The Referral Fee and the ABA Rules of Model Conduct: Should States Adopt Model Rule 1.5(e)?

This Note examines the history behind DR 2-107 and the reasons for the ABA's adoption of Model Rule 1.5(e). It then analyzes DR 2-107 in depth to determine whether it has been effective in terms of advancing the policies and purposes it was designed to promote. The Note concludes that DR 2-107 is deficient for the following reasons: (1) members of the legal profession oppose and flagrantly violate the rule; (2) except in a few jurisdictions, violators of the rule are rarely prosecuted while even in those jurisdictions that do enforce the rule, the courts are vague in their interpretation of what the rule really prohibits; and (3) the rule ignores current business realities. In addition, this Note analyzes the Model Rule and concludes that the Model Rule ameliorates the shortcomings of the Code Rule.

Finally, based on this analysis, this Note recommends that other states follow New York's lead and adopt Model Rule 1.5(e).