Ezel / Ethics Opinions / SBAND

Could a firm collect part of a departed associate's fees on new client matters without work or joint responsibility?

Short answer The committee said an employment-contract provision dividing fees on the former associate's new matters violated Rule 1.5(e) where the firm did no work, assumed no joint responsibility, and the clients were not consulted.
Bar
SBAND
Issued
June 17, 1992
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 1992. Ask about yours and see what the current North Dakota Rules of Professional Conduct say for your facts, with citations.

How much weight this carries: Under North Dakota Rule for Lawyer Discipline 1.2(B), a lawyer who acts in good faith and in reasonable reliance on a written opinion of the association's ethics committee is not subject to sanction for the conduct the opinion addresses. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A law firm sought a percentage of fees from a former associate's new matters for clients who had been with the firm. The request said the firm performed no work on those matters, assumed no joint responsibility, and the clients had not been consulted about the firm's participation.

The committee said the departed associate and former firm were no longer “in the same firm” when the new work began. It therefore applied Rule 1.5(e)'s limits on fee division between lawyers outside the same firm: proportionate services or joint responsibility by written agreement, client consultation without objection, and a reasonable total fee.

On the stated facts, the firm could not meet those conditions. The committee concluded that enforcing the contract's percentage of fees for new matters would violate Rule 1.5(e).

Currency note

This opinion was issued in 1992, before North Dakota's 2006 revisions to its Rules of Professional Conduct. The later North Dakota Opinion 06-05 states: “On August 1, 2006, material changes to N.D.R. Prof. Conduct 1.10(a) will take effect.” 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Did the employment contract alone entitle the former firm to a share of new-matter fees?

A: No. The committee said the proposed division had to meet Rule 1.5(e), and the described provision did not.

Q: Why did Rule 1.5(e) apply after the associate left?

A: The committee said the associate and firm were no longer in the same firm when the new matters began.

Q: What facts defeated the proposed fee division?

A: The former firm performed no work, assumed no joint responsibility, and the clients were not consulted about its participation.

Background and rules framework

The committee applied North Dakota Rule 1.5(e) to a post-employment fee provision covering matters opened after the associate's departure.

Citations and references

Rules of Professional Conduct:

  • North Dakota Rule 1.5(e), division of fees between lawyers outside the same firm.

See also

Source

Original opinion text

Full opinion text unavailable from the official source; see the linked source above for the complete text.

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