UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 03-05
Rule 1.16(a) provides that a lawyer shall withdraw from the representation of a client if the lawyer is discharged. The rule is unambiguous, and the client’s right to terminate the representation is absolute absent a Court order to the contrary.Rule 1.16(d) provides that upon termination of representation, a lawyer may retain a reasonable non-refundable retainer. In S.C. Bar Ethics Advisory Op. #90-13, we stated that an inference can be drawn from 1.16(d) that a lawyer is entitled to receive the fee that he has earned upon termination of the representation. Based on several South Carolina Supreme Court and appellate court rulings, it would appear that an attorney acting in good faith should be entitled to recover a reasonable fee up to the time of termination.4
Rule 1.5(e) provides: "A division of a fee between lawyers who are not in the same firm may be made only if: (1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation; (2) the client is advised of and does not object to the participation of all the lawyers involved; and (3) the total fee is reasonable."
Under the facts presented, it would appear that the requirements of 1.5(e)(2) have been met, and nothing in the facts suggest that the requirement of 1.5(e)(3) was not also met. Thus, the 20%/80% split agreed to between Lawyers A and B must either be in proportion to the services performed OR by written agreement with the client. Absent the client’s consent, the only permissible fee split must be in proportion to the services performed by each lawyer.The issue is whether supplying Client with a copy of a letter from Lawyer B to Lawyer A confirming joint representation and the fee splitting arrangement to which Client does not object coupled with a retainer agreement between Client and Lawyer B constitutes a "written agreement with the client in which each lawyer assumes joint responsibility for the representation."
While a copy of a fee-splitting agreement may have been sent to Client, it does not appear to reach the level of the kind of agreement with the client anticipated by 1.5(e)(1). In any event, it would appear the Client does not admit to consent by virtue of his objection to any payment of fees to Lawyer A.
In S.C. Ethics Advisory Op. #98-32a, the issue was solely whether a lawyer can ethically share an earned fee with another lawyer in a manner disproportionate to the services performed without having advised client of the agreement. We answered that, where a lawyer has failed to do so, lawyer is best advised to retain the disputed funds in the lawyer’s trust account until any dispute between the client and the other lawyer is resolved. We believe the facts in this case warrant similar treatment.See Rule 1.15(c) and S.C. Bar Ethics Adv.Op. #02-07 (lawyer who is holding unearned fees received from brother of client should not unilaterally attempt to resolve issue of who is entitled to fees but should hold fees in trust until the parties reach agreement to resolve the dispute or a court determines their rights).