Can a Kentucky lawyer buy a disbarred lawyer's practice by paying the disbarred lawyer a percentage of the fees earned from the former clients?

Plain-English summary

The committee was asked whether a lawyer (Y) could purchase the practice of a lawyer (X) who had been disbarred by the Supreme Court, under an agreement in which Y would pay X a percentage of the income Y derived from serving X's former clients. The committee answered no. It reasoned that after disbarment X is considered a layman, and an attorney may not divide fees for legal services with a layman. The committee stated that a division of fees is proper only with another lawyer and only when it reflects a division of service or responsibility.

Currency note

This opinion was issued in 1977 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. 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 Treat this page as historical context, not current guidance.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 rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer pay a disbarred lawyer a share of fees earned from the disbarred lawyer's former clients?

A: No. The committee concluded that a disbarred lawyer is a layman, and a lawyer may not divide legal fees with a layman.

Q: When is dividing fees proper at all under this opinion?

A: Only with another lawyer, and only based on a division of service or responsibility.

Q: Did it matter that the payment was framed as a purchase of the practice?

A: The committee looked through the form to the substance: the arrangement paid the disbarred lawyer a percentage of fees from legal services, which it treated as an impermissible division of fees with a layman.

Background and rules framework

The opinion applies former Canon 34 and DR 3-102, which barred a lawyer from sharing legal fees with a non-lawyer. The modern analog is Model Rule 5.4(a), which generally prohibits a lawyer or law firm from sharing legal fees with a non-lawyer.

Citations and references

Rules of Professional Conduct:

• Canon 34; DR 3-102 (dividing fees with a non-lawyer); modern analog Model Rule 5.4(a)

Other opinions cited:

• ABA Informal Opinion 628 (1962); KBA Informal Opinion 33(3) (1976)

See also

• KBA Ethics Op. E-256: Disbarred Lawyer as Paralegal
• CA Bar Ethics Op. 1975-34: Dividing Probate Fees

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-175.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-175
Issued: November 1977

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

Following X’s disbarment by the Supreme Court, may Y enter into an agreement to purchase X’s practice in which Y pays X a percentage of the income Y derives from services performed for X’s former clients?

Answer:

No.

References:

Canon 34; DR 3-102; RAP 3.390; ABA Informal Opinion 628 (1962); KBA Informal Opinion 33(3) (1976)
OPINION

After X’s disbarment by the Supreme Court, X is considered a layman. An attorney may not divide fees for legal services with a layman. A division of fees is proper only with another lawyer based on a division of service or responsibility.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.