April 15, 1965
A lawyer should not accept referrals of cases directly from a disbarred lawyer, but he may undertake cases and matters that a disbarred lawyer is unable to undertake or continue because of the disbarment, where the request comes from, and fee arrangements are made with, the client. The new lawyer may divide the fee with the disbarred lawyer to the extent earned by the disbarred lawyer from professional services rendered prior to his disbarment.
Note: Subsequent to the adoption of this opinion, the Fourth District Court of Appeal held that a lawyer who withdrew from a contingent fee case upon being suspended is not entitled to a fee. Santini v. Cleveland Clinic Florida, 65 So.3d 22 (Fla. 4th DCA 2011).
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar requests our opinion regarding the following factual situation. An attorney has recently been disbarred. Prior to the time of disbarment, the attorney forwarded certain cases which the member seeking this opinion was to try. Some of these cases have now been settled or otherwise terminated. Others are still pending. In addition, the attorney forwarded to him cases for trial after receiving the notice of disbarment but before the order of disbarment became final. The lawyer here also inquires whether he may ethically pay to the disbarred attorney a “referral fee” for work done prior to the disbarment and, further, whether he may ethically undertake representation of the clients in connection with those cases forwarded by the attorney after notice was issued.
In its Opinion 63-17, this Committee declined to give an opinion to a lawyer who had been suspended pursuant to disbarment proceedings relative to the scope of his activities during the suspension period. In the present case, however, the Committee believes it may properly respond to this inquiry.
Forwarding fees as such are prohibited by the Canons of Professional Ethics. Canon 34 provides that no division of fees for legal services is proper except a division with another lawyer which must be based upon the service rendered and/or the responsibility shared by that lawyer in connection with the case. Assuming that the “referral fee” which is mentioned is properly based upon a division of service or responsibility, it is the unanimous view of this Committee that a lawyer may properly share with the disbarred attorney any fee which the latter earned for work done prior to the time of his disbarment. Under no circumstances, however, should the disbarred attorney receive compensation for any act done subsequent to disbarment.
In our Opinion 64-17 [since withdrawn], we dealt in part with the problem of an attorney accepting cases which were referred to him by a disbarred attorney which cases were forwarded by the attorney at the time of, or after notice of, the disbarment. There it was pointed out that the preferable practice would be for the disbarred attorney to return the files of his former clients and leave them free to select an attorney for completion of the work without any reference to or recommendation of another lawyer. The Committee adheres to the opinion. A lawyer in good standing should not accept referrals of cases directly from a disbarred lawyer. He may, however, undertake cases and matters which were being handled by the disbarred lawyer at the time the disciplinary action was taken provided the request for such representation comes directly from, and the fee arrangement is made directly with, the client.