Attorneys must ensure that any fee division or referral arrangement complies with applicable Bar Rules. The following resources compile relevant ethics opinions and guidance materials to help practitioners evaluate whether a proposed referral fee arrangement is permissible and properly structured.

If you have specific questions that cannot be resolved through the listed Ethics Opinions or guidelines, please contact the Bar’s Ethics Hotline at 800.235.8619 for further assistance.

Here are all the Ethics Opinions regarding referral fees:

• Divide legal fees with an out-of-state lawyer 17-1
• Divide a fee with an out-of-state attorney who is not admitted to The Florida Bar 90-8
• Payment of referral fee to attorney who, subsequent to execution of fee-division agreement, has become suspended, disbarred, or resigned from The Florida Bar 90-3
• Attorney who refers personal injury case to another lawyer because of conflict of interests 89-1

Rules Regulating The Florida Bar Chapter 4

Referral fees and practices

A secondary lawyer is not entitled to a fee greater than the limitation set forth in rule 4-1.5(f)(4)(D)(ii) merely because the lawyer agrees to do some or all of the following: (a) consults with the client; (b) answers interrogatories; (c) attends depositions; (d) reviews pleadings; (e) attends the trial; or (f) assumes joint legal responsibility to the client. However, the provisions do not contemplate that a secondary lawyer who does more than the above is necessarily entitled to a larger percentage of the fee than that allowed by the limitation.

The provisions of rule 4-1.5(f)(4)(D)(iii) only apply where the participating lawyers have for purposes of the specific case established a co-counsel relationship. The need for court approval of a referral fee arrangement under rule 4-1.5(f)(4)(D)(iii) should only occur in a small percentage of cases arising under rule 4-1.5(f)(4) and usually occurs prior to the commencement of litigation or at the onset of the representation. However, in those cases in which litigation has been commenced or the representation has already begun, approval of the fee division should be sought within a reasonable period of time after the need for court approval of the fee division arises.

In determining if a co-counsel relationship exists, the court should look to see if the lawyers have established a special partnership agreement for the purpose of the specific case or matter. If such an agreement does exist, it must provide for a sharing of services or responsibility and the fee division is based upon a division of the services to be rendered or the responsibility assumed. It is contemplated that a co-counsel situation would exist where a division of responsibility is based on, but not limited to, the following: (a) based upon geographic considerations, the lawyers agree to divide the legal work, responsibility, and representation in a convenient fashion (such a situation would occur when different aspects of a case must be handled in different locations); (b) where the lawyers agree to divide the legal work and representation based on their particular expertise in the substantive areas of law involved in the litigation; or (c) where the lawyers agree to divide the legal work and representation along established lines of division, such as liability and damages, causation and damages, or other similar factors.

The trial court’s responsibility when reviewing an application for authorization of a fee division under rule 4-1.5(f)(4)(D)(iii) is to determine if a co-counsel relationship exists in that particular case. If the court determines a co-counsel relationship exists and authorizes the fee division requested, the court does not have any responsibility to review or approve the specific amount of the fee division agreed upon by the lawyers and the client.

Rule 4-1.5(f)(4)(D)(iv) applies to the situation where appellate counsel is retained during the trial of the case to assist with the appeal of the case. The percentages set forth in subdivision (f)(4)(D) are to be applicable after appellate counsel’s fee is established. However, the effect should not be to impose an unreasonable fee on the client.

To review the Ethics Informational Packet on Referral Fees, including the complete list of available packets, select this link: Ethics – Informational Packets.

Additionally, you can browse the Ethics Department’s complete Subject Index of Ethics Opinions for further guidance on other topics.

Other Resources:

• Florida Bar News – Practice Tips: Referral Fee Basics
• Florida Bar Journal – Lawyer Referral Fees and the (Unintended?) Legacy of Noris

*Note: Advisory ethics opinions are not binding.

VIEWS AND CONCLUSIONS EXPRESSED IN ARTICLES HEREIN ARE THOSE OF THE AUTHORS AND NOT NECESSARILY THOSE OF FLORIDA BAR STAFF, OFFICIALS, OR BOARD OF GOVERNORS OF THE FLORIDA BAR.