If a contingent-fee lawyer is disbarred mid-case, can he recover for work already done, and must the successor lawyer share the fee with him?

Plain-English summary

An attorney retained on a contingent-fee basis to prosecute a wrongful-death action began work and was then disbarred or surrendered his license. The executor engaged a successor attorney, who obtained a recovery by settlement or trial. The inquiry asked whether the first attorney could be compensated for work done before disbarment, on what basis, and whether the successor attorney had to divide the fee with him.

The committee concluded that an attorney whose disbarment, suspension, or license surrender prevents him from completing a contingent-fee contract may recover in quantum meruit for the reasonable value of work done before the disqualification. It relied on Harris Trust & Savings Bank v. Chicago College and related cases holding that a discharged or disbarred attorney's recovery is limited to the reasonable value of services rendered up to discharge, reasoning that denying any recovery would be unjust enrichment and an economic sanction unrelated to the disqualifying offense. In valuing the services, a court may consider the extent to which the disqualification forced successor counsel to duplicate work (Baker v. City of Granite City).

On the second question, the committee concluded the successor attorney has no obligation to divide his fee with the disbarred attorney; an agreement to divide future fees on a basis other than retained responsibility is void as against public policy (Leoris v. Dicks), and a disbarred lawyer can retain no responsibility. The committee reconciled its older opinions: Opinion 245 and Opinion 262 correctly held it improper to divide a contingent fee with a disbarred lawyer, but the portion of Opinion 262 denying any quantum-meruit recovery (on an "entirety of contract" theory) is inconsistent with current case law and should no longer be relied upon.

Currency note

This opinion was issued in January 1988, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 1990 (and later 2010) Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010, pointing to Illinois Supreme Court Rule 764(h) and Serio v. Equitable Life Assurance (and ISBA Opinion 90-26), while cautioning that the specific standards referenced may differ from the 2010 Rules. 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 or requirement mentioned here.

Common questions

Q: Can a lawyer disbarred during a contingent-fee case recover for the work he already did?

A: The opinion concluded yes, in quantum meruit, for the reasonable value of the work done before disbarment; denying recovery would be unjust enrichment unrelated to the disqualifying offense.

Q: Does the successor lawyer have to share the contingent fee with the disbarred lawyer?

A: Per the opinion, no; a disbarred lawyer retains no responsibility for the matter, and an agreement to divide future fees on any other basis is void as against public policy.

Q: How is the disbarred lawyer's recovery valued?

A: The opinion concluded a court determines the reasonable value of the services, taking into account the extent to which the disqualification forced successor counsel to duplicate the earlier work.

Background and rules framework

The opinion addressed fee recovery and division largely through Illinois case law (quantum meruit) rather than a single rule, but its division-of-fees holding tracks former Rule 2-107's requirement of retained responsibility for fee splitting. The Board's 2010 affirmation points to Illinois Supreme Court Rule 764(h) (post-discipline winding up) and current fee-division principles, corresponding to ABA Model Rule 1.5 on fees and division of fees.

Citations and references

Rules of Professional Conduct:

• Former Illinois Code Rule 2-107 (division of fees and retained responsibility), reflected in the analysis
• Illinois RPC 1.5(e); Illinois Supreme Court Rule 764(h) (per the Board's affirmation)
• MR 1.5 (fees; division of fees)

Cases:

• Harris Trust & Savings Bank v. Chicago College, 116 Ill. App. 3d 906, 452 N.E.2d 701 (Ill. App. 1st Dist. 1983), disbarred attorney limited to reasonable value of services rendered
• Baker v. City of Granite City, 112 Ill. App. 3d 1096, 446 N.E.2d 531 (Ill. App. 5th Dist. 1983), valuing services and duplicated work
• Leoris v. Dicks, 501 N.E.2d 901 (Ill. App. 1st Dist. 1986), agreement to divide future fees absent retained responsibility void

Other opinions cited:

• ISBA Opinion Nos. 245 and 262: improper to divide a contingent fee with a disbarred lawyer; Opinion 262's denial of quantum-meruit recovery no longer to be relied upon

See also

• ISBA Ethics Op. 88-04: Settling a Case When the Client Cannot Be Found
• ISBA Ethics Op. 89-02: A Prosecutor Taking a Referral Fee in a Related Civil Case

Source

• Landing page: https://www.isba.org/ethics/opinions/8703