Opinion 77-7, 77-9 & 77-10 (Consolidated)
FLORIDA BAR ETHICS OPINION CONSOLIDATED OPINIONS 77-7, 77-9 and 77-10 April 7, 1978 Advisory ethics opinions are not binding. It is improper for interstate law firms to maintain, under varying formats, a Florida office operated by a resident Florida attorney who is not a partner in the firm. A Florida lawyer may be a member of an interstate firm if the relationship is a bona fide partnership in which the profits and losses of the several offices are actually shared. Note: See, The Florida Bar v. Savitt, 363 So.2d 559 (Fla. 1978), which discusses the requirements of a bona fide interstate partnership. CPR: Opinions: EC 2-11, DR 2-102, DR 2-102(A)(4), (B), (C) and (D), DR 2-103, DR 2-107; Canon 3, Canon 6 65-15, 66-64, 70-29, 70-36, 70-55, 71-49, 72-29, 74-12, 74-48, 75-19, 75-41, 76-8, 76-10, 76-17, 76-51, 77-25; Connecticut Informal Opinion, 12/1/76 Vice Chairman Waas stated the opinion of the committee: The inquiring attorneys ask whether respective interstate law firms may maintain, under varying formats, a Florida office operated by a resident Florida attorney who is not a partner in the firm. The inquiries involve individual Florida attorneys occupying positions varying from that of a salaried associate of an out-of-state firm, a Florida lawyer being “of counsel” to an out-of-state firm, and a Florida lawyer establishing an association with an out-of-state firm which is not a partnership arrangement. In each case the Florida attorney’s name would be listed on the out-of-state firm’s letterhead which would contain that firm’s name. The Committee majority answers in the negative. The proposed conduct would be inconsistent with principles reflected in numerous prior Committee opinions rendered under the CPR. Opinion 74-12 disapproved of Florida branch offices of out-of-state firms designed primarily to serve out-of-state clients who happen to spend time in Florida. Opinion 74-48 affirms (as continuing to be valid under the Code) language from Opinion 65-15 (which was decided under the former Canons) [and has since been withdrawn] that a Florida lawyer may be a member of an interstate firm, with the proviso that “the partnership, however, must be a full, bona fide partnership in which the profits and losses of the several offices are actually shared according to the terms of the partnership agreement.” Opinion 72-29 reflects the requirement of a “true interstate partnership” with reference to a Florida lawyer’s affiliation with an out-of-state firm for the practice of law in Florida. Opinion 70-55 approves an arrangement between a Florida lawyer and an out-of-state lawyer for the practice of law in Florida only if the arrangement constitutes a partnership and not if the Florida lawyer is only associated with the out-of-state firm. As indicated in those opinions, the only Code definition and sanction of an interstate partnership is that contained in DR 2-102(D): “A partnership. . . between or among lawyers licensed in different jurisdictions.” Accordingly, the Committee majority does not find the proposed conduct to be sanctioned by either the Florida Code or by prior opinions of this Committee. As indicated in Opinion 70-55, the requirement of a true, actual, bona fide, legitimate partnership for those holding themselves out as partners is mandated by DR 2-102(C). Concurring Opinion The existence of additional, separate reasons for disapproving the conduct proposed in two of the inquiries—and the existence of concurring opinions by some Committee members as to those two inquiries, but only for those additional, separate reasons referred to below—requires that the formats under which the Florida offices would be operated under each of the three inquiries be set forth herein below in more detail. In inquiry 77-7, the question is whether a Florida attorney may be “associated” with an out-of-state firm as a Florida “Resident Associate” and identified on the out-of-state firm’s letterhead stationery as being the local office of that firm. Such stationery would contain at the top the out-of-state firm’s name, address and telephone number and would contain in the margins identifications of numerous “local offices” of the firm at various locations around the county, e.g., hypothetically for present purposes, a “Denver office,” a “Cleveland office,” etc. Such identifications of those other offices, hypothetically for present purposes as to a Florida office, would be in the following manner: “Miami, Florida office, John Doe, One Dade County Boulevard, Miami, Florida,” followed by John Doe’s telephone number. The Florida attorney’s “association” with the out-of-state firm—and apparently such associations of other “local offices”—would involve a contractual arrangement under which a “national network” of such Resident Associates is established, with the out-of-state firm whose name appears at the top of the letterhead acting as the principal office. Each Resident Associate would enter into a contract with the principal firm under which that firm agrees to refer cases to the Resident Associate, the Resident Associate agrees to accept referrals of cases and to show on his own, separate Florida letterhead that he is “associated” with the out-of-state firm, and the Resident Associate agrees to remit to the out-of-state firm 10% of fees collected from such referral clients. A separate “disclaimer contract” between the principal firm and each Resident Associate would state that the Resident Associate is an “independent contractor” and that neither the out-of-state firm nor the Resident Associate lawyer is responsible for the acts of the other. Additional reasons of the full Committee for disapproving the foregoing arrangement under inquiry 77-7 are as follows. The arrangement would be in violation of DR 2-102, especially 2-102(A)(4) as to lawyers which may be listed on a firm’s letterhead, and 2-102(B) as to practicing under a “name that is misleading as to . . . lawyers practicing under such name, or a firm containing names other than those of one or more of the lawyers in the firm. . .” See Opinion 76-8 as to avoiding misleading appearances which would be created by listing on a letterhead the names of lawyers who are not employees or members of the firm. See also Opinions 76-10 [since withdrawn] and 76-17 [since withdrawn] as to the misleading use of the term “associates.” In addition, the arrangement proposed in inquiry 77-7 would be violative of DR 2-103 as to solicitation of professional employment and violative of DR 2-107 as to splitting legal fees with another lawyer not in proportion to services performed and responsibilities assumed. In inquiry 77-10, an out-of-state firm would staff its Florida office with a Florida-admitted attorney who is paid a salary by the firm for which he works full-time, the Florida office using a letterhead containing the name of the out-of-state firm and listing the Florida lawyer’s name below and to the left of that name as “of counsel.” That arrangement is inconsistent with DR 2-102(B) and EC 2-11, which deal with practicing under a name that is misleading, and is also inconsistent with DR 2-102(A)(4), governing use of the designation of “of counsel.” As stated in Opinion 75-41, the term “of counsel” is defined to connote a continuing relationship with a firm, which relationship is other than that of an associate or a partner and which places the attorney in a less than fully active role. See also Opinions 72-29, 71-49, 70-36 [since withdrawn], 70-29 and 66-64 [since withdrawn]. Also, if an “of counsel” designation of a Florida lawyer in such a position would meet the foregoing definitional requirements, the Florida office of such an out-of-state firm would not meet the requirement stated in Opinion 74-12 and 74-48 that the Florida office of an out-of-state firm must include a full-time Florida practitioner and constitute an active and bona fide part of the firm’s practice. Dissenting Opinion A substantial minority of the Committee dissents as to the negative answer to inquiry 77-9 reflected in the majority opinion. In inquiry 77-9 the Florida office of an out-of-state firm would be staffed by a Florida-admitted associate of the firm, i.e., a full-time practicing Florida-admitted lawyer who is a full-time salaried employee of the firm. The Committee minority feels that such proposed conduct is not proscribed by the Code so long as the Florida lawyer is responsible for all of the firm’s Florida work and the firm’s letterhead and other permissible listings, in accordance with DR 2-102(D), make clear as to any lawyers whose names appear on the letterhead stationery and who are not admitted in Florida that they are not admitted in Florida and so long as the letterhead is not otherwise misleading. The minority shares the concern of the majority that the public not be misled. The minority feels that in order to avoid the letterhead being otherwise misleading, the arrangement must be brought fully within the provisions of DR 2-102(B) and EC 2-11 that “the name under which a lawyer conduct his practice [not]... mislead laymen concerning the identity, responsibility, and status of those practicing thereunder.” If the Florida work is being done by the Florida-admitted lawyer, those dealing with the firm should not believe otherwise. Accordingly, the minority would include the proviso that the letterhead affirmatively reveal the responsibility and status in an appropriate fashion of the firm’s Florida lawyer. For example: “Responsible for Florida practice: John Doe, associate.” See Connecticut Bar Association Committee on Professional Ethics Informal Opinion dated December 1, 1976. The Committee majority would concur that an arrangement involving a Florida office of an out-of-state firm should be fully within DR 2-102(B) and EC 2-11. Additional Observations Lying in the background of the consideration of many interstate partnership matters are questions of whether lawyers not admitted in Florida may thereby be engaged in the practice of Florida law, or create the appearance thereof, and whether the Florida office of an out-of-state firm might function simply or primarily as a “mail drop” for the firm’s Florida clientele whose work then is done elsewhere. The Committee is advised that this is not fanciful speculation. The opportunity for, or appearance of, the foregoing improper use for the interstate partnership concept would seem to be greater when an out-of-state firm’s Florida office is staffed by someone other than a full, bona fide partner who shares in the firm’s profits/losses and who has management responsibility on a level comparable to that of the firm’s out-of-state partners. We cannot assume that a lawyer admitted in one state is, or should be considered to be, a lawyer for all purposes in another state. The Ethical Considerations of Canon 3 relative to assuring the public in Florida of the requisite responsibility and competence of lawyers by requiring that those who practice law for Florida citizens be subject to the requirements, regulations and disciplinary procedures imposed upon members of The Florida Bar should not be ignored. We are in no position to take issue with the view that, rightly or wrongly, observed ethical standards as among various jurisdictions may be the consequence of the social and professional environment in which lawyers practice. Of course, Florida civil and criminal law is not the same as that elsewhere; but also Florida’s Code of Professional Responsibility is different in many significant respects from Codes elsewhere. See, e.g., Advisory Opinions 75-19, 76-51 [since withdrawn], and 77-25, which illustrate that the Florida Supreme Court did not simply “rubber stamp” a uniform Code of Professional Responsibility. Florida’s Continuing Legal Education program—a means of assisting to assure compliance with Canon 6, entitled “A Lawyer Should Represent a Client Competently”—is extensive and expanding. Florida’s disciplinary procedures for lawyers are important and the subject of constant critical evaluation and improvement. We do not believe it to be in the public interest simply to assume that such programs and procedures are alike in every jurisdiction. With the foregoing considerations in mind, the Committee is in unanimous agreement that it would be in the public interest that the Florida Code of Professional Responsibility be strengthened, clarified, and made more specifically applicable with reference to conduct of the type proposed in these inquiries.