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THE PROFESSIONAL EMPLOYEE AGREEMENT, WHICH PROVIDED FOR THE SHARING OF CONTINGENCY FEES FOR CASES RETAINED BY AN ATTORNEY WHO LEAVES THE FIRM, DID NOT VIOLATE ETHICS RULES AND SHOULD HAVE BEEN ENFORCED (FOURTH DEPT). ​

The Fourth Department, reversing (modifying) Supreme Court, determined the Professional Employee Agreement (Agreement), which provided for sharing contingency fees for cases retained by an attorney leaving the firm, did not violate ethics rules and should have been enforced:

… [T]he Agreement did not violate rule 1.5 (g) of the Rules of Professional Conduct (22 NYCRR 1200.0) inasmuch as that rule “does not prohibit payment to a lawyer formerly associated in a law firm pursuant to a separation or retirement agreement” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.5 [h] … ) . Here, the Agreement at issue is not a fee-splitting agreement under Rule 1.5 (g) but, rather, an employment or separation agreement under Rule 1.5 (h). Such employment or separation agreements “should be construed, wherever possible, in favor of [their] legality” … and where, as here, they are clear and unambiguous on their face, they must be ” ‘enforced according to the plain meaning of [their] terms’ ” … .

… [T]he Agreement did not violate rule 5.6 (a) of the Rules of Professional Conduct (22 NYCRR 1200.0 … ). Although the Agreement did have some financial disincentives for respondents to continue working on the cases that were transferred from petitioner, “agreements involving financial disincentives are not per se illegal”  … [W]e conclude that the terms of the Agreement relating to the division of contingency fee awards did not have the effect of “improperly deter[ring] competition” … . Matter of Mattar v Hall, 2021 NY Slip Op 06477, Fourth Dept 11-19-21

 

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