Can the lawyer who takes over a case pay the original lawyer, who was disbarred during the appeal, a share of the contingent fee or quantum meruit?

Plain-English summary

An attorney signed a contingent fee contract and successfully tried the case. On appeal, the attorney was disbarred, a second attorney was substituted, and the case was ultimately affirmed by the Supreme Court. The inquiry asked whether the second attorney could pay the disbarred attorney, either on the contingent fee contract or in quantum meruit, for services rendered.

The Committee noted that ethics opinions from several other jurisdictions generally treat it as not improper to take over a disbarred attorney's cases and pay him a portion of the fee for work done before suspension or disbarment. But it found controlling the Texas Supreme Court's decision in Royden v. Ardoin, 331 S.W.2d 206 (Tex. 1960), which held that an attorney disbarred or suspended before completing a contingent fee contract is not entitled to collect on the contract or in quantum meruit, because the disbarment or suspension is treated as the equivalent of a voluntary abandonment of the work.

The Committee concluded that, accordingly, payment to the disbarred attorney would violate DR 3-102. It expressly limited the opinion to the abandonment-by-disbarment situation, declining to address payment where services were completed before disbarment with no abandonment, or where the client and attorney had agreed to a substitution before the disbarment. The vote was 9-0.

Currency note

This opinion was issued in 1986, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rule on sharing legal fees with a non-lawyer is Rule 5.04, and the closest ABA analog is Model Rule 5.4. Subsequent rule changes 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 Treat this page as historical context, not current guidance.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 substitute lawyer pay an attorney who was disbarred mid-case?

A: Per the opinion, no, where the disbarment occurred before the contingent fee contract was completed. The Committee concluded such payment would violate DR 3-102.

Q: Why doesn't quantum meruit help the disbarred attorney?

A: The Committee relied on Royden v. Ardoin, which held that disbarment or suspension before completion is treated as a voluntary abandonment, barring recovery on the contract or in quantum meruit.

Q: Does the opinion cover every disbarment situation?

A: No. The Committee limited it to abandonment by disbarment, declining to address cases where services were completed before disbarment with no abandonment or where a substitution was agreed before the disbarment.

Background and rules framework

The opinion interprets DR 3-102 of the former Texas Code of Professional Responsibility (a lawyer shall not share legal fees with a non-lawyer), applied to a disbarred attorney through the Texas Supreme Court's abandonment rule in Royden v. Ardoin. The closest current concept is Texas Rule 5.04 and Model Rule 5.4 on sharing fees with a non-lawyer. The analysis turns on disbarment before completion functioning as abandonment that forfeits any fee.

Citations and references

Rules of Professional Conduct:

• MR 5.4 (sharing legal fees with a non-lawyer)
• DR 3-102, Texas Code of Professional Responsibility

Cases:

• Royden v. Ardoin, 331 S.W.2d 206 (Tex. 1960), disbarment before completing a contingent fee contract treated as abandonment barring recovery

Other opinions cited:

• Florida Opinion 64-17 (1965); New York County Lawyers Association Opinions 277 (1930) and 458 (1958); New York City Bar Opinion 538 (1940); Oregon State Bar Opinion 108 (1962); Philadelphia Bar Association Opinion 59-8 (1959)

See also

• TX Ethics Op. 459: Fee Clawback on a Departing Associate
• TX Ethics Op. 503: Sharing Fees With a Nonprofit Referrer

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-432/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_432.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Attorney signs a contingent fee contract with a client and successfully tries the case. The case is appealed and during the appeal, the attorney is disbarred from the practice of law. While the case is on appeal, another attorney is substituted and finally the case is affirmed by the Supreme Court. May the second attorney pay the disbarred attorney either on the contingent fee contract or under quantum merit for services rendered?

DISCUSSION

Earlier ethics opinions generally recognize that it is not improper for an attorney to take over cases previously handled by a disbarred attorney and pay the disbarred attorney a portion of the fee based upon work done prior to the suspension or disbarment. Florida Opinion 64-17 (1965); New York County Lawyers Association Opinion 277 (1930); New York County Lawyers Association Opinion 458 (1958); New York City Bar Opinion 538 (1940); Oregon State Bar Opinion 108 (1962); Philadelphia Bar Association Opinion 59-8 (1959). However, the Supreme Court of Texas has held in Royden v. Ardoin, 331 S.W.2d 206 (Tex.Sup.Ct. 1960): Where the attorney, prior to the completion of his contingent fee contract is disbarred or suspended, he is not entitled to collect either on the contract or quantum meruit for the services, if any, that have been rendered. His disbarment or suspension is considered tantamount to and to have the same effect as a voluntary abandonment, for the attorney by knowingly and willfully practicing such a course of conduct that would lend to the termination of his right to practice, renders it impossible to complete the work that he engaged to perform.

Accordingly, payment to the disbarred attorney would be in violation of DR 3- 102. This opinion does not address the question of payment to a lawyer where the services are completed prior to the disbarment and where there is no abandonment. If an attorney and a client agree that another attorney will be substituted and then the original attorney is disbarred, is the original attorney entitled to a fee? This question is not addressed in this opinion. We address only the question of where there is abandonment by reason of disbarment. (9-0 vote)

CONCLUSION

Accordingly, payment to the disbarred attorney would be in violation of DR 3- 102. This opinion does not address the question of payment to a lawyer where the services are completed prior to the disbarment and where there is no abandonment. If an attorney and a client agree that another attorney will be substituted and then the original attorney is disbarred, is the original attorney entitled to a fee? This question is not addressed in this opinion. We address only the question of where there is abandonment by reason of disbarment. (9-0 vote)

Tex. Comm. On Professional Ethics, Op. 432 (1986)