Can one lawyer pay another a referral fee for sending over the driver of a car while the referring lawyer keeps the passenger from the same crash?

Plain-English summary

The inquirer asked whether it is proper for an attorney to agree to forward a referral fee to another attorney who has referred the driver of a motor vehicle to the inquirer while retaining the passenger as the referring attorney's own client. The stated basis for the fee was the referring attorney's work investigating the case, personally or through a full-time investigator.

The Committee pointed to the Supreme Court's directive of February 8, 1968 (91 N.J.L.J. 81), which provides that, with exceptions not pertinent here, an attorney should not represent both the driver of a car and his passenger against the driver of another car. It concluded that the proposed referral fee violates the spirit, if not the letter, of that directive, and is accordingly improper.

Currency note

This opinion was issued in July 1970, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying the Canons of Professional Ethics and a Supreme Court directive. It also predates the 1984 Rules of Professional Conduct and all later revisions. The conflict and fee-referral principles it applied are now treated under RPC 1.7 and RPC 1.5(e). Treat this page as historical context, not current guidance.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 lawyers split a driver and passenger between themselves and share a fee?

A: No. The Committee held that a referral fee tied to sending the driver to one lawyer while keeping the passenger violates the spirit of the directive against representing both.

Q: Does the referring lawyer's investigation work justify the fee?

A: No. Even though the stated basis was the referring attorney's investigation work, the Committee found the arrangement improper.

Background and rules framework

The opinion applied the Supreme Court's directive against an attorney representing both a driver and passenger against another driver, treating a referral-fee arrangement that divides the two as a circumvention of that directive. In current New Jersey terms the analysis falls under RPC 1.7 and RPC 1.5(e).

Citations and references

Court directives:

• Supreme Court directive, 91 N.J.L.J. 81 (February 8, 1968) (representation of driver and passenger)

See also

• NJ ACPE Op. 188: Representing a Driver and Passenger Despite a Waiver
• NJ ACPE Op. 273: Sharing a Forwarding Fee With a Suspended Attorney

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp181-1.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. 492, July 9, 1970

OPINION 181

Conflict of Interest Representing Passengers - Fee for Referring Driver

The inquirer requests our opinion as to whether it is proper for an attorney to agree to forward to another attorney a referral fee where the latter attorney has referred the driver of a motor vehicle to the inquirer, retaining the passenger as his client. It is stated that the basis for the referral fee is to be the work done by the referring attorney in investigating the case either personally or through the services of a full-time investigator.

The Supreme Court's directive appearing at 91 N.J.L.J. 81 on February 8, 1968 states that, with exceptions not here pertinent, an attorney should not represent both the driver of a car and his passenger against the driver of another car.

It is clear that the proposed referral fee violates the spirit if not the letter of the directive and accordingly is improper.