Bar Counsel Notes: Fee Issues

Question:

ADA is a full-time Assistant District Attorney. She has a friend (F), that she referred to a “personal injury attorney,” PI. As a result, with F’s written consent, PI has told ADA that he will be giving her a referral fee. May ADA accept such a referral fee?

Answer:

No. Referral fees are a form of fee sharing (see Advisory Opinions #103 & #145). As a result, ADA’s acceptance of such a fee from PI would at least raise an implication that she is “practicing law,” which she is disallowed by statute from doing as a full-time criminal prosecutor. See Title 30-A M.R.S. § 256. Thus, because ADA’s acceptance of such a referral fee would be in violation of state statute, such conduct would also violate M. R. Prof. Conduct 8.4(a)(b)(d).

*Disclaimer: The Informal Ethics Advisory Notes from Bar Counsel are intended as outreach by the office of Bar Counsel for the use and benefit of the Maine bar. These scenarios are drawn from actual telephone calls received by the attorneys in the office of Bar Counsel in the course of providing informal advice on the Code of Professional Responsibility, known as Bar Counsel's "Ethics Hotline." The particular advice in each case is limited with reference to the particular factual situation related by the inquiring attorney who must be inquiring about his or her own conduct or the conduct of a member of his or her firm. We do not provide any advice to one attorney about the conduct of another attorney unless they are members of the same law firm. In the telephone opinions, we usually explore and discuss additional factual variables. However, I have attempted to pare down these factual scenarios to make the email newsletter more readable and useful in a general sense. Obviously, that creates the risk that slight variations on the facts, to a learned reader, may give rise to a different analysis and conclusion.