Ethics opinion to deal with fee splitting
Ethics opinion to deal with fee splitting
Senior Editor
The Bar Board of Governors has directed the Professional Ethics Committee to prepare an advisory opinion on Bar members sharing fees with out-of-state lawyers who belong to law firms with nonlawyer owners.
The ethics panel had asked the board to direct it to draft an opinion with a “safe harbor” provision to protect Florida attorneys if they split fees in cases with attorneys from other jurisdictions who work in firms that have nonlawyer owners.
Currently, Washington, D.C., allows nonlawyers and the state of Washington allows limited license legal technicians to have an ownership interest in law firms. Additionally, many other countries allow nonlawyer ownership of firms.
Bar rules prohibit members from splitting fees with nonlawyers and from nonlawyers having any partnership of ownership interest in a law firm.
The board, at its December 9 meeting, issued a slightly different directive at the recommendation of the Board Review Committee on Professional Ethics. Instead of directing the PEC to prepare an opinion with a safe harbor, it instructed the panel to draft an opinion addressing the issue.
“To make it very clear, The Florida Bar does not allow nonlawyer ownership of law firms in Florida,” BRCPE Chair Carl Schwait told the board. “There’s a very small minority of jurisdictions here in the United States and plus several outside the United States that allow some form of nonlawyer ownership of law firms.”
The Vision 2016 Bar Admissions subgroup became concerned about what would happen if a Florida Bar member became co-counsel in a matter and consequently split fees with an attorney from another jurisdiction who belonged to a firm with nonlawyer owners. The subgroup went to the PEC to request an opinion to protect Bar members in those cases.
The committee, however, can only offer advice directly to Bar members making inquiries about their own prospective actions or at the direction of the Board of Governors, so the committee voted to ask the board to instruct it to prepare an opinion.
“Somewhere along the line you will determine whether lawyers should have some sort of safe harbor. . . when they co-counsel with a law firm that is in a jurisdiction that allows nonlawyer ownership of law firms,” Schwait said.
While the PEC voted 16-7 for direction to prepare an opinion to define a safe harbor for Bar members to share fees with out-of-state lawyers in firms with nonlawyer owners, the BRCPE “did not like that wording that was issued by the Professional Ethics Committee. So we changed it,” Schwait said. “We’d like to recommend to you that you direct the Professional Ethics Committee to adopt a formal advisory opinion on the issue of Florida Bar members dividing fees with out-of-state lawyers. . . when those lawyers are in firms in which there is nonlawyer ownership when nonlawyer ownership is allowed in that jurisdiction.” The opinion will also reiterate that nonlawyer ownership of law firms is not allowed in Florida.
“We’re not telling them to rule one way or the other way, just to do a complete determination as to whether lawyers in Florida deserve a safe harbor” when they work with lawyers from Washington, D.C., or the state of Washington, Schwait said.
The board unanimously approved the recommendation. Schwait noted the board would review any advisory opinion approved by the Professional Ethics Committee.
