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ETHICS OPINION 598-1972 DIVISION OF FEES IN CRIMINAL CASES
NUMBER 598
QUESTION.
May a lawyer divide a fee in a criminal matter with a lawyer who referred the client to him, when the forwarding lawyer merely advised the client of his constitutional right to remain silent, his right to counsel, and in a general way his rights upon arrest? If so, is there any ethical obligation, in the absence of an express understanding in advance, to remit a forwarding fee after the local lawyer has charged a fee based upon the services rendered by him alone? In the event that the referred client, introduces a co-defendant to the local lawyer is a division of the fee charged the co-defendant proper when the forwarding lawyer did not Know of the co-defendant?
ANSWER.
The answers to the foregoing three questions are found in DR 2- 107(A), which provides in substance that there shall be no division of fees among Lawyers who are not partners or associates unless (1) the client consents to the retention of the other lawyer after a full disclosure that there will be a division of fees, (2) the division is made in proportion to services performed and responsibility assumed by each, and (3) the total legal fees do not clearly exceed reasonable compensation for the services rendered.
In the light of the Canon, the first sentence of the question should be answered in the affirmative provided there has been full disclosure to the client that the fee will be divided and provided the other conditions of DR 2-107(A) are, met It is felt that by advising the client of his rights upon arrest the forwarding lawyer has performed services and assumed responsibility, although in very small measure.
The question posed in the second sentence should be answered in the negative. There is no ethical obligation to divide a fee in the absence of an express understanding to that effect between the attorneys.
The answer to the question posed in the third sentence must be in the negative since the Canon clearly bars a division of the fee in a situation as here, where there is no relationship between the forwarding lawyer and the client.
February 8, 1972.