Attorney Referral Fees in Missouri - A Complete Guide

How to Ethically Share Fees With Other Missouri Attorneys

Missouri allows attorneys to divide fees on the basis of either work completed or with the assumption of joint responsibility. All agreements must be confirmed in writing.

Missouri Rule

Missouri Rules of Professional Conduct Rule 4-1.5(e) governs the terms for a division of fees. It provides:

A division of fee between lawyers who are not in the same firm may be made only if:

• (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
• (2) the client agrees to the association and the agreement is confirmed in writing; and
• (3) the total fee is reasonable.

Attorneys must obtain agreement in writing. The Rule 4-1.5 Comment states that this written agreement is not required to include any disclosure of each attorney’s share.

Reasonable Fees

All divisions of fees must be reasonable as defined under MRPC Rule 4-1.5(a). The rule states:

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:

• (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
• (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
• (3) the fee customarily charged in the locality for similar legal services;
• (4) the amount involved and the results obtained;
• (5) the time limitations imposed by the client or by the circumstances;
• (6) the nature and length of the professional relationship with the client;
• (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
• (8) whether the fee is fixed or contingent.

The commentary notes that these factors are not exclusive. Attorneys should determine reasonableness on a case-by-case basis.

Competency

When an attorney refers a client to another attorney, they must believe the attorney is competent to handle the matter. The Rule 4-1.5 Comment states that any division of fees must meet MRPC Rule 4-1.1. It states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Competency can refer to either an attorney currently possessing the needed skills or experience necessary or the ability to gain the needed skills and knowledge.

The commentary also lists the expectation that the attorneys will communicate with each other and the client about the extent of each attorney’s responsibilities and how they plan to allocate the work. If and when attorneys are unsure of the scope of their responsibilities, they should refer to MRPC Rule 4-1.2, which governs scope of representation.

Legal Ethics Opinions

Missouri issues both formal and informal advisory opinions, the latter of which are intended to provide general guidance. Three informal opinions provide additional guidance on divisions of fees.

Out-of-State Attorneys

Opinion No. 2018-05 answers the question of whether a Missouri attorney may share a referral fee with an attorney licensed in another jurisdiction. The Legal Ethics Counsel found the attorney could not merely pay a referral fee because the division would be based on a referral alone. The opinion reaffirmed that any division must include either work completed or an assumption of joint responsibility.

An earlier opinion, No. 940154, found that a Missouri attorney could split fees with an attorney licensed in another jurisdiction if the requirements of Rule 4.1-5(e) were met. In this case, a Missouri attorney referred a client to an attorney in another jurisdiction regarding a car accident that had occurred in that state. The Missouri attorney remained involved in the case, and the fee division met the requirements of the MRPC.

Disbarred Attorney

Opinion No. 2015-05 answered the question of whether an attorney could divide a fee with an attorney who has been disbarred. The key to this question is timing. If the attorneys agreed to the division while both attorneys were in good standing, the active attorney may divide the fee with the disbarred attorney. The second requirement is that any division should only include work performed while the disbarred attorney was an active member of the bar.

Conclusion

Missouri-barred attorneys may divide fees based on services performed or with the assumption of joint responsibility. They may split fees with attorneys from other jurisdictions as long as they satisfy the requirements of Rule 4.1-5(e).