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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 15
July 7, 1995
The Committee has been posed with the following inquiry:
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“Is it unethical or otherwise improper for an attorney to enter into a non-contingent payment arrangement with a non-lawyer for the referral of cases?”
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Several principles make this arrangement improper. Ethical Consideration 3-8 provides that a “lawyer shall not ...... share legal fees with a layman”. This prohibition is embodied in Disciplinary Rules 3—102(A) and 2—103(8), which proscribe a lawyer from compensating, or giving anything of value to a person to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client.
Any compensation, whether in the form of a commission or percentage is improper. Such form of compensation would tend to give the non-lawyer a pecuniary interest in the success of the solicitation, and may lead to the use of hard-sell tactics or other improprieties (NYSBA, Ethics Op. No. 565). The fact that the fee will be payable regardless of the outcome of the case does not change the rationale underlying the impropriety. Non-lawyers have neither the training nor tradition in the particular ethical and legal limitations on the lawyer s “marketing” of his or her services. This is one of the reasons for the prohibitions against the use of third parties to solicit professional employment. (Id.)
Further, Judiciary Law §482 makes it unlawful for an attorney to employ any person for the purpose of soliciting legal business, or the procurement of a retainer or any agreement for legal services.
In the Matter of Kronenberg, 136 AD2d 264 (2d Dept.),
attorney Kronenberg pled guilty to employing a non-attorney
to solicit legal business in violation of Judiciary Law Sec.
482, an unclassified misdemeanor (Judiciary Law §485). Kronenberg
had entered into an arrangement with a civilian employee of
the NYC Police Department whereby the employee would refer cases
to him, and was subsequently suspended from the practice of
law.
While this Committee cannot answer questions of law, violations of the law would perforce constitute unethical conduct (NYSBA Ethics Opinion No. 565).
Clearly, the aforementioned query must be answered in the affirmative wherein it would be an ethical violation by an attorney to enter into any type of fee arrangement with a non-lawyer for the referral of cases.
Pursuant to Article VI, Section 19 of the R.C.B.A. By-Laws, please be advised that the statements contained herein express the opinion of the Committee alone, and have not been passed upon the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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