Can a group of lawyers agree that probate fees earned by one of them will be shared with the lawyer who drafted the will, or that lawyer's survivors?

Plain-English summary

A lawyer proposed that he and a number of other Bar members enter a contract covering situations where a will drawn by one of them is probated by another of the group "due to the absence of the draftsman," with death of the draftsman the ordinary situation contemplated. The agreement would require a reasonable division of the probate fees with the drafting counsel or his survivors, without creating any partnership. The inquirer argued such division would give economic security to non-partnership lawyers, since the will's draftsman would usually otherwise handle the estate, and candidly acknowledged Canon 34 might preclude it, asking about alternatives and a possible amendment to the Canon.

The committee found Canon 34 succinct and dispositive: no division of fees for legal services is proper except with another lawyer based on a division of service or responsibility. While sympathetic to the sole practitioner's concern for economic security, it held the proposal contrary to the Canon in several respects, principally because the division would not be based on service or responsibility, and because payments to survivors would in most cases involve division with nonlawyers. It said the policy of Canon 34 was sound and protected clients from unnecessary additional attorney fees. The committee declined to suggest alternatives, noting it could only opine on a member's proposed conduct and that the Bar's economics committees would be more useful, and added that it would view with caution any ad hoc effort to amend Canon 34 for this limited purpose.

Currency note

This opinion was issued in July 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 34 on the division of fees. Division of fees between lawyers is now governed by Rule 4-1.5 of the Rules Regulating The Florida Bar, and the prohibition on sharing fees with nonlawyers 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 Treat this page as historical context, not current guidance.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 lawyers agree to split probate fees with the will's drafter?

A: No. The committee held the proposed fee-division contract contrary to Canon 34, principally because the split would not be based on a division of service or responsibility.

Q: Why did paying the drafter's survivors raise an additional problem?

A: The committee said payments to survivors would in most circumstances involve dividing fees with persons other than lawyers, which Canon 34 did not permit.

Q: Did the committee suggest a permissible alternative?

A: No. It said it was empowered to opine only on a member's proposed conduct, declined to advance alternatives, and pointed the inquirer to the Bar's committees on the economics of practice.

Background and rules framework

The opinion applied the former Canon 34, which barred dividing fees for legal services except with another lawyer based on a division of service or responsibility. Today, fee division between lawyers is addressed by Rule 4-1.5 of the Rules Regulating The Florida Bar, and sharing fees with nonlawyers is barred by Rule 4-5.4; the Model Rule analogues are Rules 1.5 and 5.4. The committee tied Canon 34's policy to protecting the client from unnecessary additional fees.

Citations and references

Rules of Professional Conduct:

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

See also

• FL Bar Ethics Op. 68-19: Fee Split With a Witness
• FL Bar Ethics Op. 66-72: Lawyers and Credit Bureaus

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-37/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-37.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 66-37
July 18, 1966
Advisory ethics opinions are not binding.
It is not ethically proper for a group of attorneys to enter into a contractual arrangement involving wills drawn by any of the group, whereby a fee subsequently awarded or paid to a member of the group for conducting probate proceedings would be divided with the attorney drafting the will or his survivors.
Canon: 34
Chairman MacDonald stated the opinion of the committee:
A member of The Florida Bar proposes that he and a number of other members of the Bar enter into a contractual relationship governing situations involving wills drawn by one of the contracting parties, the probate of which is conducted by another of the group "due to the absence of the draftsman." It is implied that death of the draftsman is the ordinary situation contemplated. The proposed agreement would require a reasonable division of the fees awarded or paid to the counsel conducting probate proceedings with the drafting counsel or his survivors. The agreement seemingly would not create any partnership relationship among the attorneys signatory thereto. We so assume for purposes of this opinion.
It is contended that such a division of fees would provide financial security to attorneys not members of partnerships in view of the expectation that in most instances the draftsman of a will would otherwise be retained to attend to the legal problems of the estate. With candor the inquirer expresses the view that Canon 34, pertaining to division of fees, might preclude an undertaking such as the one proposed. In the event the Committee so concludes, he asks whether we might suggest alternative approaches to the problem which would be proper and requests our view as to possible amendment to Canon 34.
Canon 34 is succinct, direct, and dispositive of the principal inquiry. It provides:
No division of fees for legal services is proper, except with another lawyer based upon a division of service or responsibility.
We are sympathetic to concern for economic security on the part of the sole practitioner. However, the proposed arrangement in our judgment would be contrary to this Canon in a number of respects. Principally, it would involve a division of fees not based upon "a division of service or responsibility." Moreover, in the instances of payments to survivors it would in most circumstances involve a division with persons other than lawyers. We feel the policy of Canon 34 is sound and in essence protects the client from the hazard of unnecessary additional attorney fees.
The Committee is not empowered by the policy of the Board of Governors under which it functions to offer opinions on other than conduct proposed by a member of The Florida Bar. Hence it is not appropriate for this Committee to advance alternative suggestions. Moreover, since the roots of the problems requiring exploration for alternatives are essentially economic, we feel the services of the several committees of The Florida Bar now functioning in the area of the economics of the practice of law would be much more useful to the interested attorneys.
We do observe, however, that we would view with caution any ad hoc effort to seek amendment to Canon 34 for the limited purpose of sanctioning the arrangement now proposed. Not only are the canons now under study for general revision by a select committee of the American Bar Association, but in the past this Committee has held to the view that the canons should be general in application and ordinarily not encumbered with specialized exceptions.