be divided and
states that the attorneys agree to assume joint responsibility.
In any other type of fee division, (i.e., a fee division to which paragraph (G)(1) is not
applicable) each attorney who shares in the fee must agree in writing to assume legal
responsibility for the representation and to be available to consult with the client. Therefore, in
such cases, it would be unethical to divide a fee with an attorney who does not at a minimum
agree in writing to accept legal responsibility for the representation and to be available for
consultation with the client.
With that background in mind, the above four scenarios will now be discussed. The first
hypothetical scenario may be resolved by application of prior Professional Ethics Committee
opinions and the preceding summary of Rule 4-1.5. Opinions 60-18 and 62-3 are relevant to the
first scenario. In these opinions the Committee concluded that it would be improper for a Florida
attorney to divide a fee with a non-Florida attorney who resides in Florida and refers a case to the
Florida lawyer. The Committee stated that it may constitute aiding the unauthorized practice of
law to accept cases referred by the non-Florida attorney. Additionally, the Committee stated that
the restriction on dividing a fee with a non-lawyer prohibits a Florida attorney from sharing a fee
with an inactive non-Florida lawyer residing in Florida. Opinion 60-18. See also Rule 4-5.4(a)
(prohibiting an attorney from sharing fees with a non-lawyer).
In Opinion 62-3 the Committee determined that it would be unethical for a Florida Bar
member to divide a fee with an out-of-state attorney residing in Florida because there could not
legitimately be a division of services or responsibility in the matter.

As noted above, the fee division provisions of Rule 4-1.5 require an attorney to either
work on a matter or assume joint legal responsibility in order to receive a portion of a fee
(depending upon whether the fee is on a contingent or non-contingent basis). Therefore, in
hypothetical scenario one the Florida attorney could not divide a fee with the resident
non-Florida attorney who refers a case because, as discussed in Opinions 60-18 and 62-3, the
non-Florida attorney cannot practice law in Florida or agree to assume joint responsibility as is
required by the rules. A division of fee in such a case would constitute improper fee-sharing with
a non-attorney and could constitute aiding in the unlicensed practice of law.
Regarding the second and third hypothetical scenarios, in which a Florida attorney
accepts a referral from an out-of-state attorney, the Florida attorney may divide a fee with the
referring attorney provided the division is in compliance with Rule 4-1.5. Any case referred to a
resident Florida Bar member practicing Florida law presumably will be related to Florida or
Florida law. A member of The Florida Bar is obligated to comply with the Rules Regulating The
Florida Bar, including the fee division rules. Therefore, it would be unethical for a Florida
attorney to pay a referral fee to an out-of-state attorney absent compliance with the applicable fee
division rules, regardless of whether the referring attorney is a member of The Florida Bar.
In the second scenario the fee division is specifically governed by paragraph (G) of the
Rule. Paragraph (F) is inapplicable because a fee in a criminal case cannot be contingent. See
Rule 4-1.5(F)(3)(b). Thus, the Florida attorney ethically may share a fee with the out-of-state
attorney in this case either based on work done or by written agreement with the client in
accordance with the requirements of paragraph (G). Unlike the non-Florida attorney who resides
in Florida, a practicing out-of-state attorney would be able to legitimately provide some legal
services to the out-of-state client, thereby avoiding the problems cited in Opinions 60-18 and
62-3.
The third scenario triggers the application of paragraphs (F)(1), (F)(2) and F(4)(d) of
Rule 4-1.5 because a contingent fee is involved. Accordingly, the attorney who assumes primary
responsibility must receive a minimum of 75% of the total fee and the attorney assuming
secondary responsibility may receive a maximum of 25% of the total fee. The fee division
agreement must be reduced to writing and the client must consent in writing to the agreement. As
in the second scenario, presumably the out-of-state attorney can provide services to the
out-of-state client thus avoiding the problems noted in the cited ethics opinions.
If, as in scenario four, a Florida attorney refers a case to an out-of-state attorney and
participates in the fee, the referring attorney must comply with paragraph (G) of the Rule. In
contingent fee cases paragraphs (F)(1) and (2) also apply. Furthermore, paragraph (F)(4)(d) is
applicable in personal injury-type contingent fee cases. If the applicable fee division rules are
followed, it will be ethical for the Florida attorney to divide a fee with the out-of-state attorney.
In adopting the fee division limitations set forth in Rule 4-1.5(F)(4)(d), the Supreme Court of
Florida stated that those limitations “will not apply to nonresident bar members unless those
nonresidents practice in matters of Florida law.” 519 So.2d 971, 972. That is the only exception
to the 25% limitation allowed by the court (aside from the exception contained in the rule itself
for true co-counsel who obtain circuit court authorization for a different fee-division
arrangement). Nothing in the Supreme Court’s order, the rule, or the comment to the Rule

suggests that the 25% limitation is inapplicable when a Florida Bar member refers a case to an
attorney in another state.
Nevertheless, in cases where the referring Florida Bar member participates in the trial of
the out-of-state case, choice of law principles should determine whether the Florida contingent
fee rule applies. See Opinion 88-10. In example number 7 of Opinion 88-10, the Committee
considered a situation in which an out-of-state attorney with an out-of-state client and an
out-of-state lawsuit sought to have a Florida attorney (who was either licensed in the other state
or admitted there pro hac vice) participate in the trial of the case. The Committee opined that the
other state had a more significant relationship to the client and the cause of action than did
Florida; therefore, the Committee concluded that the other state’s contingent fee rules were
applicable.