Ezel / Ethics Opinions / NYSBA
NYSBA January 8, 2015

Can a New York lawyer accept part of a real estate broker's commission as a referral fee instead of charging the client for legal work on the deal?

Short answer: No. A lawyer may not accept a share of the broker's commission as a referral fee in lieu of charging the client a legal fee, even with the client's informed consent, because the lawyer's financial interest in the broker's commission interferes with the independent judgment the client is owed.

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This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
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About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A lawyer represented an estate in selling real property through a broker the lawyer had recommended to the executors. The broker offered to pay the lawyer 25% of the broker's commission as a referral fee, and the lawyer proposed to accept it in lieu of charging the estate any legal fee for the transaction (¶ 1, ¶ 2).

The committee answered no. It relied on a long line of opinions holding that a lawyer may not act as both lawyer and broker in the same real estate transaction, with or without client consent and whether or not the lawyer charges for legal services (¶ 3, citing N.Y. State 916, 493, 340, and 208). The committee quoted N.Y. State 916 for the rationale: the broker's personal and financial interest in closing the transaction interferes with the lawyer's ability to render independent legal advice consistent with Rule 1.7(a), and the problem stems not from the legal fee but from the lawyer's separate financial interest in compensation for the non-legal (brokerage) side (¶ 3).

The committee held that this rationale applies whenever the lawyer has a financial interest in the broker's commission, whether or not the lawyer is acting as a broker. The disabling conflict is the lawyer's pecuniary interest in the broker's success and resulting commission, which interferes with the duty to exercise independent professional judgment for the client. That the estate beneficiaries might benefit from the arrangement does not cure the conflict, any more than a lawyer-broker's waiver of a legal fee would, and the result is the same whether the broker's offer came before or after the transaction closed (¶ 4, ¶ 5).

In practice

Under the New York rule as it stood at the time of the opinion, the opinion holds that conduct matching this fact pattern, a lawyer taking a slice of the broker's commission as a referral fee in place of a legal fee, is prohibited under Rule 1.7(a). The committee identifies the controlling factor as the lawyer's financial interest in the broker's commission, which it treats as a non-consentable conflict here: client informed consent does not make it permissible, and the timing of the broker's offer does not change the analysis. A benefit to the client (a waived legal fee, or a benefit to estate beneficiaries) does not remove the conflict.

Common questions

Q: Can a lawyer take a referral fee out of the broker's commission if the lawyer charges the client nothing for legal work?

A: No. The committee concluded a lawyer may not accept a portion of the broker's commission in place of charging a legal fee, because the lawyer's interest in the commission interferes with independent judgment under Rule 1.7(a) (¶ 5).

Q: Does the client's informed consent make it permissible?

A: No. The committee stated the arrangement is impermissible even with the client's informed consent (¶ 5).

Q: Does it matter that the estate or its beneficiaries might come out ahead?

A: No. The committee held that a benefit to the beneficiaries does not remedy the conflict, just as a lawyer-broker waiving a legal fee does not (¶ 4).

Q: Does it matter whether the broker offered the fee before or after closing?

A: No. The committee reached the same conclusion whether the offer was made before or after the transaction was completed (¶ 4).

Background and rules framework

The opinion interprets New York Rule 1.7(a), corresponding to ABA Model Rule 1.7, which addresses conflicts arising from a lawyer's own financial interests. The committee applied its established rule that a lawyer's pecuniary interest in a real estate broker's commission is a disabling conflict in the same transaction, drawing on a series of prior opinions rather than introducing new rule text.

Citations and references

Rules of Professional Conduct:

  • MR 1.7 / NY RPC 1.7(a) (conflict from the lawyer's own financial interest)

Other opinions cited:

  • N.Y. State 916 (2012): lawyer may not act as lawyer and broker in the same transaction; source of the quoted rationale
  • N.Y. State 493 (1978), N.Y. State 340 (1974), N.Y. State 208 (1971): the same prohibition under earlier authority

See also

Source

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