Can a lawyer pay a now-suspended or disbarred lawyer a share of a fee under a referral or fee-sharing agreement made before the suspension?
Ohio BPC Opinion 89-002: Sharing Fees With a Suspended or Disbarred Lawyer
Short answer: The Board concluded that a lawyer may share fees with a suspended or disbarred lawyer if the fee-sharing agreement was made before the suspension or disbarment and the fee is divided on the basis of work performed before the suspension or disbarment.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct'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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
This opinion was issued in 1989 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 1.5(e) on division of fees and 5.4 on sharing fees with a non-lawyer) before relying on any specific rule mentioned here.
Plain-English summary
A lawyer asked whether a now-suspended lawyer could receive a percentage of a fee under a referral agreement made before the suspension, where the suspended lawyer had done substantial work on the case before the referral.
The Board pointed to a line of advisory opinions from other jurisdictions holding that a lawyer who has been disbarred, suspended, or has surrendered a license may recover the reasonable value of work done before being disbarred or disqualified, and that a lawyer may share contingent fees with a disbarred or suspended lawyer who performed work on the case before the disbarment or suspension. It concluded that a lawyer may share fees with a suspended or disbarred lawyer if the fee-sharing agreement was made before the suspension or disbarment and the fee is divided on the basis of work done before the suspension or disbarment.
Common questions
Q: Can a lawyer pay a suspended lawyer a share of a fee?
A: Yes, within limits. The Board concluded a lawyer may share fees with a suspended or disbarred lawyer if the agreement predated the suspension or disbarment and the division is based on work done before then.
Q: Does it matter when the work was done?
A: Yes. The Board's conclusion turns on the fee being divided on the basis of work performed before the suspension or disbarment, not work done afterward.
Background and rules framework
The opinion addresses the division of fees with a lawyer who has since been suspended or disbarred under the former Ohio Code of Professional Responsibility, relying on persuasive opinions from other bars. The current parallels are Ohio Prof. Cond. R. 1.5(e) (division of fees between lawyers) and 5.4 (sharing fees with a non-lawyer), with Model Rules 1.5 and 5.4.
Citations and references
Other opinions cited:
- Illinois State Bar Assn. Op. 87-3 (1988): recovery for the reasonable value of work done before disbarment or disqualification
- Philadelphia Bar Assn. Op. 86-83 (1986): sharing contingent fees with a disbarred or suspended lawyer for pre-discipline work
- Iowa State Bar Assn. Op. 85-15 (1986); Pennsylvania Bar Assn. Op. 80-32 (1980); Birmingham Bar Assn. Op. 19 (1982); Bar Assn. of Nassau County Op. 83-5 (1983)
See also
- Ohio BPC Opinion 1988-026: Fee Division and "Responsibility Assumed"
- Ohio BPC Opinion 1988-031: No Fee Where No Services Were Performed
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-89-002.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 89-002
Issued February 17, 1989
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: A lawyer may share fees with a suspended or disbarred lawyer if the fee-sharing agreement were made prior to suspension or disbarment and the fee is divided on the basis of work performed prior to the suspension or disbarment.
OPINION: We have before us your request for our opinion on a suspended lawyer receiving a percentage of a fee for a referral agreement made prior to the lawyer's suspension. In your request you state that you had done substantial work on the case prior to the referral.
There are several advisory opinions written on this subject. The most recent opinions are clearly on point. "A lawyer who has been disbarred or suspended, or has surrendered his license, may recover for the reasonable value of work done prior to being disbarred or disqualified." Illinois St. Bar Assn. Op. 87-3 (1988). "A lawyer may share contingent legal fees with a disbarred or suspended lawyer who performed work on the case prior to disbarment or suspension." Philadelphia Bar Assn. Op. 86-83 (1986). See also, Iowa State Bar Assn. Op. 85-15 (1986), Pennsylvania Bar Assn. Op. 80-32 (1980), Birmingham Bar Assn. Op. 19 (1982), Bar Assn. of Nassau County Op. 83-5 (1983).
All of these cases clearly state that a lawyer may share fees with a suspended or disbarred lawyer if, the fee-sharing agreement is made prior to suspension or disbarment, and the fee is divided on the basis of work done prior to the suspension or disbarment.
This opinion is advisory in nature, is based upon the facts as presented and is limited to questions arising under the Code of Professional Responsibility.