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I would like to pose the following question to the Committee on Professional Ethics for a written opinion. The fact pattern given is based on a true situation which has actually been presented to me.
A, a practicing attorney, has died intestate and leaving B, A’s son, as sole distributee of A’s estate B is not an attorney. B has informed C, another attorney, that B is desirous that C take over A’s former law practice. Due to illness, prior to his death, A had not kept accurate records nor had he properly indexed nor assembled his files. The parties have agreed after consideration of all the factors that in the aggregate A had done 33-1/3% of the work in the aggregate of the cases including expenses and disbursements actually paid by A. C has agreed that he will inform all of the former clients that he is taking over A’s law offices and law practice and that they may if they wish substitute C as their attorney. It will be made clear that the former clients are free to substitute any other attorney, other than C, in their case (or take the case themselves), after payment, to the estate, for services rendered by A. B and C agree that in the event that C is substituted B is to receive 33-1/3% of any legal fee, before there is deducted any sum for expenses or disbursements recovered from the pending matters of the law practice. C is to pay all expenses and disbursements incurred by C without recourse to B. Any payments to B from C are to be considered as the value of the services performed by A while he was alive.
Is there any breach in professional ethics in:
1. Apportioning the legal fees with B as sole distributee of the estate? Apportioning of the fees, in the manner set forth above?
2. Communicating with the former clients, in the matter aforesaid?
3. Any other breach of ethics?
As death ended the attorney-client relation between A and his former clients, they alone have the unrestricted right to choose new counsel.
C may make arrangements with B to compensate the estate of A for disbursements and for a fair approximation of the value of the services rendered by the deceased in cases taken over by C.
When C, as attorney for B, notifies by telephone or in writing, each of the clients whose business remains unfinished, he may advise that at the request of B he has ‘‘taken over” the law office of A; the Committee disapproves of any writing or statement by C to any of the former clients of A that he has “taken over” the law practice of A. (Drinker Legal Ethics P. 189; Cf. Bailly v. Betti, 241 NY 22, 26) He may also notify such former clients of the death of A and of the need of engaging new counsel. Should any of these clients request C to act in their behalf, as new counsel in unfinished matters, he may accept the new retainer.
Under no circumstances should C seek to influence any of such former clients in the selection of their new counsel. (NY City Bar Assn. Opinion No. 618); or sent an announcement to any former client of A who had no matters pending with him at the date of his death.
It would be unethical for C, in any arrangement with B or as new counsel for any of A’ s former clients to agree to pay expenses of litigation. C may in good faith advance expenses subject to reimbursement (Canon 42). By statute agreements by attorneys to pay expenses of litigation have been made penal. (Sec. 274 Penal Law) (See Matter of Gilman, 251 NY 265; Matter of Tunnicliff 202 App. Div. 69).
Dated: November 2, 1959.