Can a lawyer who is co-executor and estate counsel share trial counsel's fee in a wrongful-death case without doing the work?

Plain-English summary

A lawyer who served as co-executor and attorney for a decedent's estate asked whether he could share in the fee of trial counsel retained, with the other executor's consent, to prosecute a wrongful-death action, and whether such sharing was proper where the forwarding lawyer exercised no responsibility and shared in none of the work. The committee applied EC 2-22 and DR 2-107(A), which permit a fee division between lawyers not in the same firm only if the client consents after full disclosure that a division will be made, the division is in proportion to the services performed and responsibility assumed by each, and the total fee does not clearly exceed reasonable compensation.

The committee was explicit that the forwarding attorney must be an active participant in the case to receive a portion of the fee. His share must be based on his share of responsibility and the work actually performed; where no responsibility is assumed and no work performed, any fee sharing is improper. It cited N.Y. State 338 (1974), N.Y. State 317 (1973), and N.Y. City 854 (1962) on that point.

Because the co-executor had consented to the fee-splitting arrangement, the committee concluded it would not be improper to divide the legal fees in accordance with those principles, that is, only to the extent the lawyer-co-executor actually participated.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (fee division between lawyers is now governed by Rule 1.5(g)). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a forwarding or referring lawyer take a share of the fee for doing nothing?

A: Under this opinion, no. The committee held that where no responsibility is assumed and no work is performed, any fee sharing is improper; the share must track the lawyer's actual services and responsibility.

Q: What three conditions did the committee require for a valid fee division?

A: Per the opinion and DR 2-107(A): the client consents after full disclosure, the division is proportional to services performed and responsibility assumed, and the total fee does not clearly exceed reasonable compensation.

Q: Whose consent mattered here?

A: The committee treated the other executor's consent to the fee-splitting arrangement as the client consent required, so the division was permissible to the extent the lawyer-co-executor actually participated.

Background and rules framework

The opinion applies EC 2-22 and DR 2-107(A) of the then-current New York Code, governing division of fees between lawyers who are not partners or associates. The current analogue is Rule 1.5(g), which likewise conditions fee division on proportionality (or joint responsibility), client consent in writing, and a reasonable total fee.

Citations and references

Rules of Professional Conduct:

• MR 1.5 (fees; division of fees among lawyers)
• NY EC 2-22; DR 2-107(A)

Other opinions cited:

• N.Y. State 338 (1974): forwarding lawyer must perform work and assume responsibility
• N.Y. State 317 (1973): same
• N.Y. City 854 (1962): same

See also

• NY State Bar Op. 414: Agreeing in advance on a division of fees
• NY State Bar Op. 443: A contingent fee to collect past-due support

Source

• Landing page: https://nysba.org/opinion-408/