(concurring in part, dissenting in part).
I respectfully dissent because the court divines a genuine issue of material fact where there is none and otherwise presumes to water-down by application of a substantial compliance analysis a professional rule established by the supreme court.
Minn.R.Prof. Conduct 1.5(e) provides:
A division of fee between lawyers who are not in the same firm may be made only if:
(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;
(2) the client is advised of the share that each lawyer is to receive and does not object to the participation of all the lawyers involved; and
(3) the total fee is reasonable.
(Emphasis added).
At oral argument, counsel for appellants had no choice but to admit that Koch was never advised of the share that Hollender would receive. While appellants argue that this rule infraction was insubstantial, I disagree. The plain language of the rule mandates that all three requirements be met or fee division is prohibited. A violation of the rule is thus unquestionably established and there is absolutely no genuine issue of material fact on that point. Moreover, there is no indication in the record that Hollender’s alleged 1/3 fee was in proportion to his services. Hollender’s death in June 1992 was preceded by at least seven months of no contact between Hollender and Eggen regarding the Koch litigation. Even though all the medical defendants had been served with process 18 months before Hollender’s death, in her affidavit, the lead attorney for the medical defendants stated that she had no contact whatsoever with Hollender.
I understand that a violation of the Rules of Professional Conduct cannot give rise to a private action against an attorney. L & H Airco, Inc. v. Rapistan Corp., 446 N.W.2d 372, 380 (Minn.1989); see also Scope, Minn. R.Prof. Conduct. This case, however, involves the issue of whether an alleged contract for the division of fees is enforceable, even though it violates the Rules of Professional Conduct. In Rossman v. 740 River Drive, 308 Minn. 134, 241 N.W.2d 91 (1976), the supreme court stated that
public policy requires that freedom of contract remain inviolate except only in cases when the particular contract violates some principle which is of even greater importance to the general public.
Id. at 136, 241 N.W.2d at 92. As an example, contingent fee arrangements in divorce cases have been held void as against public policy. Baskerville v. Baskerville, 246 Minn. 496, 504, 75 N.W.2d 762, 768 (1956).
A client has an unrestricted right to agree with his or her attorney as to compensation for services and the manner and measure of payment. Burns v. Valene, 298 Minn. 257, 260, 214 N.W.2d 686, 689 (1974); Minn.Stat. § 549.01 (1996). By not being advised as to the share Hollender would receive, Koch was *813denied this right. I conclude that the alleged division of fee agreement between Eggen and Hollender violates public policy as expressed in rule 1.5 and is thus unenforceable. See Barna, Guzy & Steffen, Ltd. v. Beens, 541 N.W.2d 354, 356 (Minn.App.1995) (contract which violates law or public policy is void), review denied (Minn. Feb. 27, 1996).1
Finally, it is inappropriate for this court to dilute the plain language of a professional rule established by the supreme court. Construction of its own rules involving public policy is the prerogative of the supreme court. If the lesser standard of substantial compliance applies to rules governing the practice of law in this state, it is for the supreme court to say so.
I otherwise concur with the court that the district court erred in concluding that the election of remedies doctrine barred Christensen’s declaratory judgment action.
. Appellants argue that they have been deprived of the benefit of Eggen’s file to see if there were additional communications between Eggen and Koch regarding the alleged division of fee agreement. After Christensen noticed Eggen's deposition, the district court stayed discovery pending the outcome of Eggen's dispositive motion. Appellants did not request a stay of Eggen’s summary judgment motion under Minn.R.Civ.P. 56.06 to pursue additional discovery to enable possible presentation, by affidavit, of facts essential to justify their opposition to Eggen's motion for summary judgment. If Christensen felt unable to defend properly against the summary judgment motion, she had the burden of requesting that the district court reopen discovery under rule 56.06. She did not do so.