The Florida Bar

July 18, 1966

It is not ethically proper for a group of attorneys to enter into a contractual arrangement involving wills drawn by any of the group, whereby a fee subsequently awarded or paid to a member of the group for conducting probate proceedings would be divided with the attorney drafting the will or his survivors.

Canon: 34

Chairman MacDonald stated the opinion of the committee:

A member of The Florida Bar proposes that he and a number of other members of the Bar enter into a contractual relationship governing situations involving wills drawn by one of the contracting parties, the probate of which is conducted by another of the group “due to the absence of the draftsman.” It is implied that death of the draftsman is the ordinary situation contemplated. The proposed agreement would require a reasonable division of the fees awarded or paid to the counsel conducting probate proceedings with the drafting counsel or his survivors. The agreement seemingly would not create any partnership relationship among the attorneys signatory thereto. We so assume for purposes of this opinion.

It is contended that such a division of fees would provide financial security to attorneys not members of partnerships in view of the expectation that in most instances the draftsman of a will would otherwise be retained to attend to the legal problems of the estate. With candor the inquirer expresses the view that Canon 34, pertaining to division of fees, might preclude an undertaking such as the one proposed. In the event the Committee so concludes, he asks whether we might suggest alternative approaches to the problem which would be proper and requests our view as to possible amendment to Canon 34.

Canon 34 is succinct, direct, and dispositive of the principal inquiry. It provides:

No division of fees for legal services is proper, except with another lawyer based upon a division of service or responsibility.

We are sympathetic to concern for economic security on the part of the sole practitioner. However, the proposed arrangement in our judgment would be contrary to this Canon in a number of respects. Principally, it would involve a division of fees not based upon “a division of service or responsibility.” Moreover, in the instances of payments to survivors it would in most circumstances involve a division with persons other than lawyers. We feel the policy of Canon 34 is sound and in essence protects the client from the hazard of unnecessary additional attorney fees.

The Committee is not empowered by the policy of the Board of Governors under which it functions to offer opinions on other than conduct proposed by a member of The Florida Bar. Hence it is not appropriate for this Committee to advance alternative suggestions. Moreover, since the roots of the problems requiring exploration for alternatives are essentially economic, we feel the services of the several committees of The Florida Bar now functioning in the area of the economics of the practice of law would be much more useful to the interested attorneys.

We do observe, however, that we would view with caution any ad hoc effort to seek amendment to Canon 34 for the limited purpose of sanctioning the arrangement now proposed. Not only are the canons now under study for general revision by a select committee of the American Bar Association, but in the past this Committee has held to the view that the canons should be general in application and ordinarily not encumbered with specialized exceptions.

[Revised: 08-24-2011]