Can a lawyer take over cases from a disbarred lawyer, and can the lawyer pay or split a fee with the disbarred lawyer for work done before disbarment?

Plain-English summary

A member described an attorney who had recently been disbarred. Before disbarment, that attorney had forwarded certain cases for the member to try; some had since settled or terminated, and others were still pending. The disbarred attorney had also forwarded cases for trial after receiving notice of disbarment but before the disbarment order became final. The member asked whether he could ethically pay the disbarred attorney a "referral fee" for work done before disbarment, and whether he could ethically undertake the cases forwarded after the notice was issued.

The committee noted that in Opinion 63-17 it had declined to opine for a lawyer suspended pursuant to disbarment proceedings about the scope of his activities, but found it could properly respond here. It explained that forwarding fees as such are prohibited; Canon 34 allowed a division of fees only with another lawyer based on services rendered or responsibility shared. Assuming the "referral fee" was properly based on a division of service or responsibility, the committee unanimously concluded that a lawyer may share with the disbarred attorney any fee the latter earned for work done before disbarment, but under no circumstances should the disbarred attorney be compensated for any act done after disbarment. Drawing on its Opinion 64-17 (since withdrawn), the committee said the preferable practice would be for the disbarred attorney to return his former clients' files and leave them free to select counsel without any reference or recommendation. A lawyer in good standing should not accept referrals of cases directly from a disbarred lawyer, but may undertake matters the disbarred lawyer was handling when the disciplinary action was taken, provided the request and the fee arrangement come directly from the client.

Currency note

The Florida Bar has appended a note to this opinion stating that, after its adoption, the Fourth District Court of Appeal held in Santini v. Cleveland Clinic Florida, 65 So.3d 22 (Fla. 4th DCA 2011), that a lawyer who withdrew from a contingent fee case upon being suspended is not entitled to a fee; the fee-division portion of this opinion should be read in light of that decision. This opinion was also issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 34 of the Canons of Professional Ethics; the division of fees is now governed by Rule 4-1.5 and the prohibition on sharing fees with a nonlawyer by Rule 4-5.4 of the Rules Regulating The Florida Bar (Model Rules 1.5 and 5.4). Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer accept case referrals directly from a disbarred lawyer?

A: No. The committee said a lawyer in good standing should not accept referrals of cases directly from a disbarred lawyer.

Q: Can a lawyer take over the disbarred lawyer's pending cases?

A: Yes, where the request for the representation comes directly from, and the fee arrangement is made directly with, the client, not the disbarred lawyer.

Q: Can the lawyer pay the disbarred lawyer a fee?

A: Only for services rendered before disbarment. Assuming the division is properly based on service or responsibility, the lawyer may share a fee the disbarred attorney earned before disbarment, but the disbarred attorney should never be compensated for any act done after disbarment.

Background and rules framework

The opinion applied former Canon 34 of the Canons of Professional Ethics, which permitted a division of fees only with another lawyer, based on services rendered or responsibility shared, and prohibited forwarding fees as such. The division of fees among lawyers is now addressed by Rule 4-1.5 and the prohibition on sharing legal fees with a nonlawyer (which a disbarred lawyer becomes) by Rule 4-5.4 of the Rules Regulating The Florida Bar (Model Rules 1.5 and 5.4). The committee relied on its Opinions 63-17 and 64-17 (the latter since withdrawn).

Citations and references

Rules of Professional Conduct:

• Canon 34 [Canons of Professional Ethics; division of fees; see current Rules 4-1.5 and 4-5.4]

Cases:

• Santini v. Cleveland Clinic Florida, 65 So.3d 22 (Fla. 4th DCA 2011), noted by the bar: a lawyer who withdrew from a contingent fee case upon suspension is not entitled to a fee

Other opinions cited:

• FL Bar Op. 63-17: committee declined to opine for a suspended lawyer on the scope of his activities
• FL Bar Op. 64-17 (since withdrawn): preferable practice for a disbarred lawyer to return client files without recommendation

See also

• FL Bar Ethics Op. 66-20: Fee Sharing With a Disbarred Lawyer
• FL Bar Ethics Op. 66-37: Sharing Probate Fees With a Will Drafter or Survivors

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-21/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-21.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 65-21
April 15, 1965
Advisory ethics opinions are not binding.
A lawyer should not accept referrals of cases directly from a disbarred lawyer, but he may undertake cases and matters that a disbarred lawyer is unable to undertake or continue because of the disbarment, where the request comes from, and fee arrangements are made with, the client. The new lawyer may divide the fee with the disbarred lawyer to the extent earned by the disbarred lawyer from professional services rendered prior to his disbarment.
Note: Subsequent to the adoption of this opinion, the Fourth District Court of Appeal held that a lawyer who withdrew from a contingent fee case upon being suspended is not entitled to a fee. Santini v. Cleveland Clinic Florida, 65 So.3d 22 (Fla. 4th DCA 2011).
Canon: 34
Opinions: 63-17, 64-17
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar requests our opinion regarding the following factual situation. An attorney has recently been disbarred. Prior to the time of disbarment, the attorney forwarded certain cases which the member seeking this opinion was to try. Some of these cases have now been settled or otherwise terminated. Others are still pending. In addition, the attorney forwarded to him cases for trial after receiving the notice of disbarment but before the order of disbarment became final. The lawyer here also inquires whether he may ethically pay to the disbarred attorney a "referral fee" for work done prior to the disbarment and, further, whether he may ethically undertake representation of the clients in connection with those cases forwarded by the attorney after notice was issued.
In its Opinion 63-17, this Committee declined to give an opinion to a lawyer who had been suspended pursuant to disbarment proceedings relative to the scope of his activities during the suspension period. In the present case, however, the Committee believes it may properly respond to this inquiry.
Forwarding fees as such are prohibited by the Canons of Professional Ethics. Canon 34 provides that no division of fees for legal services is proper except a division with another lawyer which must be based upon the service rendered and/or the responsibility shared by that lawyer in connection with the case. Assuming that the "referral fee" which is mentioned is properly based upon a division of service or responsibility, it is the unanimous view of this Committee that a lawyer may properly share with the disbarred attorney any fee which the latter earned for work done prior to the time of his disbarment. Under no circumstances, however, should the disbarred attorney receive compensation for any act done subsequent to disbarment.
In our Opinion 64-17 [since withdrawn], we dealt in part with the problem of an attorney accepting cases which were referred to him by a disbarred attorney which cases were forwarded by the attorney at the time of, or after notice of, the disbarment. There it was pointed out that the preferable practice would be for the disbarred attorney to return the files of his former clients and leave them free to select an attorney for completion of the work without any reference to or recommendation of another lawyer. The Committee adheres to the opinion. A lawyer in good standing should not accept referrals of cases directly from a disbarred lawyer. He may, however, undertake cases and matters which were being handled by the disbarred lawyer at the time the disciplinary action was taken provided the request for such representation comes directly from, and the fee arrangement is made directly with, the client.