Inquiry is made concerning the propriety of an attorney participating in a case after his client contracts on a contingency fee basis with a medical consultant to evaluate the medical aspects of the case and assist the attorney in preparing the medical issues involved in the case, including preparing for depositions, trial, cross examinations and locating appropriate medical expert witness to testify on behalf of the client.
The inquiring attorney represents the client in a medical malpractice suit. The use of expert medical testimony is essential. The client has no money to pay such experts being heavily in debt due to medical expenses. A medical consulting firm has offered its services on a contingent fee basis. The medical expert witnesses would be obtained by the consulting firm. The medical expert witness would be paid a reasonable fee plus expenses by the client regardless of the outcome of the case.
The contingency fee agreement between the client and the consulting firm is completely independent and separate and apart from the contingency fee agreement between the client and the attorney.
The client is unable to employ a medical consultant on a non-contingency fee basis and the services of the medical consultant are absolutely essential to the client's case of action. The
medical consultant will not testify in the case.
Informal Opinion 1375 of the American Bar Association Committee on Ethics and Professional Responsibility states in part as follows, which is adopted and incorporated in this opinion, to-wit:
Nothing in the Code of Professional Responsibility proscribes a lawyer from recommending that a client contract with a lay person on a contingent fee basis so long as: (1) the lay person or agency is not to engage in the unauthorized practice of law, DR 3-101(A); (2) the lawyer does not share legal fees with the lay person, or agency, DR 3-102(A)(1)(3); and (3) the contingent fee is not payable for the testimony of the lay person or agency, DR 7-109(C)(1)(3).
However, a lawyer who recommends such an arrangement to a client must at all times retain full control of the litigation which has been entrusted to him by the client and may not abdicate to another his ultimate professional responsibility for evaluating the case or the course to be followed, EC 5-21. In addition, under such an arrangement the lawyer obviously owes a corresponding duty to the client to exercise reasonable control over expenses incurred--so that neither expenses unauthorized by the lawyer or client nor those of dubious value to the client's cause are expended---.
It would be unethical for a lawyer to sign the assignment which is part of the contract--if, in fact the arrangement were made subterfuge for fee-splitting between a lawyer and layperson.
It appears from the facts stated herein, which are assumed to be true, that there is no impropriety in the attorney participating in the case subject to the conditions and limitations stated herein above.
This 16th day of December, 1985.
Henry H. Hancock
Edwin C. Townsend
W. J. Flippin
APPROVED AND ADOPTED BY THE BOARD