Fee-Splitting Under the Hawai‘i Rules of Professional Conduct
What you need to know about fee-splitting under Hawaii’s rules.
Fee Sharing Ethics in Hawaii
Many lawyers—especially those practicing outside the state—don’t realize that Hawaiʻi’s fee sharing rules are far more restrictive than those in many other jurisdictions. In states like California, lawyers can often split fees with little more than written client disclosure and consent. But Hawaiʻi Rules of Professional Conduct (“HRPC”), Rule 1.5(f) imposes strict conditions that must be satisfied before attorneys in different law firms can share legal fees.
Failing to comply with Hawaii’s lawyer referral fee rules can expose attorneys to serious professional and financial consequences, including fee forfeiture, discipline by the Office of Disciplinary Counsel (ODC), and malpractice risk.
Proportionality Required
The defining feature of Hawaiʻi’s attorney fee sharing rules is proportionality. Under HRPC Rule 1.5(f), the division of legal fees must be proportional to the work actually performed by each lawyer.
Hawaiʻi is not a “pure referral fee” state. That means a lawyer can’t collect a share of the fee just for referring the case. To be compensated, each attorney must provide meaningful legal services that advance the matter.
This is especially relevant in Hawaii personal injury and contingency fee cases. A lawyer who only performs client intake or administrative tasks cannot ethically claim one-third of the fee unless the value of their contribution justifies that share.
Assuming Liability: Joint Responsibility Is Mandatory
In addition to proportionality, lawyers sharing fees in Hawaii must also assume joint responsibility for the representation. That duty cannot be waived or assigned away.
Both attorneys must remain actively involved in ensuring that the representation complies with the Hawaiʻi Rules of Professional Conduct and that the client’s objectives are being met. This joint responsibility agreement must be documented in writing and signed by the client.
Importantly, this isn’t just an ethics rule—it’s a malpractice exposure issue. Joint responsibility means both attorneys may be held accountable if something goes wrong. If co-counsel is negligent, both malpractice insurance policies may be on the hook. So, referring lawyers should only work with competent, trustworthy co-counsel.
Disclosure and Consent
Hawaiʻi Rule 1.5(f) also requires that clients be informed of and consent to all participating attorneys in the fee-sharing arrangement. Although the rule doesn’t mandate written consent, it is strongly recommended that you include this disclosure in your written joint responsibility agreement to avoid disputes down the line.
Clients also have the right to veto any participating lawyer or firm, and all lawyers involved must honor their choice. Under Hawaii ethics rules, a client’s right to choose counsel is paramount.
Reasonable Fee
Even if all other requirements are met, lawyers cannot share fees unless the total fee charged to the client is reasonable. This requirement aligns with HRPC Rule 1.5(a), which prohibits attorneys from charging excessive or unreasonable fees.
Determining what is “reasonable” is a fact-intensive inquiry, especially in contingency fee cases. Factors such as the complexity of the matter, time invested, and results achieved all play a role. If you’re unsure whether your proposed fee complies with Hawaiʻi legal ethics rules, consult experienced ethics counsel before finalizing the arrangement.
Consequences of Non-Compliance
The risks of noncompliance with Hawaiʻi fee splitting rules are real. They include:
Disciplinary action by ODC, up to and including loss of your license;
Disgorgement of your fee, even if legal services were provided; and
Legal malpractice liability;
In short, failing to comply with HRPC Rule 1.5(f) can damage your case, your license, and your bottom line.
Need more help?
At Little Legal, we have extensive experience in Hawaiʻi legal ethics and discipline defense. Our founding lawyer, Ryan Little, served as a Deputy Disciplinary Counsel at ODC before entering private practice. While at ODC Mr. Little supervised hundreds of investigations and prosecuted several high-profile cases.
If you’re facing a Hawaiʻi legal ethics or professional responsibility issue, we’d be delighted to assist. No client’s too big, no problem’s too small.
Contact Little and let us help you “Do the right thing” today.
