Mark Dubois

I've been getting calls from lawyers wondering about retiring. One issue is whether you can receive a fee for a case after you give up your license. The answer is “it depends.”

Practice Book 2-55 allows a lawyer to file a notice of retirement instead of just turning off the phone, closing the mailbox and moving away. The advantage of using that rule is that you end your responsibility for client security and occupational tax payments and get yourself off the list of lawyers maintained by the Judicial Branch. Otherwise, it's possible that you might be dinged for failing to pay your client security fund payment and be administratively suspended. If you want to do something after practicing law, such as politics, teaching, or selling real estate, being a suspended lawyer is not a good resume item.

If you go the 2-55 route, shut down any advertising, close out your IOLTA account and delist it on your attorney registration. Follow the Grievance Committee guidelines (available online) for distributing any res in the account.

You can reverse the retirement at any time by sending a different form to the same people. When you do that, call Bar Counsel in East Hartford and speak with the Client Security Fund folks. They'll tell you how much you owe for the fund payment for the year you retired and the year you un-retired. Pay it and you're back in action.

While there's no ethics opinion or reported cases on earning lawyer's fees after retirement, there is some guidance about doing so after being suspended or disbarred, which is helpful. In an ethics opinion (CBA #13-01), it was opined that it would be OK for a fee to be paid/collected as long as “(1) a right to receive the fee existed and accrued before the suspension; (2) the suspension was unrelated to the client or case that generated the fee; and (3) the payment is made in a manner consistent with applicable rules.” A Connecticut Supreme Court case called Somers v. Busch held that a lawyer could collect for work done before she was suspended or disbarred on the basis of either contract or unjust enrichment. Logically, the same reasoning would apply to cases you worked on or referred before you retired. As long as you had the bona fides to receive or share a fee before you retired, there's no logical reason that you shouldn't be able to receive it after.

It's a bit trickier regarding new matters that come to you after you retire. The Ethics Committee has an interesting analysis of fees which seems to answer the question. In Opinion 2013-04, the CBA ethics folks addressed paying a referral fee in a case where the referring lawyer had a conflict. Reasoning that Rule 1.5(e) by necessary implication requires that each lawyer receiving a fee from the representation of a client, even if the scope of the lawyer-client relationship is only a referral to a new lawyer, establish a lawyer-client relationship with the client and, as attorney for the client, be bound by the Rules of Professional Conduct, including the requirement that the client be advised in writing of the referral fee and not object, the committee opined that no fee could be paid in a conflict case because no attorney-client relationship could be created. “We do not believe that referral fees are allowed to be paid to lawyers simply because lawyers possess a license; rather, we believe that referral fees are permitted to be paid to lawyers because the referring lawyer has a lawyer-client relationship and because the referring lawyer owes the client the duties prescribed by the Rules of Professional Conduct.”

Working from that analysis, it's easy to see that a retired lawyer, who could not enter into an attorney-client relationship with the referred client in the first instance, could neither be paid nor receive a fee or part thereof on a referral. I suppose the simple answer in such situations is for the retired lawyer to “un-retire,” pay the client security fund fees due, and then sign up and refer the client. Of course, with that relationship may come the responsibility to keep an eye on the case and receiving counsel. Un-retiring may also affect coverage on any tail malpractice policy, so think before you act on this.

A third approach is to keep your license current in case the big payday comes in. It's not all that much work to keep your registration current, and while you still need to register annually and file an occupational tax return, no tax or client security fund payments are due if you did not make more than $1,000 in the reporting year or practice law as a business.

So holding onto the license or letting it go may depend on whether you think there might be a new matter likely to come in or whether you'd rather wrap up the loose ends and move on. You decide.

Mark Dubois is on sabbatical. He remains of counsel at Geraghty & Bonnano, where he can be reached at [email protected].