85-F-101 - Medical Consultant on contingent fee

FORMAL ETHICS OPINION 85-F-101


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.
ETHICS COMMITTEE:
Henry H. Hancock
Edwin C. Townsend
W. J. Flippin
APPROVED AND ADOPTED BY THE BOARD