BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 1996-10
(Inquiry No. )
Dealings with printer that employs suspended attorney.
An attorney may use the printing services of an appellate printer even though the printer has hired a suspended attorney as a commissioned salesperson, provided the attorney does not share any part of the legal fee with the suspended attorney and does not give anything of value to the printer in exchange for referring cases to the attorney.
Inquiring counsel’s former client an attorney, has been suspended for one year. The suspended attorney has been hired as a commissioned salesperson by an appellate printer who offers quality work at a competitive price. One of the clients that the suspended attorney formerly represented received an adverse decision on a motion and the client has retained the inquiring attorney’s office to handle the appeal.
Is it ethical to employ the services of an appellate printer who has hired a suspended attorney as a commissioned salesperson?
An attorney may use an appellate printer who employs a suspended attorney as a commissioned salesperson for printing services for an appeal of an adverse decision initially handled by the now-suspended attorney.
A lawyer must avoid in any way aiding the unauthorized practice of law (DR 3-101) and cannot divide legal fees with a non-lawyer (DR 3-102). We assume that the services to be rendered by an appellate printer merely consist of printing the documents for the appeal, and do not involve the practice of law. Since the only fees the appellate printer is charging is the fee for printing the appeal documents, there are no legal fees involved, and any commission that the salesperson receives is a commission on the printing and not a portion of any legal fees.
The inquiring attorney should, of course, be aware of DR 2-103(B), which provides that “a lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward of leaving made a recommendation resulting in employment by a client, except by any of the organizations listed in DR 2-103(D).” An appellate printer does not fall within the scope of DR 2-103(D). Thus, the inquiring attorney is prohibited from agreeing to use this particular appellate printer, even at a competitive price, in exchange for referrals. (The prohibition on a quid pro quo would apply even if the printer did not employ the suspended attorney — a lawyer may not give anything of value to any printer in exchange for a referral.)
In addition, the inquiring attorney cannot provide any compensation or consideration to the suspended attorney as a reward for referring this client. Also the suspended attorney cannot share in any legal fee received by the inquiring attorney, and cannot share in any printing fee above the usual fee received by the appellate printer.
Accordingly, the inquiring attorney may use the appellate printer that employs the suspended attorney, provided the inquiring attorney abides by DR 2-103(B), DR 3-101, and DR 3-102.
(Approved by the Executive Subcommittee on 6/18/96; approved by the fall Committee on 6/26/96)