Can an estate-planning lawyer accept a referral fee from an insurance company for steering a client who then buys life insurance?

Plain-English summary

A lawyer engaged in estate planning asked whether he could accept a referral fee from an insurance company for recommending a client who ultimately purchased life insurance. The committee answered no, treating N.Y. State 619 (1991) as decisive. In that earlier opinion the committee had held it an impermissible conflict under DR 5-101(A) and DR 5-104(A) for an estate-planning lawyer to recommend life insurance products while holding a financial interest in selling them, and had said the conflict could not be cured by disclosure and consent because "the opportunity for overreaching by the lawyer [was] too great to be tolerated."

The committee distinguished mortgages and title insurance, where banks and title companies offer similar, relatively fungible products. Life insurance, by contrast, comes in a wide variety of forms and prices, and the client's threshold question is whether life insurance is even the most appropriate or economical way to meet the client's objectives, an issue squarely within the lawyer's estate-planning advice. Because the lawyer's financial stake in a referral fee would unavoidably affect the lawyer's independent judgment about whether and which life insurance products to recommend, the committee concluded that disclosure and consent could not cure the direct and substantial conflict, even if the client could elect to claim the referral fee. It answered the question in the negative.

Currency note

This opinion was issued in 1994, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 Treat this page as historical context, not current guidance.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 an estate-planning lawyer take a referral fee from an insurance company?

A: The opinion concluded no. Following N.Y. State 619, it held the conflict non-consentable because the lawyer's financial interest would distort advice on whether and which life insurance the client should buy.

Q: Why is this different from a mortgage or title-insurance referral fee?

A: The opinion concluded mortgages and title insurance are relatively fungible products the client already knows the transaction requires, while life insurance varies widely and its very suitability is a question of the lawyer's estate-planning advice.

Q: Does letting the client claim the referral fee fix the conflict?

A: The opinion concluded no. Even allowing the client to claim the fee, and the lawyer purporting to exercise independent judgment, could not cure the direct and substantial conflict.

Background and rules framework

The opinion interpreted DR 5-101(A) (the lawyer's personal financial interest affecting judgment), DR 5-104(A) (business relations with a client), DR 5-105(C), and EC 5-2 of New York's former Code. The Model Rule analogues are Rule 1.7 (conflicts involving the lawyer's own interest) and Rule 1.8 (business transactions with clients). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• MR 1.8 (current clients: specific rules)
• NY DR 5-101(A); DR 5-104(A); DR 5-105(C); EC 5-2

Other opinions cited:

• N.Y. State 619 (1991): non-consentable conflict in recommending life insurance the lawyer profits from

See also

• NY State Bar Op. 682: Accepting a referral fee from an investment advisor
• NY State Bar Op. 687: Lawyer also acting as an insurance broker
• NY State Bar Op. 1086: Referral fee from an investment advisor

Source

• Landing page: https://nysba.org/opinion-671/