Ohio Board Advisory Opinion Op 16-011

This nonbinding advisory opinion is issued by the Ohio Board of Professional Conduct in
response to a prospective or hypothetical question regarding the application of ethics rules
applicable to Ohio judges and lawyers. The Ohio Board of Professional Conduct is solely
responsible for the content of this advisory opinion, and the advice contained in this opinion
does not reflect and should not be construed as reflecting the opinion of the Supreme Court
of Ohio. Questions regarding this advisory opinion should be directed to the staff of the Ohio
Board of Professional Conduct.
OHIO BOARD OF PROFESSIONAL CONDUCT
OPINION 2016-11
Issued December 9, 2016
Division of Fees By Lawyers Not in the Same Firm
Syllabus of Opinion:
Lawyers who practice in association with each other, but not in a partnership, of
counsel, or other permissible legal arrangement are not considered lawyers in the "same
firm" for purposes of the division of fees under Prof.Cond.R. 1.5(e). Lawyers who
informally practice in association with each other must comply with the restrictions
contained in Prof.Cond.R. 1.5(e) when dividing fees.
Lawyers may divide fees in proportion to the services performed or by assuming
joint responsibility for the matter. When lawyers who are not in the same firm agree to a
division of legal fees, a written contingent fee agreement signed by the lawyers and the
client under Prof.Cond.R. 1.5(c)(1) and the client’s written consent to the division of fees
under Prof.Cond.R. 1.5(e)(2) are required.
Each lawyer in a shared fee arrangement must give notice to the client as required
by Prof.Cond.R. 1.4(c), if the lawyer does not maintain professional responsibility
insurance in the amounts specified in the rule, or if the lawyer’s insurance has been
terminated.

OHIO BOARD OF PROFESSIONAL CONDUCT
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
Telephone: 614.387.9370 Fax: 614.387.9379
www.supremecourt.ohio.gov/boards/boc
PAUL M. DE MARCO
CHAIR
RICHARD A. DOVE
DIRECTOR
WILLIAM J. NOVAK
VICE- CHAIR
D. ALLAN ASBURY
SENIOR COUNSEL
HEIDI WAGNER DORN
COUNSEL
OPINION 2016-11
Issued December 9, 2016
Withdraws Opinions 91-05, 2003-3
Division of Fees By Lawyers Not in the Same Firm
SYLLABUS: Lawyers who practice in association with each other, but not in a partnership,
of counsel, or other permissible legal arrangement are not considered lawyers in the "same
firm" for purposes of the division of fees under Prof.Cond.R. 1.5(e). Lawyers who
informally practice in association with each other must comply with the restrictions
contained in Prof.Cond.R. 1.5(e) when dividing fees.
Lawyers may divide fees in proportion to the services performed or by assuming
joint responsibility for the matter. When lawyers who are not in the same firm agree to a
division of legal fees, a written contingent fee agreement signed by the lawyers and the
client under Prof.Cond.R. 1.5(c)(1) and the client’s written consent to the division of fees
under Prof.Cond.R. 1.5(e)(2) are required.
Each lawyer in a shared fee arrangement must give notice to the client as required
by Prof.Cond.R. 1.4(c), if the lawyer does not maintain professional responsibility insurance
in the amounts specified in the rule, or if the lawyer’s insurance has been terminated.
QUESTIONS PRESENTED1:
(1) Whether lawyers who practice in association with each other, but not in a
partnership, of counsel, or other permissible legal relationship, would be
considered lawyers in the "same firm" for purposes of the division of fees.
1 The questions presented in this advisory opinion are the same or substantially similar to the questions
presented in Adv.Op. 91-05 and Adv.Op. 2000-4.

Op. 2016-11 2
(2) Whether lawyers not in the same firm agree to division of legal fees based
upon shared responsibility, rather than on a proportion of services
performed, are both required to sign a written agreement with the client.
(3) Whether each lawyer in an arrangement to divide fees is required to provide
written notice of the lack of professional malpractice insurance.
APPLICABLE RULES: Prof.Cond.R. 1.0, 1.4, and 1.5.
OPINION: The requester is one of a group of nine attorneys who are not in a partnership
or organized as a law firm, but who collectively operate an office in which each lawyer uses
separate letterhead. The lawyers cooperate and assist each other in litigation matters and
share fees based upon the proportion of work performed by each lawyer. Each client is
advised of and introduced to all lawyers in the group who may be assisting in the case.
Prof.Cond.R. 1.5(e) expressly permits the division of a fee in a single billing between
two lawyers not in the same firm, subject to certain conditions. The term “firm” is defined
as “a lawyer or lawyers in a law partnership, professional corporation, sole proprietorship,
or other association authorized to practice law...” Prof.Cond.R. 1.0(c). A firm is different
from an informal affiliation of solo practitioners who share office space or have agreed to
share certain aspects of a law office. Adv.Op. 91-9. The practice arrangement described by
the requesting attorney is not a firm as defined by Prof.Cond.R. 1.0(c), but an arrangement
with lawyers separate from that of a firm. An “of counsel” relationship between a lawyer
and a law firm is considered the “same firm.”
Fees can be divided by lawyers not in the same firm only if four conditions are
satisfied: 1) the division of fees is in proportion to the services performed by each lawyer or
the lawyer assumes joint responsibility for the representation and agrees to be available for
consultation with the client; 2) the client has given his or her written consent; 3) a written
closing statement is signed by the client and each lawyer; and 4) the total fee is reasonable.
Prof.Cond.R. 1.5(e). The Board recommends that each lawyer and client retain a copy of
the completed document signed by all parties. See also R.C. 4705.15 (written fee agreement
in contingent cases.)

Op. 2016-11 3
A lawyer who does not maintain the required level of professional liability insurance
must disclose this information and provide written notice to the client pursuant to
Prof.Cond.R. 1.4(c). Consequently, each lawyer in a shared fee arrangement who does not
maintain professional liability insurance in the minimum amounts provided in the rule
must provide notice to the client. The notice must be signed by both the client and the
lawyer. Even if a lawyer assumes joint responsibility for the representation, rather than
performing legal services, the lawyer is subject to the notice requirement.
CONCLUSION: Lawyers who practice in association with other lawyers, but not in a
partnership, of-counsel or other legal relationship, are not considered lawyers within the
“same firm” and therefore must fully comply with the restrictions regarding division of
fees contained within Prof.Cond.R. 1.5(e). Lawyers who agree to assume responsibility for
the representation, or divide fees in proportion to the services rendered, must all sign the
written fee agreement with the client and obtain the written consent of the client. If a lawyer
dividing fees does not maintain malpractice insurance in the amounts specified in
Prof.Cond.R. 1.4(c), the lawyer must provide the requisite written notice to the client.