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OBA Ethics Counsel

Ethics Opinion No. 69

Adopted April 27, 1934

The Board is in receipt of the following inquiry:

"The City of A has filed suit against a number of defendant oil companies for the recovery of damages for pollution of its source of water supply and has employed firms B and C, attorneys, to prosecute said case, and has entered into a written contract with the said attorneys, which contract provides that the attorneys shall receive a contingent fee for their services in said case, and further provides that the city shall pay and advance the necessary court costs and the expenses of obtaining water tests and analysis. The attorneys B and C have found it advisable and necessary, in order to properly prepare said case and to present same to the court and jury, to secure the services of X, a pollution expert and engineer. The city is without funds with which to hire X on a cash fee basis. X is willing to work for a contingent fee, but said city is insisting that said fee be paid out of the contingent fee to be received by B and C, the attorneys in the case, and not out of the money to be received by said city, and said city is willing for X's services to be obtained on the above conditions. X was a total stranger to the city officials and to B and C at the time of their employment by said city and at the time said suit was filed and was not consulted by B and C until after the filing of said suit. Would it be proper for B and C, the attorneys in the case, to enter into a contract with X, the pollution engineer whereby the contingent fee of X shall be paid out of the contingent fee of B and C?

or

Would it be proper for the city A to employ X upon a contingent fee basis and for B and C to authorize said city to pay contingent fee of X out of any contingent fee that might be due B and C in said case?"

In response:

For obvious reasons the Board is of the opinion:

First: That it would not be proper for the attorneys to contract with the engineer, agreeing to pay him a contingent fee out of the contingent fee of the lawyers.

Second: That, likewise, it would not be proper for the city to employ the engineer on a contingent fee basis, the amount of the contingent fee to be deducted from the amount of the contingent fee of the lawyers employed by the city.