Can a lawyer pay a referral fee to a lawyer who has since taken 'retired' registration status with the Office of Court Administration?
NYSBA Ethics Opinion 1201: Sharing a Referral Fee With an OCA-Retired Lawyer
Short answer: The opinion concludes that a lawyer may pay a referral fee to a lawyer who later took "retired" registration status with the Office of Court Administration (OCA) if that lawyer assumed joint responsibility for the referred matter.
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 personal injury lawyer settled a wrongful death contingency matter that had come from another, unaffiliated lawyer's referral. The unwritten agreement split the statutory fee by a fixed formula, without regard to work performed, and the referring lawyer had agreed at the outset to assume joint responsibility and did some early work. During the case the referring lawyer changed OCA registration to "retired" (under which a lawyer may not be compensated for legal services rendered while retired, but may render services for no compensation and remains a member of the bar). The lawyer asks whether the referral fee may still be paid.
The committee treats the question narrowly, assuming a valid fee-sharing agreement exists (its enforceability is a question of law, citing Benjamin v. Koeppel, 85 N.Y.2d 549 (1995)). Rule 1.5(g) permits dividing a fee with a lawyer outside the firm if the division is proportional to services or, by a writing to the client, each lawyer assumes joint responsibility. Because the split here rests on joint responsibility rather than proportional work, the issue turns on what "joint responsibility" means for an OCA-retired lawyer. Comment [7] equates it with the financial and ethical responsibility of partners, and the committee reads it to coincide with the Rule 5.1(a) and 5.1(c) supervisory duty, a role a retired lawyer can fulfill by remaining available for consultation and overseeing the matter's compliance with the Rules.
The committee then corrects two prior opinions. It modifies N.Y. State 1172 (2019), which had said joint responsibility required continued OCA registration: because an OCA-retired lawyer remains a fully licensed member of the bar, Rule 5.4(a) (no fee-sharing with non-lawyers) is inapposite, and such a lawyer can perform the supervisory services that joint responsibility requires. It declines to decide whether the particular referring lawyer here met the standard, holding only that an OCA-retired lawyer may, in some circumstances, bear the joint responsibility Rule 1.5(g) contemplates.
In practice
Under this opinion, a New York lawyer may share a legal fee with a referring lawyer who has taken OCA "retired" status, provided that lawyer assumed (and did not disclaim) joint responsibility for the matter under Rule 1.5(g). The opinion holds that an OCA-retired lawyer is still a member of the bar, so Rule 5.4(a) does not bar the split, and that joint responsibility can be satisfied by a supervisory role akin to a partner's under Rules 5.1(a) and 5.1(c), such as remaining available for consultation and keeping abreast of the matter. Per the opinion, whether a particular retired lawyer's role met that standard is fact-specific and left undecided.
Common questions
Q: Can you pay a referral fee to a lawyer who retired their registration mid-case?
A: Per the opinion, yes, if that lawyer assumed joint responsibility for the matter under Rule 1.5(g); OCA-retired status does not by itself bar the fee share.
Q: Doesn't Rule 5.4(a) prohibit sharing fees with a retired lawyer?
A: No. Per the opinion, an OCA-retired lawyer remains a fully licensed member of the bar, so Rule 5.4(a) (which addresses sharing fees with non-lawyers) does not apply.
Q: What does "joint responsibility" require of a retired lawyer?
A: Per the opinion, it means the financial and ethical responsibility of a partner (Comment [7]), satisfied by a supervisory role under Rules 5.1(a) and 5.1(c), such as staying available for consultation and overseeing compliance.
Background and rules framework
The opinion interprets New York Rule 1.5(g) (division of fees among unaffiliated lawyers), Rule 5.4(a) (sharing fees with non-lawyers), and Rule 1.17(a) (sale of a law practice and the meaning of "retirement"), informed by the supervisory duties in Rules 5.1(a) and 5.1(c). These correspond to ABA Model Rules 1.5, 5.4, 1.17, and 5.1.
Citations and references
Rules of Professional Conduct:
- New York Rules of Professional Conduct 1.5(g) and Cmt. [7]; 5.4(a); 1.17(a); 5.1(a), 5.1(c)
- ABA Model Rules 1.5, 5.4, 1.17, 5.1 (analogues)
Cases:
- Benjamin v. Koeppel, 85 N.Y.2d 549 (N.Y. 1995), registration status and enforceability of fee-sharing agreements
Other opinions cited:
- N.Y. State 1172 (2019): modified; joint responsibility and OCA registration
- N.Y. State 961 (2013): supervisory role and joint responsibility
- N.Y. State 1168 (2019): "retirement" under Rule 1.17 is geographic
- ABA Formal Ops. 474 (2016) and 487 (2019): joint responsibility under Model Rule 1.5
See also
- NY State Bar Op. 1218: Sharing Legal Fees With a Former Associate in Public Office
- NY State Bar Op. 1213: Paying an Online Lawyer-Matching Service That Recommends
- NY State Bar Op. 1211: Probate Counsel Fees as a Disbursement After a Client's Death
Source
- Landing page: https://nysba.org/ethics-opinion-1201/