The Florida Bar

Ethics Opinion

Opinion 88-12

August 1, 1988
Advisory ethics opinions are not binding.
If certain ethical concerns are satisfied, a lawyer may accept assignments from a service that
rents lawyers to law firms and legal departments to fill temporary needs.
Note: Effective July 1, 1996, Rule 4-8.6 of the Rules Regulating the Florida Bar was
amended to permit Florida lawyers to practice law in the form of professional limited
liability companies or registered limited liability partnerships “organized or qualified
under applicable law.” Amendments to Rules Regulating The Florida Bar, 677 So. 2d 272
(Fla. 1996). See also, Chapters 621 and 622, Florida Statutes.

4-1.1, 4-1.4, 4-l.5(G), 4-1.6, 4-1.7, 4-1.9, 4-5.4(a), 4-5.4(c), 4-5.5(b)
F.S. Ch. 621
87-8; Los Angeles Co. 431, Maryland 84-15, New Mexico 1984-13, N.Y. City
1988-3, Virginia 609
The Florida Bar v. Consolidated Business and Legal Forms, Inc., 386 So. 2d 797
(Fla. 1980)

The inquiring attorney is contemplating involvement in a corporation that would provide
attorneys for temporary assignment to other attorneys, law firms, or legal departments on a rental
basis. He requests an opinion regarding the propriety of his involvement in his enterprise. The
inquirer also asks whether the opinion would differ if nonlawyers are shareholders, directors, or
officers of the corporation.
The inquirer describes the proposed enterprises as follows:
It is contemplated that a corporation for profit will do business in Florida as an
agency providing the services of lawyers to other lawyers and law firms and
departments for temporary assignments as needed by the supervisory lawyer.
Although the agency lawyer will be an employee of the corporation which in turn
will be responsible for all assignments, compensation and benefits, the legal work
will be performed under the direct supervisory authority of the contracting lawyer.
The corporation will charge for those services on an hourly or other durational
basis as is done by other temporary help services. To protect the confidentiality of
client information of the supervisory lawyer and to insure that agency lawyers do
not participate in an impermissible conflict of interest because of serial
assignments to lawyers with opposing clients, the contracts of the corporation
with its employee lawyers and of the corporation with the supervising lawyer, his
firm or employer will expressly provide the subordinate position of the agency
lawyer to the sole professional authority of the supervising lawyer and of the
continuing duty to maintain confidentiality and avoid conflicts.

An attorney’s involvement or participation in this type of temporary placement agency
raises a number of ethical concerns. The areas of concern include confidentiality, conflicts of
interests, professional independence, unlicensed practice of law, and improper division of fees.
These concerns, and suggested changes that might help minimize them, are discussed below:
An attorney who is placed by the proposed corporation would be ethically obligated to
preserve in confidence any information he or she obtained in the course of a representation. Rule
4-1.6, Rules Regulating The Florida Bar. This obligation would prevent the attorney from
disclosing any such confidential information to corporation personnel, absent consent of the
affected client.
The inquiring attorney indicates that the corporation plans to explicitly recognize this
obligation by including it in the contracts between the corporation and its participating attorneys
and in contracts between the corporation and its customers (referred to by the inquirer as
“supervising lawyers”). Contractual recognition of this obligation by all parties is a necessity.
Participating attorneys who are placed by the corporation with a supervising lawyer or
law firm are subject to all conflict of interest rules, including Rules 4-1.7 (general conflict of
interest rule) and 4-1.9 (former client conflict rule). Again, the inquiring attorney indicates that
the corporation-participating attorney and corporation-supervising lawyer contracts would
expressly acknowledge this ethical obligation. The contracts should provide that the supervising
lawyer or firm will not knowingly attempt to rent a particular participating attorney if doing so
would place him in conflict position. However, the primary burden of recognizing and avoiding
potential conflicts of interest must be borne by the participating attorneys and the corporation.
The corporation will need to establish an effective screening mechanism to be used before
assigning a participating attorney to a supervising lawyer or law firm. The nature of the
corporation’s business—the short-term placement of participating attorneys with a variety of
lawyers and law firms—necessarily requires that this screening procedure be sophisticated.
The corporation-participating attorney contract should provide that a participating
attorney will not be asked to undertake a representation that he or she is not competent to handle.
See Rule 4-1.1.
A participating attorney could not ethically allow the corporation to control the attorney’s
exercise of independent professional judgment in rendering services for clients or to interfere in
any way with the attorney-client relationship. Rule 4-5.4(c). (For example, the corporation could
not dictate to the participating attorney how much time he or she can or must spend on a
particular case). This must be specified in the corporation-participating attorney contract.
If nonlawyers are shareholders, directors, officers, or managing agents of the proposed
corporation, it is possible that the corporation’s activities could constitute the unlicensed practice
of law. See The Florida Bar v. Consolidated Business and Legal Forms, Inc., 386 So. 2d 797
(Fla. 1980). Of course, attorneys are prohibited from assisting nonlawyers in the unlicensed
practice of law. Rule 4-5.5(b). Questions regarding the unlicensed practice of law are beyond the
scope of an ethics opinion. Therefore, the inquiring attorney is urged either to make his own
determination after examining relevant Florida law or to request an advisory opinion on the
unlicensed practice of law pursuant to Rule 10-7.1.

A related issue is presented by the corporate form of the corporation. Florida attorneys
are not permitted to practice law in a corporate form other than a professional service corporation
organized pursuant to Florida Statutes Chapter 621. If the activities of the proposed business
corporation are considered the practice of law (and, again, such a question is beyond the scope of
an ethics opinion), any attorney employed by or having an ownership interest in the corporation
would run afoul of this prohibition.
Whether the temporary nature of the participating attorney-supervising lawyer
relationship need be disclosed to the supervising lawyer’s client would depend on whether the
client would likely consider the information material. See Rule 4-1.4.
Finally, particular problems are presented by the manner in which the proposed
corporation plans to charge for its services. The inquiring attorney states that the corporation
would charge for the participating attorney’s services “on an hourly or other durational basis as
is done by other temporary help services.” For example, the corporation would charge its
customers a certain amount per hour for the participating attorney’s services with a portion of
this amount going to the participating attorney and the remainder being retained by the
If nonlawyers are involved in ownership or management of the corporation, this billing
system (i.e, charging a certain amount per hour for the lawyer’s services, with only a portion of
that amount actually being paid to the lawyer) must be considered division of legal fees with a
nonlawyer in violation of Rule 4-5.4(a). See Florida Ethics Opinion 87-8; New York City Bar
Association Opinion 1988-3. See also Los Angeles County Bar Association Opinion 431;
Maryland State Bar Association Opinion 84-15; State Bar of New Mexico Opinion 1984-13;
Virginia State Bar Opinion 609.
This problem could be avoided if, instead of receiving a portion or percentage of the fee
charged for the participating attorney’s services, the corporation charged its customers a flat fee.
By handling the matter in this fashion the participating attorneys would receive 100 percent of
the fees being charged for their services and the corporation would receive a completely separate
fee for arranging the temporary employment placement.
Of course, the problems of fee division with nonlawyers could also be eliminated if
nonlawyers are not involved in the corporation’s ownership or management. Furthermore, if only
attorneys are involved in the corporation’s ownership or management, there will be no problems
concerning improper division of fees among attorneys. The general rule concerning division of
fees among attorneys, Rule 4-1.5 (G), applies only to fee divisions among attorneys not in the
same firm. The attorneys involved in the proposed corporation should be considered as being the
same firm for purposes of this rule.
In summary, it must be concluded that, because of the problems described above, the plan
proposed by the inquiring attorney is not ethically permissible in its present form.