Ezel / Ethics Opinions / NYSBA
NYSBA 2019-10-03

Can a retiring lawyer who hands over clients' wills to another attorney collect a referral fee when those wills turn into estate work?

Short answer: Only if the retiring lawyer assumes joint responsibility for the new representation under Rule 1.5(g), which requires keeping active attorney registration; a lawyer in 'retired' status or who has resigned cannot share the fee because the lawyer can no longer provide legal services.
Currency note: this opinion is from 2019
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 Not binding precedent.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.

NYSBA Ethics Opinion 1172: Retired Lawyer's Referral Fee on Transferred Wills

Short answer: The opinion concludes that a lawyer who, on retiring, transferred clients' original wills to another lawyer for safekeeping may request and accept a referral fee if those wills lead to new estate work, but only if the retiring lawyer assumes joint responsibility for the new representation under Rule 1.5(g), and that is possible only if the lawyer keeps active attorney registration rather than moving to "retired" status or resigning.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's 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.

Plain-English summary

A practicing attorney about to retire transferred several original wills the attorney had drafted to a custodial attorney (a former colleague now at another firm), because the inquirer's firm no longer handles wills and estate matters. The inquirer asked whether, if those wills evolve into estate work for the custodial attorney, the custodial attorney may pay the inquirer a referral fee equal to a percentage of the fee the custodial attorney earns. Because the committee does not opine on the conduct of a lawyer other than the inquirer, it reframes the question as whether the inquirer may ask for or accept such a fee (Rule 1.5(g) applies to both payor and recipient; Rule 8.4(a) bars inducing another to violate the Rules).

On the merits, the committee explains that merely forwarding a client to another lawyer is not a proper basis for fee splitting. Rule 1.5(g) permits dividing a fee with a lawyer outside the firm only if the division is in proportion to services performed or, by a writing given to the client, each lawyer assumes joint responsibility; the client agrees in a writing after disclosure of the split and each share; and the total fee is not excessive. Since the retired inquirer will perform no services on the new matter, the only available path is assuming joint responsibility, which Comment [7] to Rule 1.5 describes as financial and ethical responsibility as if the lawyers were partners.

Whether the inquirer can assume joint responsibility depends on the inquirer's registration status. The opinion lays out the three options a lawyer leaving active practice has with the Office of Court Administration: continued registration (paying the biennial fee and completing CLE, which allows continued representations); "retired" status under 22 NYCRR section 118.1(g) (exempt from fee and CLE but may render legal services only without compensation); and voluntary resignation (the filer is no longer an attorney). Because Rule 5.4(a) bars sharing legal fees with a nonlawyer, and because a lawyer can assume joint responsibility only if able to provide legal services to the client (citing N.Y. State 745, 334, 609, and 1160), only continued registration lets the inquirer assume joint responsibility and meet Rule 1.5(g)(1). The committee also notes that Rule 1.17 (sale of a law practice) does not apply, because the inquirer is not selling a practice; the inquirer simply transferred will files in exchange for safekeeping.

In practice

Under this opinion, a retiring New York lawyer who transferred clients' wills to another lawyer may collect a referral fee on resulting estate work only by assuming joint responsibility for that representation under Rule 1.5(g), with the client's written consent after disclosure and a non-excessive total fee. The opinion holds that joint responsibility requires the ability to provide legal services, so the retiring lawyer must keep active "continued registration"; a lawyer in "retired" status (who may work only without compensation) or one who has resigned cannot share the fee, because sharing it would amount to fee-splitting with a nonlawyer under Rule 5.4(a). The opinion notes Rule 1.17's sale-of-practice route is unavailable on these facts because no practice was sold.

Common questions

Q: Can a retiring lawyer get a cut of fees from wills handed to another attorney?

A: Per the opinion, only by assuming joint responsibility for the new representation under Rule 1.5(g), with the client's written consent after disclosure and a non-excessive fee. A bare referral is not enough.

Q: Why does the lawyer's registration status matter?

A: Per the opinion, joint responsibility means being able to provide legal services. Only "continued registration" allows that; "retired" status permits only uncompensated work, and a resigned lawyer is no longer an attorney, so neither can share the fee without violating Rule 5.4(a)'s bar on fee-splitting with a nonlawyer.

Q: Could the lawyer use the sale-of-practice rule (Rule 1.17) instead?

A: Per the opinion, no, not on these facts. Rule 1.17 does not apply because the inquirer is not selling all or part of a practice; the inquirer only transferred will files in exchange for safekeeping.

Background and rules framework

The opinion applies New York Rule 1.5(g), which permits fee division between lawyers in different firms only on proportional services or a written assumption of joint responsibility, plus client consent and a non-excessive fee, with Comment [7] defining joint responsibility. Rule 5.4(a) bars sharing legal fees with a nonlawyer, and Rule 8.4(a) bars inducing another lawyer to violate the Rules. Rule 1.17 governs the sale of a law practice. These correspond to ABA Model Rules 1.5, 5.4, 8.4, and 1.17. The opinion ties the analysis to the three registration paths under 22 NYCRR section 118.1.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 1.5(g) (and Comment [7]); 1.17; 5.1; 5.4(a); 8.4(a)
  • ABA Model Rules 1.5, 5.4, 8.4, 1.17 (analogues)

Statutes:

  • 22 NYCRR section 118.1(g) (attorney "retired" registration status)

Other opinions cited:

  • N.Y. State 1160 (2019): no fee-sharing with a New York resident not admitted to practice in New York where it would be unauthorized practice
  • N.Y. State 961 (2013): retiring lawyer's contingent payment on collected fees under Rule 1.17
  • N.Y. State 1035 (2014); 1002 (2014): obligations of a lawyer who receives wills on purchase of a practice or as executor
  • N.Y. State 745 (2001); 334 (1974); 609 (1990): joint responsibility unavailable where the other lawyer cannot provide legal services
  • N.Y. State 414 (1975): mere forwarding of a client is not a proper basis for fee splitting

See also

Source