NEW YORK STATE BAR ASSOCIATIONProfessional
Ethics Committee Opinion
Opinion #48 - 01/26/1967
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
estate 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.