OPINION 301
May 1965
DIVISION OF FEESREFERRAL FEEIt is unethical for an attorney, who
is executor of an estate, to accept a fee for employing a law firm to represent the
estate.
Canon 31.
Question
May a practicing attorney, who is serving as independent executor of an estate, accept,
from a law firm employed by him and the devisees to defend a contest of the will, a
division of the fee paid by the executor and devisees to the firm for handling and
settling the will contest case, or a "referral" fee for forwarding the case to
the firm?
Opinion
Canon 31 prohibits division of fees between attorneys unless based upon a division of services or responsibilities. Canon 35 prohibits acceptance of compensation or rebates by an attorney without the knowledge and consent of his client after full disclosure.
Presumably, the executor was compensated, or not compensated, for his services as executor in accordance with the terms of the will and the law. In employing a law firm to defend the will, he acted in his capacity as executor, not as an attorney under Canon 31. Division of attorneys fees is authorized only between attorneys acting in their capacity as attorneys, and then only on the basis of legal services and legal responsibilities; and the sharing of "forwarding" fees is applicable only to liquidated commercial claims. Both the law firm and the attorney-executor would violate Canon 31 by payment and acceptance of any fee for "referral" or any division of the firms fee. (8-0.)
(Canon 35 would not be applicable unless the attorney-executor acted in his capacity as attorney.)