Attorney Referral Fees in Washington, DC - A Complete Guide

Overture Staff

15 min read

How to Ethically Share Fees With Other Washington DC Attorneys

Washington, DC largely follows Model Rule 1.5(e) and allows attorneys to divide fees based on work performed or by assuming joint responsibility, but has some nuances. Attorneys must document in writing both advising the client and receiving client consent.

Washington, DC Rule

Washington, DC Rules of Professional Conduct Rule 1.5(e) lists the requirements for any division of fees. It states:

A division of a 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 is advised, in writing, of the identity of the lawyers who will participate in the representation, of the contemplated division of responsibility, and of the effect of the association of lawyers outside the firm on the fee to be charged;

(3) The client gives informed consent to the arrangement; and

(4) The total fee is reasonable.

Although similar to the ABA Model Rules, DC has some important differences. Attorneys must not only obtain client consent in writing but also advise the client in writing. DC lawyers must disclose the identity of all participating attorneys and explain how the involvement of nonfirm attorneys may affect the fee. The ABA Model Rules are silent in this regard.

Another difference is that D.C. lawyers do not have an obligation to disclose their share of the fee to the client. Attorneys must instead inform clients of the expected scope of each attorney’s responsibility.

Reasonable Fees

All fees must be reasonable. DCRPC Rule 1.5(a) provides:

A lawyer’s fee shall be reasonable. 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 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.

Unlike Rule 1.5(e), Rule 1.5(a) replicates the Model Rules. D.C. did not, however, adopt any of the Model Rule Comment for Rule 1.5(a) and did not include any commentary.

The Model Rule comment to Rule 1.5(a) states that these factors are not exclusive. The DCRPC did adopt the Model Rules definition of reasonable, which states reasonable conduct is that of a “reasonably prudent and competent lawyer.”

Joint Responsibility

The Rule 1.5 Comment mentions that one reason that D.C. now allows joint responsibility as a basis for a fee division is to encourage lawyers to affiliate with other lawyers. This is especially the case when a lawyer, due to experience, skills, or specialized knowledge, is better situated to serve a client’s needs. Allowing joint responsibility encourages attorneys to refer a client to another attorney without losing the right to a fee.

Joint responsibility does not require any minimum participation from the referring attorney. It does, however, require the referring attorney to assume responsibility for the client throughout representation. This includes being accountable for any deficiencies in the other lawyer’s conduct. If the referring attorney does not want to assume that responsibility, they should refer the client to the other attorney without expecting a fee.

The Comment also references DCRPC Rule 5.1 when determining joint responsibility. It provides:

(a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm or government agency, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm or agency conform to the Rules of Professional Conduct

(b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.

(c) A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if:

(1) The lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) The lawyer has direct supervisory authority over the other lawyer or is a partner or has comparable managerial authority in the law firm or government agency in which the other lawyer practices, and knows or reasonably should know of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.”

Paragraph 5 of the Comment to Rule 5.1 states that determining what a lawyer should know about another attorney’s potential misconduct is a question of fact. Merely having a partnership is insufficient to establish what an attorney should know or should have known regarding the conduct and what the attorney did to lessen or reduce the consequences of that misconduct.

Similar to reasonable fees, part of the determination will come down to what a “reasonably prudent and competent lawyer” would likely do in that situation.

Conclusion

Attorneys may divide fees with another attorney based on services performed or by assuming joint responsibility. In the latter case, attorneys do not have a minimum work requirement but take on responsibility for the client throughout representation.