By Joy A. Bruner
Assistant Ethics Counsel
The Ethics Hotline receives numerous inquiries regarding the proper procedures for notifying clients when firms dissolve and/or attorneys leave firms.
There has not been a specific Rule of Professional Conduct addressing these issues. Rather, the Professional Ethics Committee has issued ethics opinions to provide guidance to Bar members.
This changes as of January 1, 2006, when new Rule 4-5.8 goes into effect. The rule emphasizes that clients have the choice of counsel and that generally lawyers and law firms can do nothing to affect the client’s right to choose counsel. See 4-5.8(b).
The new rule applies to all lawyers leaving firms or involved in a firm dissolution. This rule requires lawyers who are either dissolving a firm or leaving a firm to make a bona fide effort to negotiate a joint communication notifying clients of the change before the lawyers can unilaterally notify clients. Negotiations are to be with a designated lawyer or lawyers authorized by the firm to handle such negotiations.
If negotiations for a joint communication are unsuccessful, a departing lawyer can unilaterally communicate with clients. However, the rule sets out information that must be included in the communication. A lawyer departing from a firm who unilaterally contacts clients must inform the clients that the lawyer is leaving the firm and “provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms.” Rule 4-5.8(d)(1).
Similarly, in firms that are dissolving, if there is not a negotiated method of communication, lawyers in the firm may unilaterally contact clients to tell them of the firm’s dissolution. The communication must further “provide options to the clients to choose representation by any member of the dissolving law firm, or representation by other lawyers or law firms.” Rule 4-5.8(d)(2).
In both cases, the communication must provide information to the client regarding any potential responsibility the client has for fees and costs already incurred. The notice must also discuss how any fee and/or costs deposits will be handled and, if appropriate, give notice to the client that a reasonable charge may be imposed for copying the file for a successor attorney. Rule 4-5.8(d)(3).
The rule further provides for the scenario of a client who does not respond to the notice. If a client does not respond to notices informing the client that a lawyer is leaving a firm, the client is considered to remain a client of the firm until such time as the client gives notice otherwise. Rule 4-5.8(e)(1). In the case of a firm dissolution, a client who does not respond to notices of the dissolution is considered to be a client of the lawyer who had primary responsibility for the client’s matter until such time as the client indicates otherwise. Rule 4-5.8(e)(2).
The rule makes clear that it is not attempting to create new legal obligations. Subsection (a) states: “The contract for legal services creates the legal relationships between the client and law firm and between the client and individual members of the law firm, including the ownership of the files maintained by the lawyer or law firm. Nothing in these rules creates or defines those relationships.”
It is important to note that the rule makes no distinction between partners, shareholders, and associates. Prior to the enactment of Rule 4-5.8, Florida Ethics Opinion 84-1 stated that when an associate leaves a firm, the preferred method of notifying clients was for the firm and the associate to jointly send a letter to the affected clients informing them of the change and asking the clients to let the firm and the associate know who they wished to continue with their matters. If a joint letter could not be done, the opinion concluded that the associate could independently send a notification to the clients informing them of the associate’s departure and providing new contact information. However, the associate was not allowed to solicit the clients. The continuing validity of Opinion 84-1 will be considered by the Professional Ethics Committee at its January meeting.
Questions regarding Rule 4-5.8 or any of the Rules of Professional Conduct may be directed to the Ethics Hotline at 800-235-8619. The Ethics Hotline is open Monday through Friday from 9 a.m. until 5 p.m. E-mail inquiries may be sent to firstname.lastname@example.org.