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As a condition of my recent employment in the capacity of associate to a New York City law firm, I agreed to share with the firm a certain percentage of all legal fees received by me.
I have since learned that the firm is of the opinion that the said agreement should include commissions received by me as executor and trustee under a will.
Not only do I disagree with the firm’s construction of the said agreement, but I am further of the opinion that such construction would be unlawful and therefore ethically improper. Moreover, even if the agreement were not unlawful as such, I would yet feel that the policy of this State is sufficiently strong to prohibit purely as 3 matter of professional ethics, the construction urged by my firm.
My question is In view of the strong public policy of this State against the sharing of fiduciary commissions (see Matter of Worthington, 141 N.Y. 9), is it ethical for a law firm to enter into an agreement with an associate whereby the associate would be required to share with the firm monies received by the associate as compensation for his fiduciary activities?
AMENDED ANSWER TO QUESTION NO. 583
The validity of the agreement involves a question of law upon which this Committee does not pass. If it constitutes an assignment of fiduciary commissions not yet allowed, it may fall within the prohibition of Matter of Worthington, et al., 141 N.Y. 9, 11 (1894). It would of course be unethical for a lawyer to enter into an illegal agreement. If the arrangement merely creates a formula under which the employee’s compensation depends in part on the amount of commissions already earned and allowed, and is not illegal, it is not ethically improper for the attorneys to enter into it. See, N.Y. State 32, (July 8, 1966.)
December 29, 1970