May a Connecticut lawyer for a conserved person receive a referral fee from counsel handling the client's malpractice action?
Apply this to your situation
This page answers the general question as of 2016. Ask about yours and see what the current Connecticut Rules of Professional Conduct say for your facts, with citations.
Plain-English summary
A probate-appointed lawyer represented a nonverbal client in conservatorship proceedings, recommended investigating a medical-malpractice claim, and referred the conservator to another lawyer. Connecticut Rule 1.5(e) does not require proportional services or joint responsibility, so the referring lawyer need not participate in the malpractice case to share the fee.
The referral itself creates a lawyer-client relationship, and the referring lawyer must reasonably believe the receiving lawyer is competent. The Committee concludes that neither the lawyer's conservatorship role nor the client's diminished capacity independently prohibits the referral fee.
Because the client could not communicate, Rule 1.5(e)'s written notice and nonobjection requirements must operate through the conservator if the probate court gave the conservator authority to control the litigation and retain counsel. If not, probate-court permission is required. An objection or refusal of approval prevents the fee.
In practice
Under this opinion, Connecticut permits a pure referral fee without proportional work, but the client-protection requirements remain. The person receiving notice and deciding whether to object must have authority over the litigation and hiring decision.
Common questions
Q: Must the referring lawyer work on the malpractice case?
A: No. Connecticut Rule 1.5(e) omits the Model Rule requirement of proportional services or joint responsibility.
Q: Who receives the written fee-sharing notice?
A: The conservator, if authorized to control the litigation and hire counsel; otherwise approval must come from the probate court.
Q: What if the conservator objects?
A: The referring lawyer may not accept the referral fee.
Q: Does the conserved person remain the client?
A: Yes. The opinion treats the conserved person as the real party in interest and applies Rule 1.14's direction to maintain as normal a lawyer-client relationship as possible.
Background and rules framework
Rule 1.5(e) governs fee divisions and written client notice, Rule 1.5(c) governs contingent-fee agreements, Rule 1.14 governs clients with diminished capacity, and Rule 5.4(a) bars fee sharing with nonlawyers.
Citations and references
Rules of Professional Conduct:
- Connecticut Rules 1.5(c), 1.5(e), 1.14, and 5.4(a)
- ABA Model Rule 1.5(e), contrasted with Connecticut's rule
Statutes:
- Conn. Gen. Stat. § 52-251c
Cases:
- Falvey v. O'Brien, Shafner, Stuart, Kelly & Morris, P.C., No. 543675 (Conn. Super. Ct. Nov. 12, 1998), referral fee
- Ryder v. Farmland Mutual Insurance Co., 248 Kan. 352, 807 P.2d 109 (1991), referral fee
- Lesnewski v. Redvers, 276 Conn. 526, 886 A.2d 1207 (2005), conserved person's litigation interest
- Gross v. Rell, 304 Conn. 234, 264, 40 A.3d 240 (2012), lawyer's relationship with conservator and conserved client
Other opinions cited:
- Connecticut Informal Opinion 13-04, referral creates a lawyer-client relationship
See also
- CT Informal Op. 16-03: Estate-administrator referral fee
- CT Informal Op. 20-02: Out-of-state referral fees
Source
- Landing page: Connecticut Bar Association Informal Ethics Opinions
- Original PDF: Informal Opinion 16-04
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