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121 N.J.L.J. 1037
May 19, 1988
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
Withdrawing Attorney Claiming
Referral Fee Under R. 1:39-6(d)
An attorney filed suit for both passenger and driver of a car.
Conflict developed when the defendant counterclaimed against the
Attorney for plaintiffs withdrew entirely and referred one
client, the driver, to a Certified Civil Trial Attorney. We are
asked whether under R. 1:39-6(d), this forwarding attorney may be
paid a referral fee.
We conclude that in this situation, a referral fee is not
In the Supreme Court directive, set out at 91 N.J.L.J. 81
(February 8, 1968), the Court made clear that where a conflict
develops on a counterclaim, an attorney may not continue to
represent either driver or passenger. See our Opinion 156, 92
N.J.L.J. 481 (1969).
In our Opinion 181, 93 N.J.L.J. 492 (1970), we held that the
Court Directive cited in our Opinion 156, supra, required an
attorney to withdraw from both driver and passenger cases and that
a forwarding fee to the referring attorney was improper.
In our Opinion 188, 93 N.J.L.J. 789 (1970), we held that an
attorney may not continue to represent both driver and his
passenger even when each waives the right to sue the other, citing
the Court Directive, supra.
The present inquirer urges that since the referring attorney
no longer represent either party concerned in the litigation, he
has no further interest and so may be paid a referral fee. However,
the conflict precluded the forwarding attorney from participating
for either party. As we said in Opinion 181, supra, payment of a
referral fee after withdrawal offends the Court's Directive.
It is argued that because R. 1:39-6(d) permits division of
fees without regard to services or responsibility, the forwarding
fee in this inquiry should be allowed. We hold that such permitted
division does not apply to conflict situations that compel
withdrawal from a case. Since the attorney may not continue in the
conflict situation, he may not profit through the referral.
While this opinion responds only to the specific question
raised by this inquiry, we observe that the attorney who withdrew
may be entitled to reasonable compensation for services rendered in
good faith to both parties before the conflict required withdrawal.
See our Opinion 304, 98 N.J.L.J. 449 (1975).
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