Could a Vermont lawyer receive a fee for referring clients to an investment adviser after disclosure and consent?

Short answer Opinion 98-08 prohibited the proposed adviser referral fee even with disclosure and client consent, reasoning that the lawyer’s financial interest would compromise the independent judgment clients expected in professional referrals.
Bar
VTBAR
Issued
1998

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This page answers the general question as of 1998. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
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

An investment adviser proposed paying a lawyer a percentage of advisory fees for referring clients. The proposal included written disclosure of the compensation arrangement and a limited role for the lawyer in initial meetings and monitoring.

The committee rejected the fee. It discussed DR 5-107 on compensation from someone other than the client, DR 5-105 on independent judgment, and DR 3-102 on fee division with a nonlawyer. It reasoned that clients understood recommendations of other professionals as part of their lawyer’s representation and expected those recommendations to be independent of the lawyer’s financial stake.

The opinion acknowledged that some other jurisdictions permitted such arrangements with disclosure and consent, but it concluded that a Vermont lawyer could not receive the proposed commission or fee.

Currency note

This opinion was issued in 1998 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Was written disclosure enough to permit the referral fee?

A: No. The committee rejected the arrangement even with disclosure and client consent.

Q: What compensation was proposed?

A: The adviser proposed paying a percentage of the client’s advisory fee for the lawyer’s referral.

Q: Why did the committee reject the arrangement?

A: It found that the lawyer’s financial interest conflicted with the independent judgment clients expected when receiving professional referrals.

Background and rules framework

The opinion discussed former Code DR 5-107, DR 5-105, and DR 3-102. It cited Vermont Opinion 94-1 and compared opinions from Connecticut, Illinois, Missouri, and New York.

Citations and references

Vermont Code of Professional Responsibility:

  • DR 5-107, DR 5-105, DR 3-102

See also

Source

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