Ethics Opinion

Opinion 94-1

FLORIDA BAR ETHICS OPINION
OPINION 94-1
July 15, 1994
Advisory ethics opinions are not binding.
An agreement between a law firm and an attorney employed by the firm concerning
division of the fee from a case brought to the firm by the attorney is not subject to the
rules governing divisions between attorneys in different firms when the attorney leaves
the firm before the case is concluded.
CPR:
RPC:
Opinions:
Cases:

Misc.:

DR 2-107(B)
4-1.5(f)(4)(D), 4-1.5(g)
84-1
The Florida Bar Re Amendments to the Rules Regulating The Florida Bar,
519 So.2d 971 (Fla. 1987); Barwick, Dillian & Lambert, P.A. v. Ewing,
646 So.2d 776, (Fla 3d DCA 1994)
Rule 2, Florida Bar Procedures for Ruling on Questions of Ethics;
Wolfram, Modern Legal Ethics

A member of The Florida Bar has requested an advisory ethics opinion. The
operative facts as presented in the inquiring attorney’s letter are as follows.
Before leaving her employ at a law firm, the inquiring attorney entered into the
following written agreement with the firm regarding a particular client’s case that the
inquirer brought to the firm:
The law firm of [name omitted] (the “Firm”) hereby acknowledges and
agrees that fifty percent (50%) of any and all attorneys’ fees, settlement
awards, or other disposition of funds arising out of any and all claims,
whether personal injury or otherwise, of [client name omitted] are owned
outright by [inquiring attorney].
In the event that [inquiring attorney] terminates her employment with the
Firm, or is terminated by the firm, [inquiring attorney] shall nevertheless
be entitled to the 50% interest in the sums referenced above, provided,
however, that in the event [inquiring attorney] terminated her employment
with the firm [inquiring attorney] will also be responsible for 50% of the
costs of the Firm incurred in connection with such case or cases. Any cost
incurred, shall be mutually agreed upon by [inquiring attorney] and the
Firm prior to expending the same. Costs shall include hiring trial counsel
on an hourly basis.
This Acknowledgment of Interest is a confirmation of verbal agreements
by the Firm and [inquiring attorney] and is made in consideration of the
fact that [inquiring attorney] has originated this business for the Firm.

After the inquirer’s departure from the firm, the firm settled the particular
personal injury case covered by the Acknowledgment of Interest. The firm now takes the
position that it cannot pay the inquirer the 50% fee set forth in the above agreement
because to do so would violate Rule 4-1.5(f)(4)(D), Rules Regulating The Florida Bar.
Under that rule, a lawyer assuming secondary responsibility on a personal injury case
may not, absent court approval, receive more than 25% of the total fee. The firm
therefore asserts that it cannot ethically pay the inquirer more than 25% of the total fee.
The inquirer, on the other hand, takes the position that Rule 4-1.5(f)(4)(D) does not apply
to situations such as this where the attorney sharing in the fee was employed by the firm
at the time the contract for representation was entered into with the client.
The inquirer asks whether she may ethically receive payment from her former
firm as provided for in the Acknowledgment of Interest.
Rule 4-1.5(g) governs all fee divisions between attorneys who are not in the same
firm. That rule provides:
(g) Division of Fees Between Lawyers in Different Firms. Subject
to the provisions of subdivision (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.
Where an action or claim is “for personal injury or for property damages or for
death or loss of services resulting from personal injuries based upon tortious conduct of
another,” the fee division between attorneys in different firms is limited by the following
provisions of Rule 4-1.5(f)(4)(D):
As to lawyers not in the same firm, a division of any fee within
subdivision (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.
DR 2-107(B), part of the fee division rule under the old Florida Code of
Professional Responsibility, specifically exempted payments to a former partner or
associate pursuant to a law firm separation agreement. For reasons not clear, the
exemption provision was not retained when the Florida Rules of Professional Conduct,
which are based on the ABA Model Rules, became effective on January 1, 1987. “The
lack in the Model Rules of a precisely correlative provision to DR 2-107(B) is confusing
and regrettable but appears to have been inadvertent.” C. Wolfram, Modern Legal
Ethics, 880 n.14 (1986).
What is clear, however, is that a primary purpose of Rules 4-1.5(g) and 41.5(f)(4)(D) is to regulate the “brokering” of cases in referral situations. See The Florida
Bar Re Amendments to the Rules Regulating The Florida Bar, 519 So.2d 971, 972 (Fla.
1987). In this regard, the fee division rules attempt to ensure client consent and prior
“agreement on the roles, responsibilities, and financial arrangements for the respective
law firms that will participate” in a fee on a particular client’s case. Barwick, Dillian &
Lambert, P.A. v. Ewing, 646 So.2d 776 (Fla. 3d DCA 1994). When an attorney leaves a
firm, these ethical considerations are not triggered. Thus, the specific requirements of
Rule 4-1.5(g) and Rule 4-1.5(f)(4)(D) need not be satisfied in such situations. Rather, the
proper fee split arrangement between a law firm and a departing lawyer is matter of
contract to be decided by the parties, in accordance with applicable law. See Ewing;
Florida Ethics Opinion 84-1 [withdrawn].
Based on the foregoing and assuming all other ethical requirements have been
satisfied, the inquiring attorney may, without regard to the fee division rules, ethically
receive from her former firm any compensation to which she is entitled. Whether the
inquirer is entitled to receive 50% of the total fee in the instant case requires a
factual/legal determination that is beyond the scope of an ethics opinion. See Rule 2,
Florida Bar Procedures for Ruling on Questions of Ethics.