Ethics Opinion

Opinion 71-62

FLORIDA BAR ETHICS OPINION
OPINION 71-62
January 25, 1972
Advisory ethics opinions are not binding.
In disposing of clients’ files the dominant consideration should be the instructions and wishes of
the clients. Written inquiry should be sent requesting the clients’ advice as to their wishes in
disposing of their files.
CPR:

EC 4-6
Chairman Clarkson stated the opinion of the committee:
A member of The Florida Bar seeks our advice concerning procedures to be
followed upon change in the membership of a professional association. His letter
of inquiry details the following factual background:
The firm was comprised of six members, two associates and an affiliated
counsel. One of the members announced his withdrawal and acceptance of a
position with another law firm. A second member thereupon indicated an
intention to withdraw in order to practice as a sole practitioner. Several days later
two more members announced their decision to withdraw from the firm intending
to practice together. Several days after the latter decision was announced, the four
members agreed to create their own law firm upon withdrawal.
The four withdrawing members owned 52 percent of the outstanding stock of
the professional association under which organization the attorneys practiced law.
The remaining members of the firm own the remaining 48 percent.
As a result of negotiations between the withdrawing and remaining partners,
the following matters were agreed upon:
1. The withdrawing members took with them, after signing receipts therefor,
a number of client files, both open files on which they were working and closed
files that they had worked on.
2. A number of other files were to stay with the firm until a letter was
produced signed by the client directing the firm to turn over the files to the
withdrawing members.
3. Original wills for clients whose files were taken by the withdrawing
members were also taken by them after signing receipts therefor. These wills have
been held by the firm in safety deposit boxes owned by the firm, such custody at
clients’ direction.

4. It was agreed that mail directed to a withdrawing member at the firm
address would be opened by the firm unless marked personal and that on matters
relating to files taken by the withdrawing members, mail would be delivered to
the withdrawing members.
5. The firm established a policy for answering telephone calls to the firm
where the calling party requests to speak to one of the withdrawn members. Such
policy was to advise the caller that the member had withdrawn from the firm,
inquire of the caller as to whether he would like to speak to a remaining member.
The telephone number of the withdrawing member was given upon request of the
caller. Any remaining member who speaks with the caller would also furnish the
number for the withdrawn partner.
The opinion of your committee is requested as to the propriety of each of the
foregoing procedures, the first four of which were agreed upon by remaining and
withdrawing members, while the fifth was not.
We perceive some conceptual difficulty in treating this inquiry as a routine withdrawal by
one or more members of a law firm because (1) the law practice is carried on by a corporation
and (2) it appears that most of the members are “withdrawing” rather than “remaining.” We must
assume that it is the corporation which will continue to practice at the same location with such
name change as may be appropriate.
The Committee has concluded that the procedures as outlined, particularly paragraphs 1
and 3, should be supplemented to afford existing clients an opportunity to direct disposition of
their files or other legal papers. In determining the method of disposition, the instructions and
wishes of the client should be a dominant consideration. EC 4-6, CPR. Ideally, this can best be
accomplished by a written notice to these clients advising of the change in the membership of the
professional association and requesting the clients’ advice as to their wishes in disposing of their
files.
Subject to the foregoing comments, the Committee finds nothing objectionable in the
proposal set forth above.