Ohio Board Advisory Opinion Op 03-003

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 2320, COLUMBUS, OH 43215-6104
(614) 644-5800 (888) 664-8345 FAX: (614) 644-5804
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2003-3
Issued June 6, 2003
[Withdrawn- by Opinion 2016-11 on December 9, 2016]
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded
by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: When lawyers not in the same law firm agree to a division of legal fees
under DR 2-107(A), based upon assuming responsibility for the representation rather than
the proportion of services performed, each lawyer must assume responsibility for the
representation through a written agreement signed by the client and each lawyer.
Regardless of whether the division of fees is to be in proportion to the services performed
or based upon assuming responsibility, each lawyer and client must sign a written
disclosure of the terms of the division and the identity of all lawyers sharing in the fee. In
addition, the total fee must be reasonable. Since heretofore, Ohio lawyers have not had
guidance on whether DR 2-107(A) requires a signed written agreement, this advice applies
prospectively to future division of fee agreements among lawyers not in the same firm.
When lawyers not in the same firm agree to a division of legal fees, each lawyer is
responsible for providing the required written notice to a client under DR 1-104 regarding
his or her own lack of professional liability insurance. Signatures of the lawyer and the
client are required on the written notice.
This opinion does not address division of fees among lawyers not in the same firm in cases
involving class actions and complex cases involving aggregation of multiple plaintiffs.
This opinion does not address legal issues regarding enforceability of fee agreements
involving a division of fees by lawyers not in the same firm.
OPINION: This opinion addresses questions regarding the requirements of notice,
disclosure and written agreement when there is a division of fees by lawyers not in the
same firm. This opinion does not address division of fees among lawyers not in the same
firm in cases involving class actions and complex cases involving aggregation of multiple
plaintiffs. This opinion does not address legal issues regarding enforceability of fee
agreements involving a division of fees by lawyers not in the same firm.
1. When lawyers not in the same firm agree to a division of legal fees
based upon assumption of responsibility rather than upon the
proportion of services performed, is each lawyer required to sign a
written agreement with the client?

Op. 2003-3 2
2. When lawyers not in the same firm agree to a division of legal fees,
is each lawyer responsible for providing written notice to the client
of the required information as to the lack of professional liability
insurance, when applicable?
Question One
When lawyers not in the same firm agree to a division of legal fees based
upon assumption of responsibility rather than upon the proportion of
services performed, is each lawyer required to sign a written agreement with
the client?
Lawyers who are not in the same law firm may share legal fees, but must comply with DR
2-107 of the Ohio Code of Professional Responsibility.
DR 2-107 DIVISION OF FEES AMONG LAWYERS.
(A) Division of fees by lawyers who are not in the same firm may be made
only with the prior consent of the client and if all of the following apply:
(1) The division is in proportion to the services performed by each
lawyer or, if by written agreement with the client, all lawyers
assume responsibility for the representation;
(2) The terms of the division and the identity of all lawyers sharing
in the fee are disclosed in writing to the client;
(3) The total fee is reasonable.
(B) [Omitted].
(C) [Omitted].
For purposes of DR 2-107(A), lawyers not in the same firm includes lawyers sharing office
space and lawyers maintaining separate law practices within the same building. See Ohio
SupCt, Bd Comm’rs on Griev & Disc, Op. 91-9 (1991) and Op. 91-5 (1991).
Under DR 2-107(A), lawyers not in the same firm may divide legal fees in one of two
ways. The division may be either in proportion to the services each lawyer performs, or by
assumption of responsibility unrelated to the proportion of services performed. In either
circumstance, there must be prior consent of the client and written disclosure to the client
of the terms of the division and the identity of the lawyers sharing in the fee. When the
division of fee is unrelated to the proportion of services each lawyer performs, there is an
additional requirement that each lawyer assume responsibility for the representation by
written agreement with the client.
It is implicit in the rule that the written disclosure of the terms of the division and the
identity of the fee-sharing lawyers and the agreement to assume responsibility be signed
by all the parties to the agreement—each fee-sharing lawyer and each client. However, it

Op. 2003-3 3
is not necessary that the parties to the agreement sign in the presence of each other; for
example, a client may wish to take the agreement home to review, consider, and sign.
However, to avoid misunderstanding, each lawyer and each client should retain a copy of
the completed document signed by all the parties.
The ethical requirement that the division of fee agreement be a written agreement signed
by each lawyer and each client complements the statutory requirement that a lawyer and a
client sign a written contingent fee contract.
R.C. § 4705.15 (B) If an attorney and a client contract for the provision of
legal services in connection with a claim that is or may become the basis of
a tort action and if the contract includes a contingent fee agreement, that
agreement shall be reduced to writing and signed by the attorney and the
client. The attorney shall provide a copy of the signed writing to the client.
Ohio Rev. Code Ann. § 4705.15 (West 1998).
Because “assume responsibility” under DR 2-107(A) is undefined in the Ohio Code of
Professional Responsibility, the Board takes the opportunity to address the meaning in this
opinion. In advising upon the meaning of “responsibility” under the ABA Model Rule
1.5(e), the Standing Committee on Ethics and Professional Responsibility of the American
Bar Association expressed the view that “responsibility” has the same meaning in the Code
as in the Model Rules.
The [ABA] Committee is of the opinion that assumption of responsibility
does not require substantial services to be performed by the lawyer since
assumption of responsibility is the alternative to a division of fees in
proportion to services performed. The Committee is also of the opinion that
assumption of “joint responsibility for the representation” includes
assumption of responsibility comparable to that of a partner in a law firm
under similar circumstances, including financial responsibility, ethical
responsibility to the extent a partner would have ethical responsibility for
the actions of other partners in a law firm in accordance with Rule 5.1
[Responsibilities of Partners, Managers, and Supervisory Lawyers], and the
same responsibility to assure adequacy of representation and adequate client
communication that a partner would have for a matter handled by another
partner in the firm under similar circumstances.
ABA, Informal Op. 85-1514 (1985).
This Board agrees that “assume responsibility” under DR 2-107(A) includes financial
responsibility as well as ethical responsibility to assure adequate representation and
adequate client communication. A lawyer who assumes responsibility should be available
to both the client and the other fee-sharing lawyer as needed throughout the representation
and should remain knowledgeable about the progress of the legal matter. “It is the ongoing
protection of the client’s interests by the referring lawyer that justifies the referring lawyer
receiving a fee that is beyond the proportion of the services actually provided by that
lawyer.” Wisconsin Bar, Formal Op. E-00-01.

Op. 2003-3 4
In conclusion, the Board advises as follows. When lawyers not in the same law firm agree
to a division of legal fees under DR 2-107(A), based upon assuming responsibility for the
representation rather than the proportion of services performed, each lawyer must assume
responsibility for the representation through a written agreement signed by the client and
each lawyer. Regardless of whether the division of fees is to be in proportion to the services
performed or based upon assuming responsibility, each lawyer and client must sign a
written disclosure of the terms of the division and the identity of all lawyers sharing in the
fee. In addition, the total fee must be reasonable. Since heretofore, Ohio lawyers have not
had guidance on whether DR 2-107(A) requires a signed written agreement, this advice
applies prospectively to future division of fee agreements among lawyers not in the same
firm.
Question Two
When lawyers not in the same firm agree to a division of legal fees, is each
lawyer responsible for providing written notice to the client of the required
information as to the lack of professional liability insurance, when
applicable?
Ohio lawyers who do not maintain a required level of professional liability insurance must
disclose this information and provide written notice to the client pursuant to DR 1-104 of
the Ohio Code of Professional Responsibility, adopted effective July 1, 2001. The only
exceptions from this disclosure requirement are for governmental lawyers and in-house
counsel.
DR 1-104. DISCLOSURE OF INFORMATION TO THE CLIENT.
(A) A lawyer shall inform a client at the time of the client's engagement of
the lawyer or at any time subsequent to the engagement if the lawyer
does not maintain professional liability insurance in the amounts of at
least one hundred thousand dollars per occurrence and three hundred
thousand dollars in the aggregate or if the lawyer's professional liability
insurance is terminated. The notice shall be provided to the client on a
separate form set forth following this rule and shall be signed by the
client.
(B) A lawyer shall maintain a copy of the notice signed by the client for five
years after termination of representation of the client.
(C) The notice required by division (A) of this rule shall not apply to a
lawyer who is engaged in either of the following:
(1) Rendering legal services to a governmental entity that employs the
lawyer;
(2) Rendering legal services to an entity that employs the lawyer as in-
house counsel.
NOTICE TO CLIENT

Op. 2003-3 5
Required by DR 1-104
Ohio Code of Professional Responsibility
Pursuant to DR 1-104 of the Ohio Code of Professional Responsibility, I
am required to notify you that I do not maintain professional liability
(malpractice) insurance of at least $100,000 per occurrence and $300,000
in the aggregate.
_____________________
Attorney's Signature
CLIENT ACKNOWLEDGEMENT
I acknowledge receipt of the notice required by DR 1-104 of the Ohio Code
of Professional Responsibility that [insert attorney's name] does not
maintain professional liability (malpractice) insurance of at least $100,000
per occurrence and $300,000 in the aggregate.
_____________________
Client's Signature
_____________________
Date
Lawyers not in the same firm who agree to divide legal fees are subject to the disclosure
requirement of DR 1-104. Each lawyer is responsible for providing this notice to a client
regarding his or her own lack of professional liability insurance. Even if a lawyer assumes
responsibility for a legal representation in a fee-sharing agreement, rather than performing
most of the legal services, that lawyer is still subject to the disclosure requirement.
In conclusion, the Board advises as follows. When lawyers not in the same firm agree to
a division of legal fees, each lawyer is responsible for providing the required written notice
to a client under DR 1-104 regarding his or her own lack of professional liability insurance.
Signatures of the lawyer and the client are required on the written notice.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the Bar
of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of
Professional Responsibility, the Code of Judicial Conduct, and the Attorney’s Oath
of Office.