The Florida Bar

May 7, 1968

Canons: 19, 34
Opinion: 67-30

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar was employed by a bank acting as guardian of the property of an incompetent to collect certain assets which the incompetent allegedly had conveyed while incompetent. Another attorney, who had previously represented the incompetent prior to her adjudication as incompetent, served as a witness in the litigation, which successfully established the right of the guardian to certain properties.

The contract under which the inquirer handled the litigation was an oral contingent fee contract between himself and the bank, which was expressly approved by the county judge prior to the prosecution of the litigation. Upon successful conclusion of the litigation the fee called for by such contract has been duly paid by the bank as guardian from the assets of the guardianship.

The inquirer has now been approached by the other attorney who served as a witness. He has been requested to pay the witness what is described as “a one-third referral fee,” presumably because of earlier preliminary contact by this attorney with the inquirer prior to the declaration of incompetency and the appointment of the bank.

Canon 34 precludes a division of fee with anyone other than a lawyer and only then upon a division of services and responsibility. Beyond this the provisions of Canon 19 have been interpreted to preclude an attorney testifying for a client and participating in a contingent fee. See our Opinion 67-30 [since withdrawn]. Under the circumstances, therefore, we must advise the inquirer that it would be improper for him to directly or indirectly participate in the payment of the requested referral fee.

[Revised: 08-24-2011]