Opinion 92-1
(May 1992)

You have asked this Committee whether it would violate the Rules of Professional Conduct if you were to pay a referral fee to a lawyer or, after his death, to the estate of that lawyer, with respect to fees paid by executors and trustees whom you represent as a result of your having drafted wills and trusts for clients referred by that lawyer during his lifetime.

It is the opinion of the Committee that Pennsylvania Rules of Professional Conduct 1.5 (e), 5.4 (a)(1) and 5.4 (a)(2) provide appropriate guidance. These rules provide as follows:

Rule 1.5(e)-- A lawyer shall not divide a fee for legal services with another lawyer who is not in the same firm unless:

1.  The client is advised of and does not object to the participation of all the lawyers involved, and

2.  The total fee of the lawyers is not illegal or clearly excessive for all legal services they rendered the client.

Rule 5.4(a)--A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

1.  An agreement by a lawyer with the lawyer's firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons; and

2.  A lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer.

It is the opinion of the Committee that you may pay a referral fee to the referring lawyer regardless of his or her participation in the preparation of the documents or the representation of the executors and trustees so long as the client is aware of the division of the fee, does not object to the division, and so long as the total fee is not illegal or clearly excessive for all legal services rendered.

Furthermore, Rules 5.4(a) and 1.5(e) would permit the continued payment of such referral fees to the estate of the deceased referring lawyer with respect to the administration of estates and trusts during the referring lawyer's lifetime. The only work required of the referring lawyer is his or her referral of the client to you, the Inquirer. Rule 1.5(e). Having made the referral, the lawyer (and his estate) would be entitled to compensation for the referral when the services for the client have been completed.

It would not be appropriate to pay a referral fee to the referring lawyer's estate for services rendered to an executor or trustee when those services had not started during the lifetime of the referring lawyer and when the obligation to pay that referral fee arose solely because you prepared documents, presumably wills and trusts, during the lifetime of the referring lawyer. Under those circumstances, neither an estate administration nor a trust administration could be deemed business that was unfinished at the time of death of the referring lawyer.

   

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.