QUESTION: Attorney’s firm had an agreement that while the partners were together and working in the same firm, they executed agreements between them which addressed the handling of contingent fee cases in the event one of the partners left the firm and the client(s) elected that the departing attorney should continue to handle his or her case. The agreement provided that in such an event, the firm and the departing attorney would each be responsible for fifty percent of the expenses of the litigation until conclusion, and in the event of a recovery, the firm and departing attorney would share the contingent fee on a 50/50 basis. Can the firm ethically continue to fund the expenses on these cases on a 50/50 basis and thereafter share fees on a 50/50 basis? Is there preferred documentation other than that which was used that could be utilized to permit the firm to honor its agreements?

ANSWER: The arrangement Attorney has described is permissible under Rule 4 dash–1.5(e), if Attorney has followed all of the requirements of that rule. This arrangement would not be under the proportionality approach to that rule. Therefore, it would be necessary for the firm and the departing attorney to comply with the requirement that “by written agreement with the client, each lawyer assumes joint responsibility for the representation.” The joint responsibility includes all forms of professional responsibility for the representation.

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