To: Thomas Burke
Re: In re Rose Kingsley
Issue 1: Whether Greene was a partner or an associate of Kingsley for purposes of rule 200 of the Franklin Rules of Professional Conduct.
Greene is a partner.
The reason this is important is to classify a certain temporary lawyer who is working for or with another lawyer under Rule 200 to determine what requirements apply to a fee splitting situation.
For purposes of rule 200, an associate is a lawyer who works for, rather than with, another lawyer. This can be determined by considering the totality of the circumstances including 1) supervision and 2) the compensation agreement.
First, factors that help gauge the amount of supervision are direct and indirect control of representation oversight of the temporarily engaged lawyer in legal and factual aspects of the case, control over the working environment, and the relationship with the client. In this case, Greene had two distinct roles, ones as lawyer and another as an engineering expert. The bigger reason that Greene was asking to join Kingsley was to aid her in understanding the scientific aspects of the case. When it came to the legal side of her work Kingsley strongly supervised her work because Greene was new to the legal field. Additionally, Greene worked in Kingsley’s office and she was never permitted to sit face to face with the client outside of Kingsley’s presence.
Secondly, it is important to look at the compensation agreement between the lawyers. Here, Greene and Kingsley agreed that Greene would receive 30% of Kinsley’s fee recovered from Moreno. Additionally, Greene was to receive $50 per hour as an advance to the 30% fee agreement. This indicates both a working for (associate) and working with relationship. However given that the salary ($50 per hour) was given as an advance on the main fee agreement of 30% shows that those where the true terms and much more indicative of the type or relationship they shared.
As in Chambers v. Kay it was determine that to classify the type of relationship that exists between two lawyers the more indicative evidence of the parties relationship is the compensation agreement between them.
Therefore here Greene was more of a partner than an associate to Kingsley.
Issue 2: Whether the requirements of rule 200 have been met by the fee splitting agreement between Kingsley and Greene and the communication with Moreno?
The requirements of Rule 200 have not been met.
As stated above if one is declared a partner he or she may not share in the fee obtained by the lawyer unless two requirements are met 1) the client has consented in writing thereto after a full disclosure has been made in writing that a division of fees will be made and the terms of such division and 2) the total fee charged by all lawyers is not increased solely by reason of the provision for division of fees and is not unconscionable.
The second requirement under Rule 200 has been met because there is no evidence that the total fee charged was not increased because of the splitting.
Rule 200 requires that partner have the client consent in writing thereto after a full disclosure has been made in writing that a division of fees will be made and the…