CI-835
October 30, 1982
SYLLABUS
A lawyer or law firm may employ another lawyer to appear in court on behalf of a former client when scheduling conflicts prevent the personal appearance of the employing lawyer on the following conditions:
- Full disclosure of the employment is made to the client.
- Full disclosure is made to the client that a fee will be paid to the assisting lawyer.
- The fee paid to the assisting lawyer is made in proportion to the services performed and the responsibility assumed.
- The total fee paid to all lawyers is not excessive.
- The client consents to the employment of the assisting lawyer and to the fee paid.
References: MCPR DR 2-106, DR 2-107(A)(2), DR 5-107(A) and (B); CI-227, CI-373, ABA Op 1393.
TEXT
A lawyer asks about the propriety of retaining the services of an outside law firm or other individual lawyer to appear "specifically" for clients in those limited situations where the inquirer has conflicting court appearances scheduled.
There is no ethics opinion directed specifically to the question raised. MCPR Canon 2 states that a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available, and MCPR Canon 5 states that a lawyer should exercise independent professional judgment on behalf of a client.
MCPR DR 2-107(A) states:
"(A) A lawyer shall not divide a fee for legal services with another lawyer who is not a partner in or associate of his law firm or law office unless:
"(1) The client consents to employment of the other lawyer after a full disclosure that a division of fees will be made.
"(2) The division is made in proportion to the services performed and responsibility assumed by each.
"(3) The total fee of the lawyers does not clearly exceed reasonable compensation for all legal services they rendered the client.
MCPR DR 5-107(A) and (B) deal with the question of influence on a lawyer's professional judgment by one other than the client, and it states:
"(A) Except with the consent of his client after full disclosure, a lawyer shall not:
"(1) Accept compensation for his legal services from one other than his client.
"(2) Accept from one other than his client anything of value related to his representation of his employment by his client.
"(B) A lawyer shall not permit a person who recommends, employees, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services."
A client is entitled to full disclosure of the circumstances surrounding the employment and payment of another lawyer who is involved in the client's case, and the client must consent to the arrangement and its terms. Any division of fees must be made in proportion to the services performed and the responsibility assumed by the assisting lawyer. MCPR DR 2-107(A)(2). The total fee of both lawyers is subject to the provisions of DR 2-106. See CI-227, CI-373, ABA Op 1393. While DR 5-107(B) prohibits a lawyer from permitting professional judgment to be directed by "a person," this code provision contemplates persons other than those the client has retained to represent him or her. Accordingly, it would not be ethically inappropriate for the first firm to direct the lawyer it retains in a manner consistent with the client's wishes.