ETHICS OPINION 458-1957 DIVISION OF FEES

NUMBER 458

QUESTION.

 

An attorney has been retained by plaintiff in a negligence action to substitute for another attorney with whom the client was dissatisfied. Prior to the substitution, the first attorney prepared and served the summons and complaint and the answer had been received. There had been no physical examination, no bill of particulars, and no other steps had been taken in the litigation.

 

In consenting to the substitution the former attorney did so in consideration of a lien of one-half the fee to be paid, plus disbursements which had been paid in advance by him. The substitution and the terms, and the status of the litigation, were known to and consented to by the client.

 

At the time of the consent, the first attorney was in difficulty and under indictment. This was known both to the client and to the second attorney. Since then the former attorney has been disbarred.

 

Is the second attorney required to honor the lien and forward a portion of the fee to the former attorney who is no longer a member of the bar in good standing and, if so, to what extent?

 

ANSWER.

 

In as much as at the time that the former attorney rendered services in the negligence action he was a member of the Bar in good standing, it is not improper that he receive a percentage of the fee ultimately paid for legal services. (See New York City Nos. 133, 146 and 538: New York County No. 277).

 

As to reasonableness of the division of the fee, this Committee does not undertake to fix proportions in which fees should be shared (See ABA ops. 27 and 204).

 

November 7, 1957.