Can a Florida lawyer split a fee with an out-of-state lawyer who no longer practices and did no work on the case?

Plain-English summary

A former member of the New Jersey Bar, no longer practicing law and now a minister, brought a member of his congregation to a Florida lawyer's office for legal services. In private, the minister said he wished to participate in the fee as a referring attorney, because he had been a member of the New Jersey Bar and had formerly practiced law there.

The committee said any division of the fee under these circumstances would be highly improper. It quoted Canon 34: no division of fees for legal services is proper except with another lawyer based upon a division of service or responsibility. Here there could be no division of service or responsibility, because the minister was not a practitioner and in no way gave of his legal talents to the client. The committee added that Canon 38 bars a lawyer from accepting compensation, commissions, rebates, or other advantages from others without the client's knowledge and consent after full disclosure, and that even if the minister claimed the status of a lawyer, he would apparently be acting contrary to Canon 38. The committee concluded it would be highly improper for a referral fee to be paid.

Currency note

This opinion was issued in 1962, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 34 and 38 of the Canons of Professional Ethics; the division of fees with a nonlawyer, fee arrangements, and accepting compensation from third parties are now addressed by Rules 4-5.4, 4-1.5, and 4-1.8 of the Rules Regulating The Florida Bar (Model Rules 5.4, 1.5, and 1.8). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could the lawyer pay the referring minister a share of the fee?

A: No. The committee concluded any division of the fee would be highly improper, because the minister was not in practice and did nothing on the case, so there was no division of service or responsibility.

Q: Did it matter that the minister had once been a licensed lawyer?

A: The committee found it did not help. With no service or responsibility shared, the payment failed Canon 34, and even treating the minister as a lawyer, the arrangement would apparently violate Canon 38's bar on undisclosed compensation.

Background and rules framework

The opinion applied former Canons 34 and 38 of the Canons of Professional Ethics. Canon 34 permitted dividing legal fees only with another lawyer on a basis of service or responsibility; Canon 38 barred accepting compensation from others without the client's knowledge and consent after full disclosure. Those subjects are now addressed by Rules 4-5.4, 4-1.5, and 4-1.8 of the Rules Regulating The Florida Bar (Model Rules 5.4, 1.5, and 1.8).

Citations and references

Rules of Professional Conduct:

• Canons 34, 38 [Canons of Professional Ethics; see current Rules 4-5.4, 4-1.5, 4-1.8]

See also

• FL Bar Ethics Op. 62-18: Refusing a Collection Agency's Forwarding Fee
• FL Bar Ethics Op. 62-7: A Corporate Salary Reduced by Law-Practice Fees

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-62-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-62-3-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 62-3
June 29, 1962
Advisory ethics opinions are not binding.
It would be unethical for a Florida lawyer to divide any portion of his fee with an out-of-state lawyer who was not in practice and did not participate in the handling of the case.
Canons: 34, 38
Vice-Chairman Smith stated the opinion of the committee:
A member of The Florida Bar submits an inquiry wherein he states that a former member of the New Jersey Bar, who is no longer practicing law but is now a minister, brought to his office a member of the congregation for legal services. In privacy, the minister advised him of a desire to participate in the fee as referring attorney because of the fact that he was a member of the New Jersey Bar and had formerly practiced law in that state.
It is the opinion of the committee that any division of the fee under these circumstances would be highly improper. Canon 34 of the Canons of Professional Ethics provides:
No division of fees for legal services is proper, except with another lawyer based upon a division of service or responsibility.
In the situation presented to us, it is impossible that there be a division of service or responsibility between lawyers relative to the services rendered inasmuch as the minister is not a practitioner and in no way gave of his legal talents to the client. Further, Canon 38 of the Canons of Professional Ethics provides that a lawyer should accept no compensation, commissions, rebates or other advantages from others without the knowledge and consent of his client after full disclosure. Even if the minister were to claim the status of a lawyer in this situation, he would apparently be acting in a manner directly contrary to the provision of Canon 38.
Under the circumstances, we think it would be highly improper for a referral fee to be paid.