The Florida Bar

Ethics Opinion

Opinion 88-10

FLORIDA BAR ETHICS OPINION
OPINION 88-10
May 1, 1988
Advisory ethics opinions are not binding.
Choice-of-law principles will determine whether the contingent fee schedule and client statement
of rights provisions of Rule 4-1.5 apply to Florida Bar members practicing or residing
out-of-state. Similarly, the applicability of these provisions when lawyers licensed in different
jurisdictions are representing a client must be determined on a case-by-case basis.
Note: Out-of-state lawyers may obtain pro hac vice admission in Florida no more than 3
times in a single 365-day period. See, Rules Regulating The Florida Bar 1-3.10, 1-3.11, and
4-5.5; Rule of Judicial Administration 2.510.
RPC:
Opinions:
Case:

4-1.5(F), 4-1.5(F)(2), 4-1.5(F)(4), 4-1.5(F)(4)(b)1, 4-1.5(G), 4-5.5, 4-8.5; ABA
Model 8.5
Maryland 86-28, Michigan CI-709
Bernick v. Frost, No. A-716-84T3 (N.J. Super. 5/13/86)

Rule 4-1.5(F) of the Rules Regulating The Florida Bar establishes certain requirements
with which Florida Bar members must comply when contracting for, charging, or collecting a
contingent fee. Subsection (4) of this rule contains additional requirements, including a
maximum fee schedule, that must be satisfied when the fee is contingent upon the successful
prosecution or settlement of a personal injury or wrongful death matter.
The Professional Ethics Committee has been asked by the Board of Governors to address
the issue of whether, or to what extent, these rules apply to Florida Bar members who reside or
practice outside of the State of Florida.
There is no indication in the rule itself, or in the Florida Supreme Court’s per curiam
opinion adopting the rule, how such questions are to be answered. However, Rule 4-8.5 provides
that an attorney who is admitted to practice in Florida is subject to the disciplinary authority of
The Florida Bar “although engaged in practice elsewhere.” Problems may arise when the Florida
rules of conduct conflict with those in the other jurisdiction where the attorney is engaged in
practice. In such situations, the Comment to Rule 4-8.5 is relevant:
In modern practice lawyers frequently act outside the territorial limits of the
jurisdiction in which they are licensed to practice, either in another state or
outside the United States. In doing so, they remain subject to the governing
authority of the jurisdiction in which they are licensed to practice. If their activity
in another jurisdiction is substantial and continuous, it may constitute practice of
law in that jurisdiction. See Rule 4-5.5.
If the Rules of Professional Conduct in the two (2) jurisdictions differ, principles
of conflict of laws may apply. Similar problems can arise when a lawyer is
licensed to practice in more than one jurisdiction.

Where the lawyer is licensed to practice law in two (2) jurisdictions which impose
conflicting obligations, applicable rules of choice of law may govern the situation.
Thus, it seems that choice-of-law principles should be applied when determining whether
the requirements of Rule 4-1.5(F) apply in a particular situation to a Florida Bar member residing
or practicing out of state.
This choice-of-law approach has been used by courts and ethics committees from other
states. In Bernick v. Frost, No. A-716-84T3 (N.J. Super. 5/13/ 86), the court determined that
New Jersey’s, rather than New York’s, limitation on contingent fees applied to the personal
injury action in question. In reaching this conclusion, the court relied on choice-of-law principles
usually applied by New Jersey courts in contract cases. The court noted that, under these
principles, the applicable law was that of the jurisdiction having the most significant relationship
to the parties and to the transaction. This jurisdiction was New Jersey: both attorney and client
were New Jersey residents; the fee agreement was executed in New Jersey in a form
contemplating application of the New Jersey fee schedule; the attorney-client relationship
throughout the case subsisted in New Jersey; and most of the attorney’s performance was
rendered in New Jersey. Factors such as these are listed by the Restatement, Conflicts of Laws
(Second) as factors to be considered in determining which state has the most significant
relationship to the parties and to the transaction.
The Committee on Professional and Judicial Ethics of the State Bar of Michigan, in its
Opinion CI-709, addressed the issue of applicability of the Michigan Bar’s disciplinary rules to
its members who were also members of the bar of another state. The Committee concluded that
an attorney who is admitted in Michigan and in another state, but whose practice in no way
involves Michigan, will not be subject to discipline under the applicable Michigan standards for
conduct that conforms to the applicable standards of the other state. For an attorney to be subject
to the Michigan standards the conduct at issue must in some way involve Michigan or must
violate the standards of the other state. In adopting this opinion the Committee implicitly applied
the “most significant relationship” choice-of-law principle that was applied by the New Jersey
court in Bernick.
Similarly, the Maryland State Bar Committee on Ethics, in Maryland Opinion 86-28,
concluded that a Maryland attorney practicing in another state that had ethical restrictions less
stringent than those of Maryland should be deemed by Maryland authorities to have acted
ethically if he conformed his behavior to the other state’s rules of ethics. The Committee
apparently viewed this issue as a choice-of-law question, because in reaching this conclusion it
relied on the Comment to ABA Model Rule 8.5 (identical to Florida Rule 4-8.5 and Comment).
In view of Rule 4-8.5 and the authorities discussed above, the Professional Ethics
Committee believes that whether Rule 4-1.5(F) applies in a particular situation to a Florida Bar
member who resides or practices in another state must necessarily be determined on a
case-by-case basis. In making such a determination, the overriding consideration will be whether
Florida or the other jurisdiction in question has the most significant relationship to the client and
the case. Important factors to be examined include the client’s state of residence, the state where
the cause of action arose, and the state (or states) where suit may be filed.

In order to provide some guidance to Florida Bar members who may be uncertain
whether they must comply with the requirements of Rule 4-1.5(F) in a particular situation,
several examples will be analyzed below.
1.
A Florida Bar member is also licensed in another jurisdiction whose
contingency fee rules differ from Florida’s. He accepts representation of a client
on a contingency fee basis in a personal injury matter. The client is a resident of
the other jurisdiction, the cause of action arose in the other jurisdiction, and suit
will be filed there.
In this situation, the requirements of Rule 4-1.5(F) should not apply to the attorney’s
contract with the client. See Michigan Ethics Opinion CI-709. The client and the case have no
relationship to or connection with the State of Florida. Whether the Florida Bar member resides
in Florida or the other jurisdiction is relatively insignificant.
2.
A Florida Bar member is also licensed in another jurisdiction whose
contingency fee rules differ from Florida’s. He accepts representation of a client
on a contingency fee basis in a personal injury matter. The client is a resident of
the other jurisdiction and the cause of action arose there. Because the potential
defendant is a Florida resident, suit could be filed in Florida.
The requirements of Rule 4-1.5(F) should not apply to the attorney-client employment
contract in this situation, even if suit is actually filed in Florida. The relationship of the case to
Florida is too attenuated to warrant requiring the attorney to comply with the rule. Further, if the
applicability of the rule were dependent solely on where suit was filed, a Florida Bar member
who is also licensed in another jurisdiction with more attractive contingency fee rules might be
tempted to “forum shop” in order to obtain a higher fee.
The conclusions reached in the above general examples will not differ regardless of
whether the Florida Bar member resides in Florida. When determining which jurisdiction has the
most significant relationship to the client and the case, where the attorney resides is less
important than where the client resides and where the cause of action arose. As Rule 4-8.5
provides, an attorney licensed in Florida is subject to the Florida Bar’s disciplinary jurisdiction
regardless of where he practices.
More complex questions arise when lawyers from different states are involved in a case.
The examples below have been presented by a Florida attorney. In these examples, the Florida
attorney is licensed only in Florida (unless otherwise noted).
3.
An out-of-state lawyer representing an out-of-state client has entered into
a contingent fee contract lawful in his state calling for payment of attorneys’ fees
upon a schedule different than that set forth in Rule 4-1.5(F)(4). After doing a
substantial amount of work on the case, he decides that the case must be placed in
suit in Florida and forwards the case to a Florida attorney to represent the client.
From that point forward the Florida attorney will be doing a very substantial
amount of the work in the case although the out-of-state lawyer will be

participating in certain features of the case, particularly those matters necessarily
being handled in the residence of his client. Two questions arise:
A.
Must the client be furnished a copy of the Statement of Client’s
Rights before the Florida attorney becomes associated?
B.
If the out-of-state lawyer is unwilling to modify his contract to
comply with Florida’s limitations, can the Florida attorney represent the client by
limiting his “share” of the fee to the limitations set forth in Rule 4-1.5(F)?
The answer to question 3A is “yes” if the Florida attorney is participating in the
contingent fee. Rule 4-1.5(F)(4) provides that, in a personal injury action, any lawyer who
“enters into an arrangement . . . whereby the compensation is to be dependent or contingent in
whole or part upon the successful prosecution or settlement thereof” must comply with certain
listed requirements, one of which is that the client be furnished a Statement of Client’s Rights.
Thus, the Florida attorney must provide the client with a copy of the Statement of Client’s Rights
before he may ethically share in the fee in question.
Question 3B also must be answered “yes.” Obviously, the Florida attorney has no control
over the contract between the out-of-state attorney and the client. He can, however, conform his
own conduct in dealings with the client to Rule 4-1.5(F)(4). Further, the Florida attorney should
be aware that he may not ethically share in the fee unless the total fee charged to the client is
reasonable. Rule 4-1.5(G).
4.
An out-of-state attorney who has a contract with an out-of-state client
decides it is necessary that suit be filed in Florida. In order to comply with local
rules, he must associate a Florida attorney.
A.
If he pays the Florida attorney on a non-contingent basis, either on
a flat rate or an hourly basis, can the Florida attorney participate in the case
without providing the client with a Statement of Client’s Rights?
B.
If the ultimate payment of the fee is contingent upon success but is
not based upon a percentage of the recovery, can the Florida attorney without
court approval participate without providing the client with the Statement of
Client’s Rights?
Question 4A must be answered “yes.” As noted above, the requirements of Rule 4-1.5(F)
concerning the Statement of Client’s Rights apply when the Florida Bar member’s fee is
“dependent or contingent in whole or part” on successful resolution of the case. For this reason,
the answer to the question asked in example 4B is “no.” (Whether the contingent fee is based
upon a percentage of recovery is not relevant except in determining whether the maximum fee
amount permitted pursuant to Rule 4-1.5(F)(4)(b)1 has been exceeded.)
5.
The Florida attorney represents a client and for various reasons finds it
necessary to file a “protective suit” in some foreign jurisdiction. This might be in
a circumstance in which jurisdiction over a defendant is questioned, and in order
to prevent the statute of limitations from running in a foreign jurisdiction the

Florida attorney employs an out-of-state attorney to file a lawsuit to toll that
statute of limitations.
A.
If the Florida attorney defers payment of that attorney and agrees
to pay him a fee upon the contingency that the Florida attorney recovers, must the
Florida attorney have him sign a contract with the client?
B.
If the Florida attorney immediately pays that attorney an attorney’s
fee for the service, must he have that attorney sign a contract with the client?
Rule 4-1.5(F)(2) provides that every attorney who, in connection with a particular matter,
enters into an employment agreement in which his compensation is to be contingent in whole or
part upon the successful outcome of that matter must reduce the fee agreement to a written
contract signed by the client and himself. In example 5A, the out-of-state attorney’s
compensation for services rendered in the action is contingent upon the successful outcome
thereof.
It is true that Rule 4-1.5(F) governs the conduct of Florida Bar members and, of course,
the out-of-state attorney in this example is not a member of The Florida Bar. However, Rule
4-1.5(F)(2) further provides that each attorney who participates in the fee shall sign a written
contract with the client. Consequently, it would be unethical for the Florida attorney to share a
fee with the out-of-state attorney unless that attorney enters into a written contract with the
client. (Because the out-of-state attorney will not be paid unless there is a recovery, the paying of
that attorney by the Florida attorney for services performed must be viewed as a division of
fees.)
In example 5B, the out-of-state attorney’s payment is not contingent on the outcome of
the action. Therefore, the requirements of Rule 4-1.5(F) are inapplicable and the out-of-state
attorney need not enter into a written contract with the client.
6.
In representing a client the Florida attorney finds it necessary to file a
lawsuit in some foreign jurisdiction. In accordance with that jurisdiction’s
requirements, the Florida attorney employs a local attorney to serve as local
liaison counsel. The attorney will have little, if any, real responsibility.
A.
If the Florida attorney pays the attorney on a non-contingent basis,
must he have the attorney sign a contract with the client?
B.
If the Florida attorney pays the attorney out of his fee upon the
contingency that he wins, must he have the attorney sign a contract with the
client?
C.
If the Florida attorney pays the attorney out of his fee upon the
contingency that he wins with the other attorney’s fee being in some way
contingent upon the amount of the recovery, must the other attorney sign a
contract with the client?

The answer to question 6A is “no.” The fee arrangement is not a contingent one, and
accordingly, the requirements of Rule 4-1.5(F) are inapplicable in this situation.
For the reasons discussed in connection with example 5A, the answer to questions 6B and
6C is “yes.”
7.
An out-of-state attorney with an out-of-state client and an out-of-state
lawsuit seeks to have a Florida attorney participate in the trial of the case. The
Florida attorney will be paid on a contingent basis. (Presumably the Florida
attorney is either licensed in the other state or will be admitted pro hoc vice so
that he may appear in the case.)
A.
Can the Florida lawyer participate without court approval if the
out-of-state fee contract does not comply with Rule 4-1.5(F)?
B.
Must the Florida lawyer obtain a signed copy of the Statement of
Client’s Rights from the out-of-state client?
The answer to question 7A is “yes.” The other state clearly has a more significant
relationship to the client and the cause of action than does Florida, and so that state’s contingent
fee rules will be applicable. As previously noted, the fact that the Florida attorney resides in
Florida is relatively insignificant.
Similarly, question 7B must be answered “no” because the client and the cause of action
have a more significant relationship to the other state than to Florida.