Can two lawyers who are not in the same firm agree up front on how to split the fee for a shared matter?
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This page answers the general question as of 1975. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The committee was asked whether attorneys who share services and responsibility for a legal matter, but are not partners or associates, may agree in advance on a particular division of fees. It applied EC 2-22 and DR 2-107(A), which permit a fee division between lawyers outside the same firm only where the client consents after full disclosure, 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 reaffirmed that a forwarding attorney must base any share on services performed and responsibility assumed, not on a bare recommendation, which former Canon 34 was meant to condemn.
On the timing question, the committee endorsed agreeing in advance. Quoting ABA 204 (1940), it noted it is desirable for lawyers to determine at the outset whether a joint fee will be charged and divided, and quoted Drinker that candor and fairness make it incumbent on a lawyer expecting a share to advise the other at the outset, with the division or its basis agreed in advance.
The committee added a caveat about later mismatch. If the lawyers agree, with the client's consent, that the forwarding attorney will receive, say, 10% and the forwardee 90%, and it turns out the forwarder performed no services and assumed no responsibility beyond selecting the correspondent, the agreement does not control. Citing ABA Inf. 936, it explained that where the actual division of services and responsibility does not warrant the agreed division of the fee, the shares must be revised in proportion to what each actually did; if the lawyers cannot agree on a revised division, that becomes a question of law, not ethics.
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 Treat this page as historical context, not current guidance.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 lawyers in different firms fix the fee split before the work is done?
A: Under this opinion, yes. The committee said it is desirable to agree at the outset, provided the division is proportional to each lawyer's services and responsibility, the client consents, and the total fee is reasonable.
Q: What happens if the agreed split turns out not to match the work done?
A: Per the opinion, the agreement does not control. The shares must be revised in proportion to the services performed and responsibility assumed by each; a dispute over the revised division is a question of law, not ethics.
Q: Can a lawyer take a share just for referring the matter?
A: No. The committee reaffirmed that a share must rest on services performed and responsibility assumed, not on a bare recommendation, the practice former Canon 34 condemned.
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, and draws on ABA 204 (1940), ABA Inf. 936, and Drinker. The current analogue is Rule 1.5(g), which conditions fee division on proportionality (or joint responsibility), the client's written consent, 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:
- ABA 204 (1940): desirable to determine in advance whether a joint fee is charged and divided
- ABA Inf. 936: agreed split does not control where services and responsibility do not warrant it
- ABA 153 (1936); ABA 265 (1945): division of fees and the responsibility requirement
See also
- NY State Bar Op. 408: Fee division in a wrongful-death case
- NY State Bar Op. 443: A contingent fee to collect past-due support
- NY State Bar Op. 426: A referral-service administrator taking its own referrals
Source
- Landing page: https://nysba.org/opinion-414/
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