Ezel / Ethics Opinions / NYSBA
NYSBA 2018-12-14

After a solo lawyer dies and the firm is dissolved, can the lawyer who took over the cases pay part of the fees to the deceased lawyer's estate?

Short answer: Only in narrow circumstances. Because an estate is a nonlawyer, fees may go to it only under a Rule 5.4(a) exception, chiefly to compensate for legal services the deceased actually rendered before death, or to satisfy a court judgment.
Currency note: this opinion is from 2018
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.
Disclaimer: Advisory only. Not binding precedent.
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 at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 1159: Sharing fees with a deceased lawyer's estate

Short answer: After the deceased lawyer's firm is dissolved, the lawyer who continued the cases may pay the estate only what a Rule 5.4(a) exception allows, primarily a portion fairly representing legal services the deceased rendered before death, or whatever a court orders.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A solo lawyer who wholly owned a personal-injury firm died without any succession plan or fee agreement. The estate held the deceased lawyer's interest for a time while a former associate kept serving the firm's clients and took on new ones, then the estate dissolved the firm rather than selling it. The associate opened a new firm and continued representing the former clients. The estate then sought a share of the fees earned in matters that originated with the old firm.

The committee starts with Rule 5.4(d): a lawyer may not practice in a firm in which a nonlawyer holds an interest, but Rule 5.4(d)(1) lets a fiduciary of a deceased lawyer's estate hold that interest for a reasonable period during administration, so the associate could properly keep the practice running in the interim. Once the firm is dissolved, the question is governed by Rule 5.4(a), which bars sharing legal fees with a nonlawyer. Because the estate is not a lawyer, fees from the pending matters cannot be shared with it unless an exception applies.

The opinion works through the two candidate exceptions. Rule 5.4(a)(1) (post-death payments under an agreement with the lawyer's firm) does not apply, because the deceased owner never made such an agreement. Rule 5.4(a)(2) applies only "to a limited extent": a lawyer completing a deceased lawyer's unfinished business may pay the estate the portion of total compensation that fairly represents the services the deceased actually rendered. That reaches matters the deceased worked on before dying, but not matters undertaken after death. The committee follows N.Y. State 1128 (2017) on this point and notes it again declined to decide whether merely signing or filing a retainer counts as a "service rendered."

The committee adds that it does not interpret law outside the Rules, so it takes no position on whether the estate has a contractual or other legal claim to the fees. It observes that nothing in the Rules requires a lawyer to defy a court judgment: if the estate sued and obtained a judgment for a share of fees, satisfying that judgment would be ethically permissible notwithstanding Rule 5.4.

In practice

Under this opinion, once the deceased owner's firm is dissolved, a lawyer who continued its matters may pay the estate only the Rule 5.4(a)(2) portion that fairly represents legal services the deceased performed before death, and nothing for matters begun after death. The committee notes that the proportional share for an unfinished matter cannot be fixed until the matter concludes, while a quantum meruit figure for the deceased's completed work can be calculated sooner. A payment that goes beyond the deceased's pre-death services would be an improper division of fees with a nonlawyer under Rule 5.4(a). The committee separately recognizes that complying with a court's judgment for fees, if the estate obtains one, does not violate the Rules.

Common questions

Q: Can I pay a deceased lawyer's estate a share of fees from cases I took over after the lawyer died?

A: Not for matters begun after the death. Rule 5.4(a)(2) only allows paying the estate for legal services the deceased actually rendered before dying; fees from matters undertaken after death cannot be shared with the estate (Opinion 1159 ¶ 6).

Q: What if the deceased lawyer left no agreement about post-death fee payments?

A: Then the Rule 5.4(a)(1) exception is unavailable. That exception requires an agreement the lawyer made with the firm or an associated lawyer; without one, only the 5.4(a)(2) compensation-for-services route remains (¶ 5).

Q: If the estate sues me and wins, can I pay the judgment without violating Rule 5.4?

A: Yes. The committee sees nothing in the Rules that requires a lawyer to defy a court judgment, so satisfying a judgment the estate obtains for a share of fees is ethically permissible even though Rule 5.4 would otherwise bar the payment (¶ 8).

Background and rules framework

The opinion interprets New York Rule 5.4 (Model Rule 5.4), which protects a lawyer's professional independence by barring fee sharing with and firm ownership by nonlawyers, along with its enumerated exceptions for post-death payments and for completing a deceased lawyer's unfinished business. It also touches Rule 5.4(d)(1)'s allowance for an estate fiduciary to hold a deceased lawyer's interest during administration, and Rule 1.17 (Model Rule 1.17) on the sale of a law practice, which the committee notes was the alternative the estate did not pursue.

Citations and references

Rules of Professional Conduct:

  • New York Rule 5.4(a) (Model Rule 5.4): no sharing of legal fees with a nonlawyer, subject to exceptions
  • New York Rule 5.4(a)(1): post-death payments under an agreement with the firm
  • New York Rule 5.4(a)(2): payment to a deceased lawyer's estate for services the deceased rendered
  • New York Rule 5.4(d)(1): estate fiduciary may hold a deceased lawyer's interest during administration
  • New York Rule 1.17 (Model Rule 1.17): sale of a law practice
  • New York Rule 1.5(g) (Model Rule 1.5): division of fees among lawyers

Other opinions cited:

  • N.Y. State 1128 (2017): fees from a deceased lawyer's referred contingent cases
  • N.Y. State 961 (2013): sale of a law business under Rule 1.17
  • Phil. Op. 92-1 (1992): no referral fee to a deceased lawyer's estate for services not started in the lawyer's lifetime
  • N.Y. City Op. 2018-5 (2018): courts do not always enforce Rule 5.4 in fee litigation against lawyers

See also

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