Can a lawyer collect a finder's fee from a bank for steering client funds into its accounts, and must he disclose and hand over the fee?

Plain-English summary

An attorney asked three questions: whether a lawyer may recommend that clients' funds (personal, estate, or trust) be invested in savings accounts or certificates of a financial institution that pays him a finder's fee; if so, whether he must disclose the arrangement; and whether he must turn the finder's fee over to the client. The institution had offered a finder's fee of 2% of monies that the attorney's clients (some of whom might be executors or trustees) invested as a result of his recommendation.

Drawing on its Opinion 12 (title-insurance rebates belong to the client unless the client consents after full disclosure), former Canon 38, the ABA Code's EC 2-21 and DR 5-107, and Drinker's Legal Ethics, the Committee answered questions 1 and 2 together: a lawyer may make such a recommendation where a finder's fee would be paid, provided full disclosure is made and full and knowledgeable consent is given by the clients. As to question 3, the Committee concluded that the lawyer must either turn over the finder's fee to the clients, or account to or credit the clients with the amount, since whatever he receives from others in the service of his clients properly belongs to the clients.

Currency note

This opinion was issued in June 1970, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying former Canon 38 and its own prior opinions, treating the new ABA Code (EC 2-21, DR 5-107) as persuasive. It also predates the 1984 Rules of Professional Conduct and all later revisions. The questions about accepting compensation from a third party and about funds received for the client are now treated under RPC 1.8 and RPC 1.15. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer take a bank finder's fee for steering client money?

A: Only with full disclosure and the clients' knowledgeable consent, and even then the fee belongs to the clients.

Q: Does the lawyer keep the finder's fee?

A: No. The Committee held he must turn over or credit the fee to the clients, because whatever he receives in the service of clients belongs to them.

Q: Is turning the fee over to the client improper fee-splitting?

A: No. Relying on Drinker, the Committee treated crediting the commission to the client as proper, not as splitting a fee with a layman.

Background and rules framework

The opinion applied the rule that a lawyer may not take compensation from a third party in the service of a client without disclosure and consent, and that such compensation belongs to the client, drawing on Canon 38, EC 2-21, and DR 5-107. In current New Jersey terms the analysis falls under RPC 1.8 and RPC 1.15.

Citations and references

Rules of Professional Conduct:

• Former Canon 38, Canons of Professional Ethics; EC 2-21 and DR 5-107, ABA Code of Professional Responsibility; now MR 1.8 / 1.15 and NJ RPC 1.8 / 1.15

Other opinions cited:

• NJ ACPE Opinion 12, 86 N.J.L.J. 621 (1963)
• ABA Committee on Professional Ethics, Opinion 304 (1962); Informal Opinion C-680 (1963)
• N.Y. County Lawyers Assn., Opinion 282 (1930)

See also

• NJ ACPE Op. 293: Interest on Attorneys' Fees
• NJ ACPE Op. 326: Investing Client Trust Funds
• NJ ACPE Op. 175: Collecting Legal Fees Through a Credit-Card Plan

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp178-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

93 N.J.L.J. 461, June 25, 1970

OPINION 178

Finder's Fees Disclosure to Client

An attorney has made the following inquiries:

1. May a lawyer recommend that clients' funds, either personal, estate or trust, be invested in savings accounts or savings certificates of a financial institution, where the lawyer will be paid a finder's fee by that institution?

2. If so, must the lawyer disclose to the client the finder's fee arrangement?

3. Must the lawyer turn over to the client the finder's fee?

In this case the attorney received from a financial institution an announcement and form of contract offering to pay him a finder's fee of 2% of the monies which his clients (some of whom may be executors or trustees) invest in savings accounts or savings certificates as a result of the attorney's recommendation of that particular institution.

In our Opinion 12, 86 N.J.L.J. 621 (1963) we held that title insurance rebates belong to the client and the attorney may keep the rebate only if he obtains the consent of his client after full disclosure. To the same general effect see A.B.A. Comm. on Professional Ethics, Opinion 304 (1962).

Former Canon 38 of the Canons of Professional Ethics of the American Bar Association provides as follows:

38. Compensation, Commissions and Rebates A lawyer should accept no compensation, commissions, rebates or other advantages from others without the knowledge and consent of his client after full disclosure.

The Code of Professional Ethics was adopted by the American Bar Association on August 12, 1969, to become effective for American Bar Association members on January 1, 1970. The Code has not been adopted by the Supreme Court of New Jersey, but we review it as persuasive authority. Section EC 2-21 provides as follows:

A lawyer should not accept compensation or anything of value incident to his employment or services from one other than his client without the knowledge and consent of his client after full disclosure.

Section DR 5-107 provides as follows:

DR 5-107. Avoiding Influence by Others Than the Client. (A) Except with the consent of his client after full disclosure, a lawyer shall not:

(1) Accept compensation for his legal services from one other than his client. (2) Accept from one other than his client anything of value related to his representation of, or his employment by his client.

Drinker, Legal Ethics 96-97 (1953), states:

Two different principles are involved in the application of this Canon: first, that a lawyer shall receive no secret remuneration from the other side; second, that he must not, by accepting or bargaining for any compensation from the other side, even if fully disclosed to his client, put himself in a position which will interfere with his wholehearted duty to his client.

Full disclosure to the client solves the first difficulty unless it be that the party might not pay the commission if he thought it would go to the client, which would be solved by disclosure to the payor. In this connection, however, the committees have not always analyzed clearly the effect of the lawyer's turning over, or crediting, a commission to his client, apparently regarding this as splitting a fee with a layman in violation of Canon 34. Such, however, is not the case. Where the situation is such that the lawyer might keep it without its affecting his undivided zeal to serve his client, the fact that he gets it should unquestionably affect the size of his fee. Also, whatever he receives from others in the service of his client properly belongs to the client, to be payable to the client or credited against the lawyer's retainer or fee, whether he is employed only for the particular service, on an annual retainer, or on a full-time salary.

The Committee feels that, in answer to questions 1 and 2, a lawyer may recommend that clients' funds be invested in savings accounts, etc. where a finder's fee would be paid by an institution, provided full disclosure is made to his clients and full and knowledgeable consent is given by the clients.

The Committee feels that, in answer to question 3, a lawyer must either turn over to the clients the finder's fee, or account to or credit to his clients the amount of the rebate, or fee, since whatever he receives from others in the service of his clients properly belongs to the clients. To the same general effect, see A.B.A. Comm. on Professional Ethics, Informal Opinion C-680 (1963); N.Y. County Lawyers Assn., Committee on Professional Ethics, Opinion 282 (1930); Wise, Legal Ethics 114 (1966).