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Ethics: Frequently Asked Questions

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1. I have received a subpoena for a client's file from the Internal Revenue Service. What should I do?

2. May I charge interest on past due accounts?

3. What is meant by the term "of counsel"?

4. I share office space with another attorney. May we use letterhead that shows both of our names but disclaims that we are a partnership?

5. An associate is leaving our firm. Which firm clients, if any, must be notified of the associate's departure?

6. How long must I retain closed files?

7. I am holding in my trust account settlement proceeds belonging to a client. The client has not contacted me, and I do not know his present whereabouts. What must I do with these funds?

8. Am I required to participate in the Interest On Trust Accounts (IOTA) program?

9. I represent a plaintiff in a case against a corporate defendant. Does Rule 4-4.2 prohibit me from contacting any current employees of the defendant corporation without consent of the corporation's counsel?

10. Does Rule 4-4.2 prohibit contacts with former employees of a represented corporation?

11. Several years ago, I represented a client in a residential real estate transaction. Now another client has asked me to represent her in suing my former client on a commercial contract matter. Ethically, what determines whether I can take the case against my former client?

12. In settling a case for my client, the plaintiff, is it ethical for me to agree not to represent any other clients in bringing similar suits against the defendant?

13. I anticipate that I will need to testify on my client's behalf. May another attorney in my firm represent the client at the trial in which I will testify?

14. May I send a "thank you" note to jurors after a trial?


The attorneys in The Florida Bar's Ethics Department provide informal advisory ethics opinions to members of The Florida Bar who inquire about their own contemplated conduct. To receive a written advisory opinion regarding your own contemplated conduct, write to: Florida Bar Ethics Department, 651 East Jefferson Street, Tallahassee, Florida 32399-2300. Include all of the relevant facts and identify the question to be addressed. To receive an oral advisory opinion regarding your own contemplated conduct, telephone the Ethics Department at 1-800-235-8619.

The answers to the following frequently asked questions necessarily are general in nature. Lawyers facing similar problems should consult the cited authorities. In the citations, "Rule" or "Rules" refers to the Rules Regulating The Florida Bar. The Rules Regulating The Florida Bar and Formal Advisory Opinions of The Florida Bar's Professional Ethics Committee are published on the website under “Rules Regulating The Florida Bar” and “Ethics Opinions” respectively.



1. I have received a subpoena for a client's file from the Internal Revenue Service. What should I do?

ANSWER: Rule 4-1.6 (the confidentiality rule) provides that, with certain limited exceptions, an lawyer "shall not reveal information relating to representation of a client" without the client's consent. A lawyer's files, which obviously contain information relating to representation of clients, are protected by the confidentiality rule. Therefore, absent consent of the affected client, a lawyer should refuse to voluntarily release a client's records to a third party, such as the IRS.

Once the lawyer is served with a subpoena, however, the issue changes from one of ethical confidentiality to one of evidentiary attorney-client privilege. See Comment, Rule 4-1.6. A lawyer whose client records are the subject of a subpoena from a third party should refuse to produce the records on the ground of attorney-client privilege if the privilege might possibly be applicable. Any doubts about applicability of the privilege should be resolved in favor of nondisclosure. If the third party then obtains a court order requiring production, the lawyer may comply with the order and release the records as ordered. Rule 4-1.6(d).

2. May I charge interest on past due accounts?

ANSWER: The Professional Ethics Committee of The Florida Bar has stated that there is no ethical prohibition against a lawyer charging a lawful rate of interest on liquidated fees or costs. A lawyer who wishes to charge interest on past due accounts, however, must do so either: (1) by written agreement with the client; or (2) in the absence of a written agreement, by giving the client reasonable notice of the intent to begin charging interest. The Committee viewed 60 days as constituting reasonable notice. See Florida Ethics Opinions 86-2, 71-26.
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3. What is meant by the term "of counsel"?

ANSWER: An "of counsel" relationship is more than a mere referral arrangement. A lawyer may be considered "of counsel" if he or she has a regular, continuing relationship with a lawyer or firm in a capacity other than that of partner or associate. Florida Ethics Opinions 72-29; 75-41; 71-49. Because of this close relationship, lawyers in an "of counsel" relationship are considered to be in the same firm for purposes of the conflict of interest rules. Florida Ethics Opinions 72-41; 61-20. ABA Formal Opinion 90-357 indicates that a law firm may be "of counsel" to another lawyer or law firm if the required close, continuing, regular relationship exists.

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4. I share office space with another lawyer - may we use letterhead that shows both of our names but disclaims that we are a partnership?

ANSWER: No. Rule 4-7.21(f) prohibits lawyers from stating or implying that they practice in a partnership or other organization unless that is true. Therefore, in order for lawyers to practice under a name such as "Smith and Jones," a bona fide partnership or professional association must exist. A statement that the lawyers are "not a partnership" could confuse and mislead the public. The Professional Ethics Committee of the Florida Bar has stated that in a bona fide partnership there is, among other things, a sharing of profits and losses. Florida Ethics Opinion 74-48. A professional association or professional service corporation must comply with the requirements of Rule 4-8.6.

5. A lawyer is leaving our firm. Which firm clients, if any, must be notified of the lawyer's departure?

ANSWER: Firm clients (whether brought to the firm by the departing lawyer or otherwise) for whom the departing lawyer rendered legal services should be advised that the lawyer is leaving. See Rule 4-1.4. The law firm and departing lawyer must engage in bona fide negotiations for a joint letter from the firm and the departing lawyer advising those clients of the lawyer's departure from the firm . If the lawyer and the firm cannot reach an agreement on a joint letter, the departing lawyer and/or firm may send a notice to the clients stating that the lawyer has left the firm, asking the client's to indicate whether they wish to be represented by the firm, the departing lawyer, or another lawyer, and follow other requirements specified in Rule 4-5.8.
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6. How long must I retain closed files?

ANSWER: With the exception of trust accounting records (6 years), contingent fee contracts and closing statements in contingent fee cases (6 years), and the statement of insured clients rights (6 years), there is no specific number of years for which lawyers are required to keep closed files. Similarly, there is no set time period after which closed files may summarily be destroyed. The Professional Ethics Committee has stated that the appropriate length of time to keep a file depends on such factors as the nature of the case and the type of material found in the file.

The committee, however, has established guidelines for lawyers who wish to dispose of closed files. The lawyer should first attempt to contact the clients and obtain their directions regarding disposition of the files. If the lawyer is unable to contact a particular client, the lawyer should review that client's file and remove any original documents or important papers (e.g., wills, contracts) that might later be vital to the client's interests. Any such papers must be indexed and retained for a reasonable length of time. The lawyer may then dispose of the remainder of the file. When disposing of the file, reasonable care should be taken to protect client confidentiality. Florida Ethics Opinions 81-8, 63-3.


7. I am holding in my trust account settlement proceeds belonging to a client. The client has not contacted me, and I do not know his present whereabouts. What must I do with these funds?

ANSWER: Rule 5-1.1(i) states that a lawyer holding trust funds for a missing client must make a diligent attempt to locate the client. While attempting to contact the client, the lawyer's trust account records must reflect that the funds are being held for a missing owner. If a diligent attempt to locate the missing owner is unsuccessful, the rule directs the lawyer to dispose of the funds pursuant to the procedure outlined in Florida Statutes Chapter 717.
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8. Am I required to participate in the Interest On Trust Accounts (IOTA) program?

ANSWER: The Supreme Court of Florida has stated that "all nominal or short-term funds belonging to clients or third persons which are placed in trust with any member of The Florida Bar practicing from an office or other business location with the State of Florida shall be deposited" into an interest-bearing IOTA trust account. Rule 5-1.1(g). See also 538 So.2d 448 (Fla. 1989). Information about setting up an IOTA account is available from The Florida Bar Foundation, which can be contacted at (407) 843-0045 or (800) 541-2195.


9. I represent a plaintiff in a case against a corporate defendant. Does Rule 4-4.2 prohibit me from contacting any current employees of the defendant corporation without consent of the corporation's counsel?

ANSWER: Rule 4-4.2 prohibits a lawyer from communicating concerning the subject of the representation with a person the lawyer knows to be represented by counsel in the matter, unless the other lawyer consents. In the case of a represented corporation, however, not all current employees of the corporation are within the scope of Rule 4-4.2. Unless corporate counsel's consent is obtained, the rule does prohibit contacts with current employees who have a managerial responsibility on behalf of the corporation (e.g., directors, officers) and with non-managerial employees whose acts or omissions may be imputed to the corporation for liability purposes (e.g., a non-managerial employee who was directly involved in the incident in controversy). Comment, Rule 4-4.2; Florida Ethics Opinion 78-4.

On the other hand, Rule 4-4.2 does not prohibit contacts with non- managerial employees who were not directly involved in the incident in controversy (e.g., non-managerial bystanders). Florida Ethics Opinion 78-4. Thus, these employees can be contacted without consent of corporate counsel.
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10. Does Rule 4-4.2 prohibit contacts with former employees of a represented corporation?

ANSWER: Opinion 88-14 concludes that it is ethically permissible for a lawyer to contact former managers and other former employees of a represented corporate party without corporate counsel's knowledge or consent, unless those former employees are in fact represented by the corporation's counsel. In making such contacts, however, the lawyer may not inquire into matters that are privileged. Additionally, the lawyer should clearly identify himself or herself and the capacity in which he or she is acting. Rule 4-4.3.

11. Several years ago, I represented a client in a residential real estate transaction. Now another client has asked me to represent her in suing my former client on a commercial contract matter. Ethically, what determines whether I can take the case against my former client?

ANSWER: Rule 4-1.9 sets forth a three-pronged test that must be satisfied before a lawyer can represent someone whose interests are "materially adverse" to those of a former client. Unless the former client consents after consultation, the lawyer may not: (1) represent the present client in a matter that is the same as, or substantially related to, the matter on which the lawyer represented the former client; (2) use information relating to the representation of the former client to the disadvantage of the former client, unless the information has become "generally known"; or (3) disclose information relating to the former client's representation unless the rules allow or require disclosure.

Contrary to what some lawyers believe, confidential information is not the sole test -- all parts of Rule 4-1.9 must be satisfied. See Brent v. Smathers, 529 So.2d 1267 (3d DCA 1988).
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12. In settling a case for my client, the plaintiff, is it ethical for me to agree not to represent any other clients in bringing similar suits against the defendant?

ANSWER: No. Rule 4-5.6(b) prohibits a lawyer from offering or making any agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties.

13. I anticipate that I will need to testify on my client's behalf. May another lawyer in my firm represent the client at the trial in which I will testify?

ANSWER: Yes. There is one major difference between the present lawyer-as-witness rule and the rule that appeared in the old Code. Under the former rule, if one lawyer in a firm was disqualified from representing a client because he or she would be a necessary witness on behalf of the client, the entire firm was also disqualified. Under the present rule, however, only the testifying lawyer is disqualified for this reason. Section (b) of Rule 4-3.7 expressly states that the remaining lawyers in the firm may represent the client at trial unless precluded from doing so for conflict reasons (e.g., unless the testifying lawyer's testimony will be prejudicial to the client).

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14. May I send a "thank you" note to jurors after a trial?
THE FLORIDA BAR JOURNAL/JANUARY 1991
ANSWER: No. Rule 4-3.5(d) prohibits a lawyer from initiating communication with a juror regarding the trial except to determine whether the verdict may be subject to legal challenge. But before initiating such communication, the rule requires that the lawyer have reason to believe that grounds for a challenge may exist and that the lawyer file a notice of intention to interview the juror. A copy of the notice must be delivered to the trial judge and to opposing counsel a reasonable time before the interview. See also F.R.C.P. 1.431, which requires that the lawyer file a motion with the court requesting the court's permission to interview the juror.

[Revised: 06-24-2016]