Opinion 91-28
(November 1991)

You have asked this Committee whether it would violate the Rules of Professional Conduct if you were to accept a referral fee from a psychologist to whom you referred a client for the purpose of evaluating a case or preparing a case for trial.

DISCUSSION


It is the opinion of the Committee that the acceptance of a referral fee from a psychologist, or any other possible expert or expert witness to whom a lawyer refers a matter or a client for evaluation, would violate Rule 1.7(b) of the Rules of Professional Conduct, which rule provides as follows:

1.7(b) - A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibility to another client or to a third person, or by the lawyer's own interest, unless:

(1) The lawyer reasonably believes the representation will not be adversely affected; and

(2) The client consents after full disclosure and consultation.

There are two examples of how representation of the client may be materially limited by a lawyer's own interest if that lawyer were to accept referral fees from an expert witness. First, the lawyer's selection of an expert or expert witness could well be motivated not by the best interests of the client but by the fact that that individual is willing to send the lawyer a referral fee. Second, if, in the course of litigation the relationship between the lawyer and the expert or expert witness were revealed, that revelation could significantly reduce the credibility of the evaluation and testimony provided by the expert or expert witness.

We also call your attention to the portion of the comment to Rule 1.7 entitled, "Lawyer s Interest" which states: "A lawyer may not allow related business interests to affect representation, for example, by referring clients to an enterprise in which the lawyer has an undisclosed interest." While the statement is not directly on point, the Committee believes it is instructive.

Our concern is that the proposed arrangement could compromise your independence as counsel. This important principle of independence, embodied in other Rules, including 1.8(f) and 5.4, is the premise on which this opinion is based.

Incidentally, we understand that a psychologist's payment of a referral fee may constitute a violation of Principle, 6(f) of the Code of Ethics applicable to psychologists. The Code can be found in Sec. 41.61 of Title 49 of the Statutes of the Commonwealth of Pennsylvania. If that is your participating with the psychologist in the violation of his or her Code of Ethics could constitute a violation Rule 8.4 of own Rules.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.