A lawyer is employed by a firm under an oral arrangement whereby he receives a salary plus one-third of the gross fees attributable to business brought into or introduced to the firm by him. Some of the clients introduced by him are on an annual retainer with the firm, but the retainers do not include litigation. The lawyer is considering a new association and inquires as to the proper allocation of fees which will be received from these clients after his departure in the following situations:
Billings on current work, some of which will have been performed before his departure;
Billings on new work received after his departure;
Billings on annual retainers for the current year expiring after his departure;
Billings on annual retainers for future years commencing after his departure;
Billings for work done for retainer-clients, but not within the terms of the retainer, such as litigation in the current year or any future years
The lawyer further inquires as to the extent to which he may endeavor to retain the clients he introduced to his present employers?
(A) Fees may be shared between a law firm and an attorney not a partner or associate of such firm, only in proportion to the services performed and the responsibility assumed DR 2-107(A); EC 2-22, If prior to the lawyer’s departure, work is performed for a client who was introduced to the firm by the attorney, the attorney is entitled to his agree share of the billings for such work despite the fact that the client may be billed therefor at a time subsequent to the .attorney’ s departure. Where work is received before the attorney’s departure but no services are performed prior to his departure, or where work is. received. after the attorney’s departure, billings for such work may not be shared between the attorney and the law firm, in view of the fact that the attorney tailed to share the responsibility for such work or to perform services in connection therewith.
As regards retainers, one of their purposes is to afford the client access to legal advice in the course of the client’s day to day business affairs, regardless of whether the client has need of and in fact obtains such advice, The attorney so retained, nevertheless, has an ongoing responsibility to the client to be available to offer such advice. When an attorney departs from a law firm he may not share in the portion of a retainer allocable to a period after his departure because he no longer shares the responsibility of the firm to provide services to the client.
With regard to non-retainer services rendered to retainer clients a departing attorney may share in the fees only to the extent that they are allocable to services rendered prior to the date of his departure.
(B) DR 2-102 of the Code of Professional Responsibility states as fo11ows:
“(A) A lawyer or law firm shall not use professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or similar professional notices or devices, except that the following may be used if they are in dignified form:…
“(2) A brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional office of a lawyer or law firm, which may be mailed to lawyers, clients, former clients, personal friends, and relatives. It shall not state biographical data except to the extent reasonably necessary to identify the lawyer or to explain the change in his association, but it may state the immediate past position of the lawyer. It may give the names and dates of predecessor firms in a continuing line of succession, It shall not state the nature of the practice except as permitted under DR 2-105”
The attorney who wishes to retain clients introduced by him to the firm from which he is departing may notify such clients of his departure and of his new association in such manner as will conform to the above disciplinary rule.
February 8, 1972