ABSTRACT:

An inactive lawyer may not enter into a referral fee agreement with an active New Hampshire lawyer for matters that first arose after the change in status because that would violate the restrictions on the practice of law and present a great risk of misrepresentation.

ANNOTATIONS:

 The Committee believes that an inactive lawyer may not enter into a referral fee agreement with an active New Hampshire lawyer for matters that first arose after the change in status because that would violate the restrictions on the practice of law and present a great risk of misrepresentation.

We reaffirm our conclusion in Opinion 2016-17/01 that the inactive lawyer may accept fees from his or her prior firm in cases on which the now inactive lawyer worked, or brought to the firm, before the change of status, even though the fees are paid after the change.

The annotations are written by individual Committee members to assist the reader and are not meant to be part of the actual opinion. See e.g., United States v. Detroit Lumber Co., 201 U.S. 321 (1906)(dealing with the syllabus of Supreme Court opinions).

Our first concern in this matter is that the inactive lawyer, by engaging in what will necessarily be at least a somewhat substantive discussions with the prospective client, would be practicing law.

Another concern is that there is a substantial danger that the prospective client could be misled about the status of the inactive lawyer.

A third concern is that the prospective client may misunderstand the issues of confidentiality and privilege during the discussion.

Finally, permitting payments of referral fees to inactive lawyers would not further the purpose of New Hampshire’s somewhat unique referral fee rule.

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By the NHBA Ethics Committee
This opinion was submitted for publication to the NHBA Board of Governors at its October 21, 2021 Meeting.