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Frequently Asked Ethics Questions

The answers to the following questions necessarily are general in nature. Attorneys facing similar problems should consult the cited authorities. In the citations, “Rule” or “Rules” refers to the Rules Regulating The Florida Bar and “Opinion” or “Opinions” refers to Formal Advisory Opinions of The Florida Bar’s Professional Ethics Committee.

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

Rule 4-1.6 (the confidentiality rule) provides that, with certain limited exceptions, a 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).

May I charge interest on past due accounts?

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 Opinions 86-2, 71-26.

What is meant by the term ‘of counsel’?

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. 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. Opinions 72-41; 61-20. ABA Formal Opinion, 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. In addition, when a lawyer is in more than one firm, the fee division rules will apply. The Professional Ethics Committee concluded in Opinion 94-7 that the fee division rules apply where a lawyer is “of counsel” to a law firm but also practices through the lawyer’s own firm.

I share office space with another lawyer – may we use letterhead that shows both of our names but includes a disclaimer that we are not a partnership?

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. Opinion 74-48. A professional association or professional service corporation must comply with the requirements of Rule 4-8.6.

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

Firm clients (whether brought to the firm by the associate or otherwise) for whom the associate rendered legal services should be advised that the associate 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. It 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 clients 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. For questions on this topic, see informational packet titled “Notifying Clients of Change in Firm Composition.”

How long must I retain closed files?

With the exception of trust accounting records (six years), contingent fee contracts and closing statements in contingent fee cases (six years), and the statement of insured client’s rights (six 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. Opinions 81-8, 63-3.

[Note: Rule 5-1.2(f) of the Rules Regulating The Florida Bar requires that trust accounting records must be retained for at least six years after conclusion of the representation. In addition, Rule 4-1.5(f)(5) requires that a copy of the written fee contract and closing statement in contingency fee cases be retained for six years after the execution of the closing statement, and Rule 4-1.8(j) requires that a copy of the signed statement of insured client’s rights be retained for six years after the representation is completed.]

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?

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.

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

The Florida Supreme Court 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 by calling FFLA (Funding Florida Legal Aid) at 800-541-2195.

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?

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; 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). Opinion 78-4. Thus, these employees can be contacted without consent of corporate counsel.

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

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.

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?

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 prongs of Rule 4-1.9 must be satisfied. See Brent v. Smathers, 529 So.2d 1267 (3d DCA 1988).

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?

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.

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?

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).

May I send a ‘thank you’ note to jurors after a trial?

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.

When must a fee contract be in writing?

Written fee agreements are required for all contingent fee contracts not just personal injury and wrongful death. Rule 4-1.5(f)(2) states that any agreement to represent a client where “the lawyer’s compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement” of a matter must be in writing, signed by the client. Additionally, any fee agreement that is nonrefundable in any part must be in writing. Rule 4-1.5(e)(1). A client must consent in writing to agreements that limit the scope of representation. Rule 4-1.2 (c) Agreements to follow the collaborative law process in family law matters also must be in writing. Rule 4-1.19 (b)

How do I change my official Bar name?

The Florida Supreme Court Clerk’s office requires the following: Send a letter or a completed Name Change Form to the Supreme Court Clerk’s Office requesting your name be changed on the roll of attorneys. The request may be emailed to [email protected] or mailed to Florida Supreme Court, Clerk’s Office, 500 S Duval St, Tallahassee FL 32399. Your request should include: your name as currently listed with The Florida Bar; your new name clearly divided into first, middle, and last names; and your Florida Bar number. If you wish for the name change order to be returned by mail, rather than to your registered email address, you must include a self-addressed stamped envelope with your mailed request. Please do not send any personal documents, such as copies of identification documents or marriage/dissolution documents, with this form. Such documents are not needed to process a name change request.

When can I disburse trust funds after depositing a check?

A. In general, a lawyer cannot disburse until trust funds are collected. “Collected funds” means funds deposited, finally settled, and credited to the lawyer’s trust account. A lawyer may disburse against uncollected funds in trust accounts only when one of the six enumerated exceptions in Rule 5-1.1(j) applies. Although it is permissible to disburse funds under the six exceptions, disbursement against uncollected funds is not required. Disbursement against uncollected funds is at the risk of the lawyer who is still the guarantor. The exceptions are:

  1. certified check or cashier’s check;
  2. check or draft representing loan proceeds issued by a federally or state-chartered bank, savings bank, savings and loan association, credit union, or other duly licensed or chartered institutional lender;
  3. bank check, official check, treasurer’s check, money order, or other instrument issued by a bank, savings and loan association, or credit union when the lawyer has reasonable and prudent grounds to believe the instrument will clear and constitute collected funds in the lawyer’s trust account within a reasonable period of time;
  4. check drawn on the trust account of a lawyer licensed to practice in the state of Florida or on the escrow or trust account of a real estate broker licensed under applicable Florida law when the lawyer has a reasonable and prudent belief that the deposit will clear and constitute collected funds in the lawyer’s trust account within a reasonable period of time;
  5. check issued by the United States, the state of Florida, or any agency or political subdivision of the state of Florida;
  6. check or draft issued by an insurance company, title insurance company, or a licensed title insurance agency authorized to do business in the state of Florida and the lawyer has a reasonable and prudent belief that the instrument will clear and constitute collected funds in the trust account within a reasonable period of time.

My clients owes me fees. Can I sue the client?

No. A lawyer cannot sue a current client. In Opinion 88-1, the Committee stated that a lawyer cannot take action against a client to enforce a fee agreement before the representation had ended, either by withdrawal or by conclusion of the client’s matter. The Committee reasoned that suing a current client would create an impermissible conflict of interest. See, Rule 4-1.7 Rules of Professional Conduct.

I am a party in litigation. Can I speak directly with the opposing party?

No. Generally, parties in litigation may communicate directly with one another about the subject of the litigation or related matters, even when the parties are represented by counsel. See, Comments to Rule 4-4.2. However, where one of the parties is a lawyer, more stringent standards apply. The opposing party does not lose the protection of the rule because opposing counsel is self-represented. Ethics opinions and case law in several states hold that a lawyer who is a party to litigation cannot speak directly to the opposing party because that lawyer “represents himself when he contacts an opposing party.” In re: Segall, 509 N.E.2d 988 (Ill. 1987). The same dangers to a nonlawyer opponent, arising from a lawyer litigant’s superior skills and legal knowledge, exist whether the lawyer is acting pro se or is represented by counsel.

Can I give a second opinion to someone who is represented by counsel?

Yes. A lawyer can provide a second opinion to someone who is represented by counsel concerning how their current lawyer is handling the case and may give information on the services the lawyer might provide. The lawyer should not solicit the person who is represented. See Florida Opinion 02-5.

What are the requirements for an interstate partnership?

The Supreme Court of Florida expressly permits the operation of interstate partnerships. In The Florida Bar v. Savitt, 363 So.2d 559, 560 (Fla. 1978), the Court held that an interstate partnership must be a “full, bona fide partnership that operates according to a partnership agreement which does not provide that profits and losses are shared among its members solely on the basis of the proportionate business either generated or handled by its Florida office.” The Florida office of an interstate partnership must be operated by a Florida Bar member who is a partner that supervises the Florida office on a continuing basis. The Florida office cannot be operated by a resident Florida attorney who is not a partner in the firm. Consolidated Opinions 77-7, 77-9, and 77-10. The Florida partner must practice law in Florida full time. Opinion 74-10. Additionally, the interstate partnership must be truly interstate with offices in Florida and in another state. An out-of-state firm is not permitted to open a branch office in Florida. Opinion 74-12.

Can I hire an out-of-state lawyer to work as an associate at my Florida law firm?

A Florida law firm can hire a lawyer licensed in another state as an associate only if that lawyer’s practice is limited solely to an area of law in which the lawyer is authorized by law to practice and is not required to be a member of The Florida Bar. The Supreme Court of the United States has held that if there is a federal rule or regulation which allows an activity, Florida cannot enjoin the activity as the unlicensed practice of law. Florida Bar v. Sperry, 373 U.S. 379 (1963). The out-of-state lawyer can be paid a salary for the work but cannot share any firm fees or profits that relate to the practice of Florida law. Out-of-state associates must state their limited area of practice or their jurisdictional limitation. Florida Bar v. Kaiser, 397 So. 2d 1132 (Fla. 1981). For example, the firm could list the lawyer as “Admitted to Practice in [other state] Only,” “Not Admitted to Practice in Florida,” or “Practice Limited to Federal Immigration,” with the best practice being to list both the lawyer’s jurisdictional limitation and practice area limitation. Questions about unlicensed practice may be directed to the Unlicensed Practice of Law Department of The Florida Bar, 651 E Jefferson St, Tallahassee, FL 32399-2300, or 850-561-5840.

Can I enter into a partnership with an out-of-state lawyer who is located in Florida?

The Supreme Court of the United States has held that if there is a federal rule or regulation which allows an activity, Florida cannot enjoin the activity as the unlicensed practice of law. Florida Bar v. Sperry, 373 U.S. 379 (1963). For example, in the area of immigration, the federal rules allow an attorney admitted in any state or territory to appear before the Department of Homeland Security (formerly INS) on immigration matters. 8 C.F.R. 292. Therefore, the activity is not the unlicensed practice of law. An out-of-state attorney cannot be a partner or shareholder of a law firm unless the law firm limits its entire practice to only to the area of law the out of state attorney is permitted to practice within Florida. Therefore, an out-of-state attorney who practices immigration can be a partner in a firm only if the firm limits its practice solely to federal immigration matters. The Florida Supreme Court has held that out-of-state attorneys who advertise immigration services must state their limited area of practice or their jurisdictional limitation. Florida Bar v. Kaiser, 397 So. 2d 1132 (Fla. 1981). For example, the firm could list the lawyer as “Admitted to Practice in [other state] Only,” “Not Admitted to Practice in Florida,” or “Practice Limited to Federal Immigration,” with the best practice being to list both the attorney’s jurisdictional limitation and practice area limitation. Questions about unlicensed practice may be directed to the Unlicensed Practice of Law Department of The Florida Bar, 651 E Jefferson St, Tallahassee, FL 32399-2300, or 850-561-5840.

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 E Jefferson St, Tallahassee, FL 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, call the Ethics Department at 1-800-235-8619.