Can a lawyer pay co-counsel who was suspended mid-case a share of the awarded fee for the work done before the suspension?

Plain-English summary

A referee in bankruptcy appointed two attorneys as counsel for the trustee. After both had performed substantial services, one was suspended from the practice of law by the Supreme Court of Florida. The other attorney asked whether he could properly pay the suspended lawyer a portion of the fee awarded for the representation, based on work done before the suspension.

The committee said it had previously approved sharing compensation under these circumstances, citing Florida Opinions 64-17 and 66-20. It reasoned that the suspension of a lawyer does not void all earned compensation, and concluded the proposed division of fee appeared to be proper.

Currency note

The Florida Bar's note on this opinion states that, after its adoption, 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, citing Santini v. Cleveland Clinic Florida, 65 So.3d 22 (Fla. 4th DCA 2011). This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct, and it applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rule 4-1.5 and Santini before relying on anything here.

Common questions

Q: Could the remaining lawyer pay the suspended co-counsel for pre-suspension work?

A: Under this 1972 opinion, yes. The committee found the suspension did not void all earned compensation and that the proposed fee division appeared proper.

Q: Is that still good law?

A: Not without qualification. The bar's note records that the Fourth District Court of Appeal later held, in Santini v. Cleveland Clinic Florida (Fla. 4th DCA 2011), that a lawyer who withdrew from a contingent-fee case upon being suspended is not entitled to a fee.

Citations and references

Rules of Professional Conduct:

• CPR (Code of Professional Responsibility) generally; current fee-division rule is Rule 4-1.5

Cases:

• Santini v. Cleveland Clinic Florida, 65 So.3d 22 (Fla. 4th DCA 2011), a suspended lawyer who withdrew from a contingent-fee case is not entitled to a fee (per the bar's note)

Other opinions cited:

• Florida Opinions 64-17 (since withdrawn), 66-20

See also

• FL Bar Ethics Op. 76-29: No Fee Division With a Discharged Prior Attorney
• FL Bar Ethics Op. 74-47: Fee Division With a Terminally Ill Referring Lawyer's Estate
• FL Bar Ethics Op. 77-1: Retiring Lawyer File Handoff and Fee Division

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-16/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-16-1-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-16
April 21, 1972
Advisory ethics opinions are not binding.
An attorney may properly pay his suspended co-counsel a portion of the fee awarded for their representation based upon work done prior to the suspension.
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).
Opinions: 64-17, 66-20
Chairman Clarkson stated the opinion of the committee:
A referee in bankruptcy appointed two attorneys as counsel for the trustee in a bankruptcy proceeding. After both attorneys had performed substantial services in the cause, one was suspended from the practice of law by the Supreme Court of Florida. The other attorney seeks our advice whether he may properly pay the suspended lawyer a portion of the fee awarded for this representation based upon work done prior to his suspension.
We have previously approved the sharing of compensation under the stated circumstances. See Florida Opinions 64-17 [since withdrawn] and 66-20. The suspension of a lawyer does not void all earned compensation. The proposed division of fee appears to be proper.