Bar Counsel Notes: Fee splitting/referral fees

May Attorney A receive a portion of the recovery as a referral fee in a personal injury matter where that referral was based upon Attorney A declining to undertake legal representation due to a conflict of interest?

No. If an attorney is unable to commence or must withdraw from a legal matter because of a conflict of interest, then Bar Rules 3.4 and 3.3(d) prohibit an attorney from indirectly receiving any legal fee of any amount. The Professional Ethics Commission's Advisory Opinion #145 states in part that "…a compensated referral to a particular lawyer is in and of itself representation of (a client)…" and "…Attorney A's determination that a conflict exists precludes her undertaking any representation of (that client) in the matter…"

*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.