NUMBER 277 1930
Question. An attorney is under charges of unprofessional conduct and is now awaiting a hearing before a referee appointed by the Court to consider his case. He has approached another attorney with the suggestion that he be substituted in as many of the cases as the substitution can be effected.
No pressure or inducement of any kind is being brought to bear upon or being given to the client in each case, and the client has entire freedom to determine whether or not he wishes to make the substitution. Each client is also told that if he wishes to substitute for the present attorney who is under charges another lawyer of his own choosing that he is fully at liberty to do so. It is also understood that the new attorney is to determine for himself whether he wishes to be substituted in any particular case, and once substituted, he is to have the same control of the case as though originally retained as attorney for plaintiff.
1. Would such a substitution be ethical and proper?
2. Would it be ethical and proper for the substituted attorney to agree with the attorney who is under charges to pay him a stipulated percentage of any recovery for services rendered prior to substitution?
3. Would it be ethical and proper for the attorney who is substituted to pay to the attorney who is under charges a stipulated percentage of the recovery even though such attorney who is under charges is subsequently disciplined in any manner, including possible disbarment?
Answer. In the opinion of the Committee:
1. In the absence of the solicitation, or joining in the solicitation of the employment by the second attorney, the substitution is not improper.
2. Unless the conduct of the first attorney has been such as to deprive him of the right to reasonable compensation for services already rendered by him, the division of the compensation, with the approval of the client, is not improper, provided it be made in good faith and based upon the services rendered by the first attorney.
3. As the subsequent discipline of the first attorney does not change his right to reasonable compensation for services lawfully performed by him prior to the substitution, there is no impropriety in the payment therefor.