100319 NYEO, ETH 1172

• Case Date: October 03, 2019
• Court: New York

ETH 1172 Ethics Opinion 1172 New York Ethics Opinion New York State Bar Association Committee on Professional Ethics October 3, 2019          Topic: Referral fees; retired lawyer          Digest: A retiring lawyer may ask for a referral fee, from the attorney who agrees to safe keep wills drafted by the lawyer, with respect to new representations of the testators or estates, if the retiring lawyer will assume joint responsibility for the subsequent representations, which may only occur if the lawyer maintains his registration as a lawyer.          Rules: 1.5(g), 1.17, 5.1, 5.4(a), 8.4(a).          FACTS          1. The inquirer is a practicing attorney who is about to retire. The inquirer has turned over to another attorney (the custodial attorney) several original wills the inquirer had prepared for clients. The inquirer’s firm had been holding them for safekeeping, but the firm no longer handles wills and estate matters. The custodial attorney previously practiced with the inquirer’s firm, but had moved to another firm by the time of the transfer.          QUESTION          2. If the wills the inquirer turned over to the custodial attorney evolve into estate work for the custodial attorney, may the custodial attorney pay the inquirer a referral fee, in the amount of a percentage of the fee that the custodial attorney receives?          OPINION          3. This Committee does not answer questions about the conduct of a lawyer other than the inquirer, and, technically, this inquiry concerns the conduct of the custodial lawyer, not the inquirer. Accordingly, we will consider the question to be whether the inquirer may ask for or accept such a referral fee. See Rule 1.5(g) (rule on sharing fees applies to both the payor and the recipient); Rule 8.4(a) (a lawyer shall not induce another to violate the Rules of Professional Conduct (the “Rules”)).          4. This opinion assumes that the clients whose wills were turned over to the custodial attorney consented to that action, or that the custodial attorney will read the wills only to the extent necessary to notify the testators and ask...