NYSBA Ethics Opinion 48
Opinion #48 – 01/26/1967 (16-66)
client consent, deceased attorney, legal fees
Topic: Fee Settlement by Deceased Lawyer’s Estate
Digest: Lawyer winding up practice of deceased lawyer must have clients’ consent to perform work, may receive compensation from estate of deceased for work on which deceased received prepayment, but should not split fees with estate or with lawyer’s widow
Canon: Former Canons 26, 29, 34
The widow of A, a deceased member of the bar, has asked B to wind up his practice. B finds that (i) A had received his fee in many of the cases but the work is still to be performed and (ii) no fees have been paid as yet for other cases.
Two question are raised
1. What standards do the Canons of Ethics impose in this situation and
2. What procedure should be followed where new work is received in the office as a result of inquiry for A?
In considering this situation the interests of A’s clients are paramount and should be administered to solely with that objective in mind. (See Canons 27 and 29). Clients should be afforded a reasonable opportunity to retain the services of another lawyer if they so desire. Under no circumstance should B attempt to influence a client to retain him.As regards those cases where work remains to be done although the fee has actually been received prior to A’s death, it would seem that B is entitled to compensation from the state of A for such services as he may render, provided that the legal representatives of A’s estate concur in the action of A’s widow in asking B to wind up the practice and provided further that B first notifies each client so situate that he has been asked to wind up A’s practice by A’s widow and his legal representatives and the client assents to B taking care of his particular matter. A mutually satisfactory arrangement should be made with the legal representatives of A’s estate as to compensation to be paid to B for his services in closing out such matters.Turning now to those matters where no fee has been paid as yet, the legal representatives of A’s estate would have a claim on a portion of the fees collected by B for matters pending at the time of A’s death and followed through to completion by B, with the client’s knowledge and consent. We should call to your attention, however, the provisions of Canon 34 prohibiting a division of legal fees, except with another lawyer and then only based upon a division of service and responsibility. It would be improper to make payment of any portion of fees collected by B directly to the widow.Referring now to new matters coming into B based upon inquiry for A, no payment or arrangement for payment to the widow is proper in view of Canon 34 referred to above.