concurring in result.
The majority opinion notes that: "an attorney engaging in [a fee splitting arrangement] is subject, in appropriate cases, to the full discipline of the supreme court, including disbarment from the legal profession." Op. at 429. Of course, that avenue is foreclosed in this case because our Disciplinary Commission has already determined that the ethics complaint "was without merit" and that the complaint did "not raise a substantial question of misconduct which would warrant disciplinary action." Record at 51. Given the nature of the controversy, the Commission's determination necessarily concluded *430that there was no such agreement. If there were such an agreement, it would, on its face, violate Rule 7.8(f) of the Rules of Professional Conduct.
Be that as it may, the factual determination made by the Commission has no bearing upon the facts alleged and susceptible to proof in this civil proceeding for breach of contract.1 For this reason, I agree that "for purposes of this appeal only," we may "assume that a fee splitting agreement existed between the parties." Op. at 428.
The majority decision today holds that invalidation of this fee splitting contract does not further the public good and that to the contrary, invalidation would "harm the public by denying Nelson, a nonlawyer, the benefit of her bargain." Op. at 429. The decision approves, as within acceptable public policy, agreements or arrangements which revolve around "ambulance chasing" and employment of agents for solicitation of legal representation. It says diminishing the integrity of the profession is acceptable to the citizens of Indiana so long as it is a non-lawyer who benefits from the conduct. I respectfully disagree with that analysis of public policy and that analysis of the right of persons to freely contract.
Nevertheless, upon authority of Kaszuba v. Zientara (1987) Ind., 506 N.E.2d 1, reh'g denied, I am compelled to concur in result. That case involved an Indiana agreement concerning lottery activity, which though legal in Illinois, was illegal and contrary to the then public policy of Indiana. The court held that the contract, though contrary to Indiana public policy, was nevertheless enforceable because the basic conduct contemplated by the contract would be legal where the conduct occurred. Thus before Indiana's constitutional amendment which changed the public policy, our supreme court approved conduct formerly thought to be illegal and unenforceable. Upon this rationale, I am able to concur in the determination that the trial court did not err in denying the motion for partial summary judgment.
. The Scope of the Rules of Professional Conduct states: "Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules ... are not designed to be a basis for civil liability, but reference to these rules as evidence of the applicable standard of care is not prohibited." Conversely, a determination that there has not been a violation of the Rules does not give rise to a defense to a civil action.