May a Connecticut lawyer take a referral fee after declining to represent a caller whose claim is against the lawyer's former client?

Plain-English summary

A former client called Attorney A for general advice about a motor-vehicle summons and discussed the accident. The other driver later asked Attorney A to represent her against that former client. Attorney A declined because of a conflict, referred her to Attorney B, and asked whether a referral fee was permissible.

Connecticut Rule 1.5(e) permits lawyers in different firms to divide a fee when the client receives written advice about the arrangement and each lawyer's participation, does not object, and the total fee is reasonable. Unlike the ABA model provision discussed in the opinion, Connecticut does not require proportional services or joint responsibility.

The Committee nevertheless interpreted Rule 1.5(e) to require every lawyer receiving a share to establish a lawyer-client relationship with the client paying the fee, even if that relationship covers only the referral. Because Attorney A declined the caller's representation, the caller was not Attorney A's client and Attorney A could not accept part of the fee.

The Committee did not decide whether the referral itself was permissible given duties to the former client or a prospective client, whether information from the caller could or had to be disclosed, or whether Attorney A could represent the former client in the resulting claim.

In practice

Under this opinion, holding a law license and making a referral do not by themselves qualify a lawyer to share the resulting fee. The fee recipient must have a lawyer-client relationship with the referred client and remain bound by the Rules for that relationship.

Common questions

Q: May the lawyer accept the referral fee after declining the caller's case?

A: No. The Committee concluded that declining the representation left no lawyer-client relationship on which a Rule 1.5(e) fee share could rest.

Q: Must a Connecticut referral fee be proportional to services performed?

A: No. The opinion states that Connecticut Rule 1.5(e) does not require proportional services or joint responsibility.

Q: Can the referral itself create the required lawyer-client relationship?

A: Yes, the opinion recognizes that the relationship may be limited to the referral. Here, however, Attorney A expressly declined to represent the caller.

Q: Did the Committee decide whether referring a claim against a former client was permissible?

A: No. That question, disclosure issues, and possible representation of the former client were expressly outside the opinion.

Background and rules framework

Rule 1.5(e) governs fee divisions between lawyers in different firms. The Committee read its references to the client and a single billing for multiple lawyers together with Rule 7.2(c)'s general ban on paying for recommendations to require a lawyer-client relationship for every participating lawyer.

Citations and references

Connecticut Rules of Professional Conduct:

• Rules 1.5(e) and 7.2(c)

Cases:

• Bloomenthal v. Halstrom, No. 951773B, 10 Mass. L. Rptr. 8 (Mass. Super. Ct. Mar. 16, 1999)
• Evans & Luptak, PLC v. Lizza, 251 Mich. App. 187, 650 N.W.2d 364 (2002)
• Holstein v. Grossman, 246 Ill. App. 3d 719, 616 N.E.2d 1224 (Ill. App. Ct. 1993)
• Ryder v. Farmland Mutual Insurance Co., 248 Kan. 352, 807 P.2d 109 (1991)

Other opinions cited:

• Illinois State Bar Association Opinion 90-26
• Massachusetts Bar Association Ethics Opinion 80-10
• State Bar of Michigan Informal Ethics Opinion RI-116
• Maine Ethics Opinion 103
• Philadelphia Bar Association Ethics Opinion 2008-4

See also

• CT Informal Op. 20-02: Out-of-state referral fees
• ISBA Ethics Op. 21-04: Out-of-state referral fee
• VSB Op. 1739: Referral fee without responsibility

Source

• Landing page: Connecticut Bar Association Informal Ethics Opinions
• Original PDF: Informal Opinion 13-04