Quick answer
When lawyers in different firms share a fee, the arrangement is governed by each state's rules of professional conduct, and those rules differ. The common threads are client consent in writing, a reasonable total fee, and, in many states, either work on the case or shared responsibility for it.
For Referring Lawyers: How Co-Counsel and Referral Fees Work
I work with other lawyers in two directions. I take referrals in the states where I'm licensed (Nevada, Utah and Washington), and I bring in local co-counsel on product-defect cases filed elsewhere. California matters are handled together with California-licensed co-counsel. Either way, the conversation starts with the same question: what do the rules in this state allow? This article is a general overview for lawyers. It isn't an ethics opinion. Check your own jurisdiction's rules before you rely on any of it.
Las Vegas Trial Attorney — Licensed in NV, WA & UT — CA with co-counsel
What does the ABA model rule say?
Under ABA Model Rule 1.5(e), a fee may be divided between lawyers in different firms only if: The division is in proportion to the services each lawyer performs, or each lawyer assumes joint responsibility for the representation; The client agrees to the arrangement, including each lawyer's share, and the agreement is confirmed in writing; and The total fee is reasonable.
Many states start from that model and change it.
How do the states differ?
Sometimes significantly. Nevada is a good example. Its version of Rule 1.5(e) marks the first condition, about proportional services or joint responsibility, as "Reserved." What remains is client agreement to the arrangement, including each lawyer's share, confirmed in writing, and a reasonable total fee (Nevada RPC 1.5(e)).
Other states keep the model's first condition. Washington's RPC 1.5(e), for example, still requires that the division be proportional to services or that each lawyer assume joint responsibility, and its comments describe joint responsibility as financial and ethical responsibility comparable to partners. Utah and other states have their own versions, so check the rule where you practice. When two states are involved, figure out which state's rules govern before anyone signs anything.
What's the difference between co-counsel and a referral?
In practice: A referral usually means the referring lawyer hands off the case, and their continuing role depends on what their state's rules require for a fee share. Co-counsel means both lawyers stay involved and divide the work, such as one lawyer handling local practice and court appearances while the other handles investigation and trial preparation.
In states that require joint responsibility for a fee division, a referring lawyer may take on responsibility for the matter as a whole. Understand what that means before you accept a fee share.
What should be in writing?
At minimum, and subject to your state's rules: The client's written consent to the fee division, including each lawyer's share. Who does what: investigation, discovery, court appearances, trial. Who advances case costs, and how they're repaid. How communication with the client will work. What happens if a lawyer withdraws or the client changes counsel.
What about out-of-state cases?
If you're not licensed where a case must be filed, you'll typically need local counsel, and the court may require pro hac vice admission for any out-of-state lawyer appearing. That's how I handle product cases outside my licensed states: with local co-counsel on the case from the start.
If I can't take a matter, I'll tell you quickly so the client doesn't lose time.
What can't a referral fee pay for?
Fee-sharing rules are about lawyers dividing fees. Separate rules in most states restrict giving anything of value to non-lawyers for recommending a lawyer's services. Keep those two questions apart.
Frequently Asked Questions
Do I have to work on the case to receive a share?
It depends on the state. Some require proportional work or joint responsibility; others, like Nevada, don't list that condition. Check your rules.
Does the client pay more because there's a referral?
The fee division generally comes out of the total fee, which must be reasonable. The client's written consent should spell it out.
What information do you need to evaluate a referral?
The incident date, the jurisdiction, a short summary of liability and injuries, known insurance, and any deadlines you're aware of.
About the author
Frank Stucki, Esq., MBAFrank is a trial attorney licensed in Nevada, Washington, and Utah, handling personal injury, institutional abuse, and catastrophic injury cases. California and other states are handled with local co-counsel.
Talk to Frank — 702.702.BORN
If you have a case you'd like to discuss referring, call Frank directly at 702.702.BORN.
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This article is general information, not legal advice. Reading it does not create an attorney-client relationship.