Can an attorney who had to withdraw from a driver/passenger case because of a conflict still collect a referral fee for sending one client to a certified trial attorney?

Plain-English summary

An attorney filed suit for both the passenger and the driver of a car. A conflict developed when the defendant counterclaimed against the driver. The attorney withdrew entirely and referred one client, the driver, to a Certified Civil Trial Attorney, then asked whether he could be paid a referral fee under R. 1:39-6(d) (which permits a forwarding fee to a referring attorney in certain certified-attorney referrals).

The Committee concluded that, in this situation, a referral fee is not authorized. It relied on the Supreme Court directive (91 N.J.L.J. 81, February 8, 1968), which makes clear that where a conflict develops on a counterclaim, an attorney may not continue to represent either driver or passenger (Opinion 156). It further relied on Opinion 181, which held that the directive required withdrawal from both the driver and passenger cases and that a forwarding fee to the referring attorney was improper in that circumstance.

Currency note

This opinion was issued in 1988, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and the referenced court rules may have changed. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can an attorney collect a referral fee for a client he had to refer out due to a conflict?

A: Per the opinion, not here. Because the counterclaim conflict required withdrawal from both driver and passenger, the Committee concluded a referral fee is not authorized, following Opinion 181.

Q: Why did the conflict bar the fee?

A: The Committee cited the Supreme Court directive (via Opinion 156) that a counterclaim conflict bars continued representation of either driver or passenger, and Opinion 181's holding that a forwarding fee is improper in that situation.

Background and rules framework

The opinion turns on R. 1:39-6(d) (forwarding fees in referrals to certified attorneys) read against the Supreme Court's directive on driver/passenger counterclaim conflicts, rather than on a numbered Rule of Professional Conduct. The Committee applied its prior Opinions 156 and 181 to conclude the referral-fee mechanism is unavailable where the referral results from a disqualifying conflict.

Citations and references

Court Rules:

• R. 1:39-6(d) (forwarding fee to a referring attorney in certified-attorney referrals)

Other authority:

• New Jersey Supreme Court directive, 91 N.J.L.J. 81 (February 8, 1968)
• ACPE Opinion 156, 92 N.J.L.J. 481 (1969) (counterclaim conflict bars continued representation of driver or passenger)
• ACPE Opinion 181, 93 N.J.L.J. 492 (1970) (withdrawal from both; forwarding fee improper)

See also

• NJ ACPE Op. 616: Blanket (Aggregate) Settlement Offers
• NJ ACPE Op. 615: Representing a Plaintiff Whose Defendant Is a Relative

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp613-1.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.

121 N.J.L.J. 1037, May 19, 1988

OPINION 613

Withdrawing Attorney Claiming Referral Fee Under R. 1:39-6(d)

An attorney filed suit for both passenger and driver of a car. Conflict developed when the defendant counterclaimed against the driver.

Attorney for plaintiffs withdrew entirely and referred one client, the driver, to a Certified Civil Trial Attorney. We are asked whether under R. 1:39-6(d), this forwarding attorney may be paid a referral fee.

We conclude that in this situation, a referral fee is not authorized.

In the Supreme Court directive, set out at 91 N.J.L.J. 81 (February 8, 1968), the Court made clear that where a conflict develops on a counterclaim, an attorney may not continue to represent either driver or passenger. See our Opinion 156, 92 N.J.L.J. 481 (1969).

In our Opinion 181, 93 N.J.L.J. 492 (1970), we held that the Court Directive cited in our Opinion 156, supra, required an attorney to withdraw from both driver and passenger cases and that a forwarding fee to the referring attorney was improper.