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sunEthics |
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Breaking Up (A Law Firm) Is Hard To Do: Will New Bar Rule 4-5.8 Make It Easier? On October 6, 2005, the Florida Supreme Court issued an opinion implementing new Bar Rule 4-5.8 (as well as other rules and rule amendments). Bar Rule 4-5.8 mandates specific procedures related to communication with firm clients and other issues when a lawyer leaves a law firm or when a law firm dissolves. The rule was designed to give clear direction to lawyers who are leaving their law firms and law firms that are breaking up. The question is whether it will make breaking up easier or harder to do. Subsections (a) and (b) of the rule affirm the contractual relationship between the lawyer and the client, that the files are owned by the lawyer, and that the client has the right to counsel of choice. Subsection (c) of the rule imposes limitations and restrictions on the communication with current firm clients by lawyers who leave law firms and provides that, absent a specific agreement otherwise, a lawyer who is leaving a law firm is prohibited from unilaterally contacting current clients of the law firm to notify them of the anticipated departure or to solicit representation of the clients, unless the lawyer has approached an authorized representative of the law firm and attempted to negotiate a joint communication to the clients concerning the lawyer leaving the law firm and bona fide negotiations have been unsuccessful. Under subsection (d) of the rule, if a joint communication has not been successfully negotiated, unilateral contact by the departing lawyer or the law firm is allowed. The communication with the clients must give notice that the lawyer is leaving the law firm and provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms. The subsection also provides that any notice to the client required under rule must provide information concerning potential liability for fees for legal services previously rendered, costs expended, how any deposits for fees or costs will be handled and, if appropriate, that reasonable charges may be imposed to provide a copy of any file to a successor lawyer. Subsection (e) of the rule provides that, if a client fails to advise the lawyers and law firm of the client's intention in regard to who is to provide future legal services when a lawyer is leaving the firm, the client remains a client of the firm until the client advises otherwise. These restrictions and procedures also apply when a law firm dissolves. Under subsection (c)(2), absent a specific agreement otherwise, a lawyer involved in the dissolution of the law firm may not unilaterally contact clients of the law firm unless, after bona fide negotiations, authorized members of the law firm have been unable to agree on a method to provide notice to clients. Upon dissolution, and if no procedures for contacting clients has been agreed upon, subsection (d)(2) provides that unilateral contact by members of the law firm is allowed; however, all communication with firm clients must give notice that the firm is being dissolved and provide options to the clients to choose representation by any member of the dissolving law firm, or representation by other lawyers or law firms. Under subsection (e)(2), if a client fails to advise of the client's intention as to who is to provide future legal services when a law firm is dissolving, the client is considered to be a client of the lawyer who primarily provided the prior legal services on behalf of the firm until the client advises otherwise. The Florida Bar ethics rules did not previously address in detail the procedures for client communication which must be followed when an attorney leaves a firm or when a law firm dissolves. New Bar Rule 4-5.8 sets forth specific procedures and restrictions on client contact when lawyers are leaving a law firm or when the firm dissolves. The rule also clearly reaffirms that it is the client’s absolute right to decide which lawyer or law firm will continue the representation. All attorneys need to be on notice of the new rule and its requirements. |
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