Can a firm split fees on referred cases with a terminally ill referring lawyer or that lawyer's estate?

Plain-English summary

An attorney closing his office because of a terminal illness referred two cases to the inquiring law firm, which performed and assumed most of the work and responsibility. The firm asked whether it could properly divide the fees it received for those matters with the deceased attorney's estate.

The committee concluded it could, provided the division was in proportion to services performed and responsibility assumed. Citing Opinions 72-33 and 73-3, it explained that under DR 2-107(A) a division of fees between lawyers is proper only if made in proportion to the services performed and responsibilities assumed by each lawyer, bearing a reasonable relationship to that division and satisfying DR 2-107(A)(1) and (2). EC 2-22 reiterates the same principle, as does DR 3-102(A)(2), which deals with dividing fees between a lawyer who completes the unfinished legal business of a deceased lawyer and the deceased lawyer's estate.

Currency note

This opinion was issued in 1975, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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 Rules 4-1.5 and 4-5.4 before relying on any specific requirement mentioned here.

Common questions

Q: Can a firm share referred-case fees with a referring lawyer's estate?

A: The opinion concluded it may, provided the division is in proportion to the services performed and responsibility assumed by the deceased lawyer and the firm.

Q: What is the limit on the division?

A: Per the opinion, under DR 2-107(A) the division must be in proportion to services and responsibility and bear a reasonable relationship to that division, also satisfying DR 2-107(A)(1) and (2).

Background and rules framework

The opinion applied DR 2-107(A), EC 2-22, and DR 3-102(A)(2) of the former Code of Professional Responsibility, governing division of fees between lawyers and with a deceased lawyer's estate. Those subjects correspond to Model Rule 1.5(e) (division of fees between lawyers) and Model Rule 5.4 (sharing fees, including with a deceased lawyer's estate); the current Florida counterparts are Rules 4-1.5 and 4-5.4.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR DR 2-107(A)(1), 2-107(A)(2); DR 3-102(A)(2); EC 2-22 (division of fees between lawyers)

Other opinions cited:

• Florida Bar Opinions 72-33; 73-3

See also

• FL Bar Ethics Op. 76-29: No Fee Division With Discharged Counsel
• FL Bar Ethics Op. 74-43: Deceased Lawyer's Client Files

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-74-47/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-74-47-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 74-47
March 6, 1975
Advisory ethics opinions are not binding.
A law firm may properly divide fees for referred cases with a lawyer suffering from terminal illness or the lawyer's estate in proportion to the services performed by the lawyer referring the cases.
CPR: DR 2-107(A)(1), 2-107(A)(2), 3-102(A)(2) and EC 2-22
Opinions: 72-33, 73-3
Vice Chairman Sullivan stated the opinion of the committee:
This inquiry involves the question of division of legal fees.
An attorney who was closing his office and discontinuing his practice because of a terminal illness referred two cases to the law firm submitting this inquiry. While the inquiry does not give particulars about the amount of work performed and responsibility assumed by the referring attorney and by the law firm to which the cases were referred, it is clear that most of the work and responsibility was performed and assumed by the latter.
We are asked whether the law firm to which the matters were referred may properly divide the fees it received for handling those matters with the estate of the deceased attorney.
In Opinion 72-33 and again in Opinion 73-3, the Committee stated that under DR 2-107(A) a division of fees between lawyers is proper only if the division is made in proportion to the services performed and responsibilities assumed by each lawyer. That division should bear a reasonable relationship to the division of services and responsibility, and, of course, the requirements of DR 2-107(A)(1) and (2) must also be met. EC 2-22 reiterates the same principle as does DR 3-102(A)(2), which deals with division of fees between a lawyer who completes unfinished legal business of a deceased lawyer and the deceased lawyer's estate.
The Committee, then, is of the opinion that the firm to which the cases were referred may divide the fees it received with the deceased attorney's estate provided that division is in proportion to services performed and responsibility assumed by the deceased lawyer and the firm to which he referred the cases.