Referral Fees

Last week’s Five For Friday included a question on referral fees. It generated several emails and calls, so I thought I’d post on the topic.

Vermont’s rules do not authorize straight referral fees.

Here’s the scenario: Client asks Lawyer for help in an area that Lawyer doesn’t practice.  Lawyer refers Client to Attorney.  Lawyer wants to be paid for the referral.  Under what circumstances, if any, can Attorney ethically pay Lawyer for the referral?

Believe it or not, we start with the advertising rule – Rule 7.2.

Rule 7.2(b) prohibits lawyers from giving “anything of value to a person for recommending the lawyer’s services.”  There are four exceptions.

One of the exceptions allows a lawyer to:

“refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these rules that provides for the other person to refer clients or customers to the lawyer if:

  • (i) the reciprocal agreement is not exclusive; and
  • (ii) the client is informed of the existence and nature of the agreement.”  Rule 7.2(b)(4).

A comment to the rule is instructive.

Comment [8] states that “[e]xcept as provided in Rule 1.5(e), a lawyer who receives referrals from a lawyer or nonlawyer professional must not pay anything solely for the referral,” but may enter into reciprocal referral agreements that comply with Rule 7.2(b)(4).

So, then, what does Rule 1.5(e) provide?

Rule 1.5(e) is Vermont’s rule on dividing fees between lawyers who do not work together. The rule authorizes a division of fees between lawyers who are not in the same firm only if:

  1. the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
  2. the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
  3. the total fee is reasonable.

I’m most often asked about paragraph 1.  Again, the Comment is helpful.

Comment [7] makes it clear that lawyers can divide fees based on “the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole.”  It goes on to indicate that “[j]oint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership.

Back to our scenario: it seems to me that Attorney cannot pay Lawyer solely for the referral.  Attorney and Lawyer may divide the fee if:

  • the total fee is reasonable
  • Client confirms the agreement in writing, AND,
  • the division is either
  • in proportion to the services each performs, OR,
  • Lawyer accepts ethical and financial responsibility for Attorney’s representation of Client.