Opinion 1878

The inquiry concerns whether a lawyer who anticipates bringing a class action lawsuit involving complex issues of health care may engage a consultant on a part hourly and part contingent fee basis without violating the RPC prohibiting fee splitting, where the consultant will not testify in the matter and the consultant’s fee is calculated not as a percentage of the lawyer’s fee or of the recovery but rather at a higher hourly rate contingent on success of the lawsuit.

An arrangement, in a class action, whereby a forensic consultant who will not testify in a matter and who is engaged by a lawyer on an hourly rate, a portion of which, will be paid contingent on success, does not violate the RPC prohibition against a lawyer sharing legal fees as long as it is not paid out of the lawyer’s contingent fee and, provided further, that the amount that is contingent on success is set forth in a written contingent fee agreement that specifies whether it is to be deducted before or after calculation of the lawyer’s contingent fee.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.