Can a lawyer who took over a case from a lawyer who was later disbarred share the fee with the disbarred lawyer for work done before the disbarment?

Plain-English summary

A lawyer, before his disbarment, had acted for a claimant who became a plaintiff in a litigated matter: he investigated the case, referred it to the inquiring lawyer for trial, and helped prepare for litigation. He was then disbarred, and the inquiring lawyer was about to conclude the case. The inquiry asked whether it was proper to send a referral fee to the disbarred lawyer.

The committee gave three points. First, no "referral fee" as such is proper, whether or not the recipient is disbarred; Canon 34 permits dividing fees only with another lawyer and only on a division of service and responsibility. Second, a lawyer should not accept case referrals directly from a disbarred lawyer, though he may take over matters the disbarred lawyer can no longer continue when the request and fee arrangement come from the client. Third, where a lawyer succeeds a disbarred lawyer, he may divide the fee with the disbarred lawyer to the extent the disbarred lawyer realistically and fairly earned it for services and responsibility before, but not after, his disbarment.

Currency note

The Fourth District Court of Appeal later 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). The Florida Bar appends this caution to the opinion, so the page is treated as modified.

This opinion was issued in 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 34 on division of fees. Fee division is now governed by Rule 4-1.5 of the Rules Regulating The Florida Bar, and the bar on sharing fees with non-lawyers by Rule 4-5.4 (Model Rules 1.5 and 5.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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: Could the lawyer pay the disbarred lawyer a flat referral fee for sending over the case?

A: No. The committee said no referral fee as such is proper, whether or not the recipient is disbarred, because Canon 34 allowed dividing fees only with another lawyer based on a division of service and responsibility.

Q: What portion of the fee could the disbarred lawyer receive?

A: Only the part he realistically and fairly earned for services and responsibility rendered before his disbarment; the committee said nothing could be paid for work after disbarment.

Q: Can a lawyer take over a case the disbarred lawyer can no longer handle?

A: The committee said a lawyer should not accept referrals directly from a disbarred lawyer, but may undertake matters the disbarred lawyer cannot continue when the request and fee arrangement come from the client.

Background and rules framework

The opinion applied the former Canon 34, which barred dividing fees for legal services except with another lawyer on a basis of divided service and responsibility. That subject is now addressed by Rule 4-1.5 of the Rules Regulating The Florida Bar (fees, including division of fees between lawyers) and Rule 4-5.4 (professional independence; sharing fees with non-lawyers); the Model Rule analogues are Rules 1.5 and 5.4. The opinion's reasoning rests on the disbarred lawyer's status and the timing of the services rendered.

Citations and references

Rules of Professional Conduct:

• Canon 34 [Canons of Professional Ethics; see current Rules 4-1.5 and 4-5.4]
• Additional Rule 12

Cases:

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

See also

• FL Bar Ethics Op. 72-16: Fee Share With a Suspended Co-Counsel
• FL Bar Ethics Op. 68-19: No Fee Division With a Witness Attorney
• FL Bar Ethics Op. 66-37: Sharing Probate Fees With a Will Drafter

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-20/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-20.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-20
April 4, 1966
Advisory ethics opinions are not binding.
A lawyer who was associated in a litigated matter with another lawyer at the time of the other lawyer's disbarment may, upon conclusion of the case, share the fee with the disbarred lawyer to the extent realistically and fairly earned by him for services and responsibility before (but not after) 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).
Canons: 34; Additional Rule 12
Chairman Kittleson stated the opinion of the committee:
A member of The Florida Bar has requested the Committee's advice on a question of sharing a fee with a disbarred lawyer. We understand the circumstances to be these. A lawyer, prior to his disbarment, acted as attorney for a claimant who became a plaintiff in a litigated matter. He investigated the case, then referred it to the inquiring lawyer for trial, and assisted the latter in preparing for litigation. Thereafter, the lawyer was disbarred. As the plaintiff's attorney, the inquirer is now about to conclude the case. His inquiry is as to the propriety of sending a referral fee to the disbarred lawyer for services rendered.
The Committee has considered a similar question on earlier occasions. First, the Committee holds that no "referral fee," as such, is proper, whether or not the recipient is disbarred. Canon 34 clearly provides that no division of fees for legal services is proper, except with another lawyer, based upon a division of service and responsibility. Secondly, the Committee has advised that 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 continue because of the disbarment, where the request comes from, and fee arrangements are made with, the client. This is probably not directly relevant to this question, because here apparently the lawyer accepted the referral, and established an attorney-client relationship with the client, before the other lawyer's disbarment. Thirdly, the Committee has advised that where a lawyer succeeds a disbarred lawyer in representing a client, the successor lawyer may divide the fee with the disbarred lawyer to the extent realistically and fairly earned by the disbarred lawyer for services and responsibility before (but not after) his disbarment.