Bar Counsel Notes: Fee splitting/referral fees.

Attorney B formerly had a solo practice. In that status, he referred a criminal defendant client to another law firm for handling of a possible civil claim against the involved city's police department. Attorney B has now joined another law firm which generally represents that same city such that he has concluded he has a current conflict of interest. As a result, may he now receive a referral fee from that client's new lawyer that has been hired to handle the client's civil matter at the suggestion of Attorney B?

No. Reference should be made to Bar Rule 3.3(d)(Fee Division) and Advisory Opinion #145 (9/27/94) for guidance here. Opinion #145 states that it is implicit in the fee division rule that both attorneys are employed in some sense by the client, i.e. receiving compensation for referral to another attorney is in and of itself "representation" of a client. Therefore, given Attorney B's correct conclusion of a current conflict resulting from his new association with a law firm that represents the potential defendant city, Attorney B is prohibited from at all sharing in or receiving any fee on that client's civil matter against the city.

*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.