The Florida Bar

Ethics Opinion

Opinion 98-1

March 27, 1998
Advisory ethics opinions are not binding.
It is impermissible for an attorney to enter into an arrangement with a medical-legal consulting
service on a contingency fee basis to provide services to the attorney’s client, including provision
of an expert witness.


4-3.4(b), ABA Model 1.5, 1.7(b), 3.4(b), Illinois 7-109(c), Pennsylvania 3.4(b)
ABA Formal 87-354, ABA Informal 1375, Alabama Opinion 83-135, Georgia
Opinion 48, Illinois Opinion 86-03, Mississippi Informal Opinion 189, New
Jersey Opinion 562, Pennsylvania Informal Opinion 95-79, South Carolina
Opinion 81-11, Tennessee Formal Opinion 85-F-101, Texas Opinion 458, District
of Columbia Opinion 55
F.S. §766.208

A member of The Florida Bar has requested an advisory ethics opinion. The operative
facts as presented in the inquiring attorney’s letter and prior telephone call are as follows. The
inquiring attorney’s practice includes medical malpractice cases. He has been approached by a
professional medical-legal consulting service. The medical-legal consulting service would pay a
medical expert an hourly fee to review the medical records of the inquiring attorney’s clients. If
the medical expert determines that the client’s physicians did not meet the acceptable standard of
care, the medical expert would provide an affidavit to that effect as required by Florida Statute
Section 766.208. The medical expert would then serve as the inquiring attorney’s witness
throughout the case.
As previously stated the expert witness would be paid an hourly fee by the medical-legal
consulting service. However, the medical-legal consulting service intends to charge a
contingency fee. The inquiring attorney asks whether he may ethically enter into such an
arrangement. He is aware that Rule 4-3.4(b), Rules of Professional Conduct, prohibits the
payment of a contingency fee for the services of an expert witness, but questions the applicability
of the rule where it is the medical-legal consulting service that will be paid on a contingency
basis rather than the expert. The inquiring attorney enclosed ethics opinions from Georgia,
Alabama, Mississippi, and Washington, D.C. Bar Association Opinion 55 and Florida Bar Staff
Opinion TEO 87273 which seem to approve such arrangements.
There is no opinion from the Professional Ethics Committee on this matter in Florida.
Further, the Florida Bar Staff Opinion cited by the inquiring attorney relied on ABA Informal
Opinion 1375. That informal opinion was specifically withdrawn by the ABA in Formal
Opinion 87-354. However, the ABA in Formal Opinion 87-354 and other states have addressed
the use of contingency fees for medical-legal consultants.
In Formal Opinion 87-354, the ABA Committee on Ethics and Professional
Responsibility was asked whether a lawyer could recommend that a client engage, or represent a
client who had engaged a medical-legal consulting firm on a contingent or straight fee basis.
The consulting firm would provide an initial report through its Medical Directors, consultation

with its Medical Directors and, if the case warranted, assistance to lawyers at depositions and
trial. The consulting firm also made expert witnesses from its independent consulting staff
available. The consulting firm offered a direct fee contract and three types of contingency fee
contracts: (1) a modified contingency fee of 20% of the recovery where the client pays reduced
fees for the report and expert witnesses; (2) a straight contingency fee of 30% of the total
recovery and (3) a contingency fee for maximizing recovery after a settlement offer that is a
percentage of the recovery that is in excess of the settlement offer. The expert witnesses
themselves were not paid on a contingency basis. The client would enter into a written contract
directly with the consultant. The lawyer was also to agree to distribute any recovery in
accordance with the contract and to not to use any of the experts provided by the consultant in
future cases without the consultant’s permission.
The ABA Committee concluded that whether such arrangements in general were
permissible would depend upon all the facts and circumstances, but that under the specific facts
presented the lawyer’s proposed conduct may violate the Model Rules of Professional Conduct.
One concern the ABA had involved the reasonableness of the attorney’s fee in light of the work
done by the consulting service. The ABA stated that if any of the work was that normally
provided by a lawyer, the lawyer would violate Model Rule 1.5 if his contingency fee was not
adjusted. The second concern the ABA had involved Model Rule 3.4(b) which prohibited
payments to expert witnesses that are prohibited by law. The ABA noted that the common-law
in most states forbids payment of a contingency fee to expert witnesses. The ABA found that the
entire arrangement raised many of the same questions as a direct payment of a contingency fee to
an expert. The third concern the ABA had with the arrangement was the provision of the
contract where the lawyer agreed not to contact or use the consultant’s experts in further cases
without the consultant’s permission. The committee felt this could present a conflict under
Model Rule 1.7(b) because the attorney restricted future clients with respect to the use of expert
witnesses. The fourth concern the ABA had dealt with the lawyer’s duty to exercise independent
professional judgment in the selection and use of expert witnesses. Finally, the ABA was
concerned that the arrangement could be champertous under state law as involving defraying the
costs of suit for a share of the recovery.
Of the states that have considered such arrangements, it appears that a majority
conditionally approve them as long as certain ethical guidelines are met. See, e.g.; Georgia Bar
Committee on Ethics Opinion 48 (attorney may recommend that client contract directly with
medical-legal consultant on a contingency fee basis if the fee is reasonable, the expert witness is
completely neutral, detached and independent of the consulting service, the consulting service
does not interfere with the attorney’s independent professional judgment and the attorney fully
informs the client of the provisions of the contract; Ethics Committee of the Alabama Bar
Association Opinion 83-135 (attorney may enter into contingency fee agreement with medicallegal consultant if consultant’s activities do not constitute the unauthorized practice of law, the
lawyer does not divide his fee with the consultant, fees paid to the expert witness are not
contingent on the outcome of the case, the consultant’s activities do not interfere with the
attorney’s exercise of independent professional judgment and all funds collected are put into a
client trust account.); Mississippi Bar Committee on Ethics Informal Opinion 189 (attorney may
recommend that client contract directly with medical-legal consultant on a contingency fee basis
if the consultant does not engage in the practice of law, does not share fees with the attorney and
the fee is not payable for the testimony of a lay person); Legal Ethics Committee of the D.C. Bar
Association Opinion 55 (attorney may recommend that client contract directly with medical-

legal consultant on a contingency fee basis if expert witness paid regardless of outcome);
Tennessee Board of Professional Responsibility Formal Opinion 85-F-101 (attorney may
recommend that client contract directly with medical-legal consultant on a contingency fee basis
if the attorney retains control over the case, consultant does not engage in the unauthorized
practice of law, the attorney does not share legal fees with the consultant, and the contingent fee
is not paid for the testimony of a witness and South Carolina Bar Ethics Advisory Committee
determined in Opinion 81-11 (1981) (attorney may allow client to contract directly with a
medical doctor on a contingency fee basis as long as testimony is not a service for which a doctor
receives a contingency fee, the medical doctor does not engage in the unauthorized practice of
law, the lawyer does not share fees with the doctor, and the doctor does not interfere with the
attorney’s independent professional judgment).
Other states which have considered this issue have decided that the ethical problems
inherent in such an arrangement are too great and have declined to allow such arrangements with
medical-legal consultants. For instance, in New Jersey Advisory Committee on Professional
Ethics Opinion 562 (1985), it was determined that such contracts would violate a state statute
prohibiting doctors from contracting for contingency fees where medical services rendered to a
client form any part of a legal claim. The ethics committee held that to the extent doctors were
involved as a principal in the medical-legal consulting service, such conduct would violate the
state statute and, therefore, it would be unethical for an attorney to solicit, enforce or otherwise
be involved with a contract involving a medical-legal consultant. The Texas Professional Ethics
Committee in Opinion 458 (1988) considered whether an attorney may participate in or
recommend that a client enter into a contingency fee contract with a medical-legal consulting
firm where the firm would provide various services including the provision of expert testimony.
The committee found the arrangement in its entirety gave the appearance of impropriety, beyond
the problems presented with fee splitting, excessive fees, loss of attorney control over the case,
the prevention of the unauthorized practice of law and the payment of contingency fees in
exchange for expert testimony. Similarly, the Illinois State Bar Association in Advisory Opinion
86-03 (1986) stated that it was improper for a lawyer to hire or recommend or acquiesce in a
client hiring an agency to provide expert witnesses where the agency is to be paid a contingency
fee. The Illinois Bar Association found the arrangement to be an improper circumvention of the
meaning and intent of its Rule 7-109(c) which prohibited attorneys from paying or acquiescing to
the payment of witnesses based on the content of the testimony or outcome of the case. Finally,
the Pennsylvania Bar Association Committee on Legal Ethics and Professional responsibility
disapproved a similar arrangement in Informal Opinion 95-79 (1995). One committee member
Rule 3.4(b) provides that a lawyer shall not: “ . . . pay or acquiesce in the
payment of compensation to a witness contingent upon the content of the witness’
testimony or the outcome of the case . . . ˮ
The purpose of the Rule is to assure that a court and jury will hear the
honest conclusions of the expert unvarnished by the temptation to share in the
Here the MFRI Corporation seeks to meet the requirements of the Rule by
setting fixed fees for the work performed and the testimony proffered by the
experts. The ethical question, however, rests upon still another provision of the

contract: the Corporation’s requirement that the client obtain the Case Evaluation
Report of its medical consultant. In this regard let us not forget MFRI’s interest
in the outcome of the litigation--15% of the recovery.
It’s true the medical consultant is not to be the witness, but who is to doubt
that he will carefully shop his Evaluation among prospective witnesses before
selecting the expert whose conclusions most closely resemble his own. And
consider, finally, the experts themselves and the inclination for them to accept the
opinions of the medical consultant handing out the retainers.
The Corporation’s efforts to sanitize its contingency contract fall short of
the mark, and the Rule says a lawyer may not acquiesce in payment to a witness
contingent upon the content of his testimony.
The committee is of the opinion that the inquiring attorney’s proposal is ethically