ETHICS OPINION 252-1927

NUMBER 252 1927

Question. A. a lawyer, specializing in the tax law, discovers, while searching the records in a certain estate, that a certain deduction had been overlooked in the claims made by the attorney for the estate, which, if made, would have reduced the tax payable. The executor X was a lawyer and a member of the firm XYZ. which acted as his attorneys in administering the estate, A communicates with X and with XYZ and informs them of this claim that had been overlooked, representing that in the event that they move to reopen the decree, it would be proper to recognize his contribution to the services rendered, by way of a counsel fee, XYZ informed him that to make such an application would be to stultify themselves, and declined to enter into the agreement suggested.

Later on XYZ made an application to open the decree and correct the tax, using almost word for word A’s petition in a proceeding, the title of which he had brought to their attention at their conference. The decree was reopened and the omitted deduction was allowed and the estate got a rebate on the tax.

A learns of this by accident and repairs to the office of XYZ and suggests that under the circumstances, he is entitled to a counsel fee, which XYZ refuse and criticize him for requesting it.

In the opinion of your Committee, was it proper professional conduct for A to call the omission to the attention of his fellow lawyer who had omitted to make a proper claim in behalf of his client, and request compensation? On the other hand, was it proper professional conduct for X and XYZ to refuse to make an agreement with A on the ground that to bring the proceeding would stultify them? Was it proper professional conduct in XYZ having used the information furnished them by A to refuse to compensate him quantum meruit for his service in enabling them to protect their client’s right?

Answer. In the opinion of the Committee, the informant might properly volunteer the information, but he should not have solicited the compensation, and such information so given could not impose the professional obligation to compensate the informant. The stultification of the attorneys was not sufficient reason to neglect the client’s interest. The Committee, however, is not of the opinion that XYZ were under any professional obligation to compensate the informant, though they might with propriety do so, especially in view of the use of the petition. The Committee does not approve the practice of any deceit, and it considers that XYZ should have dealt candidly with the informant.