Ethics Opinion

Opinion No. 76-26

December 1976

Summary: An attorney who is associated with his son in the practice of law should not handle any criminal cases being prosecuted by the district attorney's office in which his son serves as an assistant district attorney. In referring a person in need of representation to another attorney, the referring attorney should not gather the facts from the person but should refer him directly to the new lawyer and should not share in a division of the fee even with disclosure to the client.

Facts: An attorney who has a substantial criminal practice has decided not to handle any criminal cases in a particular county because his son, who is associated with him in the same law office, has been appointed an assistant district attorney in that county. When, however, the attorney is asked by a potential client to make a referral, he does so. The attorney asks our opinion on whether he can gather the facts from the client and transmit them to the lawyer to whom the case is referred and whether, after disclosure, he can accept a referral fee.

Discussion: Although the attorney has decided not to handle any criminal matters in the county involved, we must, in order to answer the Disciplinary Rules. For purposes of this opinion, we shall assume that the district attorney's office in which the attorney's son is employed handles all of the criminal prosecutions in the county. Based on the foregoing assumption, we are of the opinion that the Disciplinary Rules require the attorney to refrain from involvement in any criminal matter in the county. Consequently, we believe that the attorney should not gather the facts from the client but should refer the client directly to the new lawyer and should not share in a division of the fee even with disclosure to the client.
DR 5-105, one of several important conflict of interest sections in the code, states that "[a] lawyer should decline proffered employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment." If, under the section, an attorney must refrain from taking a case, no partner or associate of his could undertake the representation. In the same vein, Canon 7 provides that a client is entitled to "zealous representation." Finally, Canon 9 admonishes the lawyer to avoid "even the appearance of professional impropriety."
Because of their professional association, the attorney and his son could not, in a contested matter, represent separate parties whose interests are or might be adverse. DR 5-105(D); MBA Opinion Nos. 75-7, 76-19; Grievance Committee of the Bar of Hartford County v. Rottner, 152 Conn. 59, 203 A.2d 82 (Conn. S. Ct. of Errors 1964). Clearly, therefore, the attorney could not, even with the consent of his client, defend a criminal case being prosecuted by his son. See MBA Opinion No. 76-19. Nor could the attorney handle a case being prosecuted by another attorney in the son's office because, in our opinion, all the attorneys in the district attorney's office of a particular county are "associates" within the meaning of DR 5-105(D). Given the close professional and personal relationship which exists between the attorney and his son, it seems to us that to permit the attorney to defend a case being prosecuted by a lawyer in the son's office would, in the language of our Opinion No. 76-19, "make the 'zealous representation' of opposing parties and preservation of their 'confidences and secrets' ... appear highly improbable, and would create 'the appearance of professional impropriety.' " We wish, however, to emphasize that, absent other circumstances, the result would be different if the attorney and his son were not associated together in the practice of law.
In light of our conclusion that the attorney may not defend a person being prosecuted by an attorney associated with the son in the district attorney's office, it follows that he should not do more than refer the person to another lawyer if requested to do so. In the circumstances, we believe that any exchange of information between the attorney and the person in need of representation carries with it the appearance of impropriety, particularly since the exchange of information with an attorney who will not be involved in the case appears to serve no useful purpose.
Regarding the matter of referral fees, we noted in our Opinion No. 76-3 that the Disciplinary Rules, as adopted by the Supreme Judicial Court, do not require that a referral fee be based on the services or responsibility of the referring attorney. DR 2-107(A)(2) requiring this was not adopted by the court. Nevertheless, we believe that the payment of a referral fee is not appropriate in the situation where the referring attorney cannot handle the case because of a conflict of interest. In the latter situation, the payment of a referral fee gives the referring attorney a financial interest in a matter from which, because of the conflict of interest, he should completely separate himself. Under DR 2-107(A)(1), the referring lawyer may properly divide the total fee of both lawyers for "legal services" only if the "client consents to employment of the other lawyer after a full disclosure that a division of fees will be made." This necessarily implies that the client must first be the client of the referring lawyer--and this we have concluded cannot properly occur.

Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.