Category Archives: Attorney Ethics

ABA issues Formal Opinion 487 providing guidance regarding fee divisions in contingency cases when a lawyer is replaced

Hello everyone and welcome to this Ethics Alert, which will discuss the recent American Bar Association Formal Opinion 487, which provides guidance regarding the requirements of fee divisions in contingency fee matters when the initial lawyer is replaced by a successor lawyer.  ABA Formal Opinion 487 is here:  https://www.americanbar.org/content/dam/aba/images/news/2019/06/FormalOpinion487.pdf

ABA Formal Opinion 487 clarifies that a lawyer, who is a successor counsel in a contingency-fee matter, must notify the client, in writing, that a portion of any fees recovered may be paid to the original counsel. The opinion addresses a common misunderstanding about which model rules apply to successor relationships in contingency fee agreements, and the duties of successor counsel.

The initial lawyer in a contingency fee matter will often assert a lien on the proceeds when the lawyer is terminated or is required to withdraw; however, if the client employs successor counsel, the client may not understand there is a continuing obligation to pay the original lawyer for the value that lawyer contributed or was entitled to under the original contract.

The opinion states that lawyers may erroneously believe that ABA Model Rule 1.5(e) (or its state equivalent) (division of a fee between lawyers who are not in the same firm) governs this situation; however, Rule 1.5(e) only applies when there is division of fees between lawyers from different firms who are simultaneously representing a client or maintaining responsibility for the matter, not when there is successive representation. Rule 1.5(e) specifically requires that lawyers who are simultaneously representing a client and dividing a fee in a matter either divide the fee in proportion to the services delivered or assume joint responsibility for the representation.

When a lawyer no longer represents the client and there is a successor lawyer, there is no joint responsibility since the initial lawyer has no further responsibility after the withdrawal or termination and, according to the opinion, Model Rule 1.5(b) and (c) would apply to the successor lawyer in the fee relationship with the client.

Comment 2 to 1.5 states that, “an understanding as to fees …must be established”; however, the rule provides no specific time frame in which that understanding must occur. The opinion notes that under 1.5(a), client consent must be obtained before the fee is divided, which can occur up to the time of the conclusion of the matter and prior to disbursement of any money.

The opinion states that the duty to disclose the original lawyer’s potential claim and entitlement to some portion of the recovery does not constitute an “unreasonable burden” on successor counsel since, although a client may discharge a lawyer at any time for any reason, the client may be unaware of obligations to pay both the successor lawyer and the initial lawyer.  The opinion states that the successor counsel must address and clarify any confusion and inform the client, in writing, that the original attorney may have a claim against the contingency fee.

In many jurisdictions (including Florida), the initial lawyer may or would be entitled to, at a minimum,  the quantum meruit value of the lawyer’s services and the exact recovery and division of fees may not be known until the end of the case; however, the successor lawyer still has a duty to inform the client about a potential fee split.

The opinion also observes that, in many instances, the fees paid to both attorneys will not affect the client’s recovery, since a client cannot be required to pay more than one contingency fee when switching attorneys; however, if the client’s original counsel was terminated for cause, the initial lawyer may not have any claim to fees on the recovery.

Finally, according to the opinion, if the successor lawyer is required to negotiate fees with the initial lawyer on the client’s behalf, the successor lawyer must advise the client and obtain a waiver to avoid issues with Rule 1.7 conflict of interest regarding the disbursement of the funds.  Also, if a dispute arises regarding the disbursement of the funds, the successor lawyer has the obligation under Rule 1.15(e) to retain the funds in the trust account pending resolution of the dispute (and, in many jurisdictions, including Florida, the lawyer may be required to place the disputed funds in the court registry if the dispute cannot be resolved).

Bottom line:  This ABA opinion provides clear guidance on the Model Bar rule requirements when there is division of fees after the initial lawyer withdraws or is terminated and the client hires a successor counsel in contingency matters; however, lawyers must be aware that ABA opinions provide guidance regarding the ABA Model Rules only and each lawyer must research his or her own jurisdiction’s Bar Rules before taking any action.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

 

 

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Florida Bar Board of Governors approves proposed Bar rule prohibiting misleading law firm information in all lawyer advertisements

Hello everyone and welcome to this Ethics Alert, which will discuss the recent approval of revisions to Florida Bar Rule 4-7.13 by the Florida Bar Board of Governors (BOG).  If implemented, the proposed revisions would prohibit misleading law firm information in all Florida lawyer advertisements.

As I previously reported, the agenda for the BOG’s May 26, 2019 meeting included final action on a proposed amendment to Florida Bar Rule 4-7.13 related to misleading law firm advertisements. The BOG ethics committee previously voted not to approve a proposal to add Bar Rule 4-7.13(c), which would have stated:

It is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the internet or other media, including directly or through a group advertising program.”

The revised proposed rule would broaden the prohibition to include all advertisements stating or implying that a lawyer is affiliated with the advertising lawyer or law firm in a way that misleads a person searching either for a particular lawyer or law firm or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.  The proposed rule is below.

RULE 4-7.13 DECEPTIVE AND INHERENTLY MISLEADING ADVERTISEMENTS 

(b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain: 

(11) a statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

The proposed rule will now undergo a review process and will be sent to the Florida Supreme Court in a petition for potential approval and implementation.

Bottom line:  As I have previously reported, if the revised Rule 4-7.13 prohibiting all of these types of misleading advertisements is implemented by the Florida Supreme Court, the rule would be consistent with other jurisdictions that have considered the issue.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

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Florida Bar’s Board of Governors considers final action on proposed rule revision prohibiting misleading law firm information in all advertisements

Hello everyone and welcome to this Ethics Alert, which will discuss the potential final review of potential revisions to Florida Bar Rules 4-7.13 by the Florida Bar Board of Governors (BOG), which would prohibit misleading law firm information in advertisements.

The BOG’s agenda for its May 24, 2019 meeting includes final action on a proposed amendment to Rule 4-7.13 related to misleading digital advertisements.  As I previously reported, the BOG ethics committee previously voted down a proposal to add Bar Rule 4-7.13(c) which would have stated that “it is inherently misleading or deceptive for a lawyer to intentionally use, or arrange for the use of, the name of a lawyer not in the same firm or the name of another law firm as words or phrases that trigger the display of the lawyer’s advertising on the internet or other media, including directly or through a group advertising program.”

The revised proposed rule would prohibit all advertisements from stating or implying that a lawyer is affiliated with the advertising lawyer or law firm in a way that misleads a person searching either for a particular lawyer or law firm or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.  The proposed rule revision is below.

RULE 4-7.13 DECEPTIVE AND INHERENTLY MISLEADING ADVERTISEMENTS

(b) Examples of Deceptive and Inherently Misleading Advertisements. Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain:

(11) a statement or implication that another lawyer or law firm is part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.

Bottom line:  As I previously blogged, if the BOG takes final action on the proposed revised Rule 4-7.13 prohibiting all of these types of misleading advertisements (and if the Florida Supreme Court implements the revised rule), this would be consistent with other jurisdictions that have considered the issue.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

 

 

 

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California lawyer suspended for 30 days for failure to disclose client’s death while continuing to litigate matter

Hello everyone and welcome to this Ethics Alert which will discuss the recent California Supreme Court Order which suspended a lawyer for failing to disclose the death of his client while continuing the litigation. The case is In the Matter of: Steven Pabros, Case No. 17-O-05369.   The Stipulation Re Facts, Conclusions of Law and Disposition are here: https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2280292&doc_no=S254475&request_token=NiIwLSIkTkw6WyBdSCM9SE9IMEA0UDxTJiNeVz1SICAgCg%3D%3D and the May 2, 2019 California Supreme Court Order is here: http://members.calbar.ca.gov/courtDocs/17-O-5369.pdf

According to stipulated facts, the lawyer represented Alfeo and Leann Mattei, who were commercial landlords, as defendants, individually and as co-trustees of a trust in a civil suit that was brought by tenants whose antique shop was damaged by a fire in 2011. The fire started in the business of an adjacent tenant who sold the contents of storage units. The antique shop tenants claimed that the landlords knew the storage business was a fire hazard but did nothing about it.  The landlords claimed in a counterclaim that the contract required the tenants to indemnify them.

After a trial, the jury found the landlords liable based upon a theory of passive negligence; however, the trial judge found that the negligence was active and rendered a judgment notwithstanding the verdict. The lawyer appealed the judge’s findings.  While the appeal was pending, one of the landlords (Alfeo) died. The lawyer ultimately prevailed on the appeal, and the case returned to the trial court.

According to the stipulated facts, “Respondent learned of Alfeo Mattei’s death in or about June 2016 after the Court of Appeal remanded the case but failed to inform the court or opposing counsel, as required by Sonoma County Superior Court Local Rule 4.1(A). Local Rule 4.1(A) states “When a party to a case dies, the attorney for that party shall promptly serve and file a notice with the court.”

The lawyer failed to inform the court (or opposing counsel) of the death of Alfeo, even though Alfeo was the only person who could testify about the landlord’s contractual intent since he other landlord (Leann) was not involved in the lease.  The lawyer stated that he believed that he could establish intent by legal argument, by cross-examination or by use of an expert. He successfully opposed the tenants’ motion for summary judgment, and a trial was scheduled for April 2017.

On the first day of the trial, opposing counsel asked the lawyer why Alfeo was not on the witness list and the lawyer did not answer. The trial judge heard pretrial motions and opposing counsel commented on the fact that Alfeo had not been in court. Opposing counsel again asked whether Alfeo would testify, and the lawyer again did not answer.

Opposing counsel then conducted an internet search during a break in the proceedings, learned that Alfeo had died, and informed the judge.  The judge asked the lawyer if that was true, and the lawyer responded: “He has passed, yes.”.  The judge sanctioned the lawyer approximately $31,000.00 for continuing to litigate the case for more than a year without informing the court or the opposing counsel of the death and the judge also reported the order to the California State Bar.

The lawyer appealed the judge’s sanction, which is pending, and the judge also granted the tenants’ motion for summary judgment, finding that there was no triable issue of fact on intent behind the lease.  That order is also on appeal.

The lawyer stipulated to a 30-day actual suspension, one-year stayed suspension, and a three-year probationary period with a condition that he attend Bar Ethics School and pay costs.  The May 2, 2019 Supreme Court Order approved the discipline.

Bottom line:  In this case, a defendant died during the pendency of litigation and the lawyer who represented him failed to advise the judge or opposing counsel (even after he was asked multiple times by opposing counsel) and he continued to litigate the case.  This case is somewhat unusual since many of the reported cases involve lawyers who are representing plaintiffs who die during ongoing litigation and fail to advise the judge and opposing counsel.

This lawyer apparently concluded that he could defend the matter without the testimony of the client; however, he clearly should have informed the judge and opposing counsel that his client had died and that he was planning to proceed without the client’s testimony.  The failure to disclose the death violated the local rule and the disciplinary rules, and the lawyer was suspended for 30 days with one year suspended.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

 

 

 

 

 

 

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Filed under Attorney discipline, Attorney Ethics, joe corsmeier, Joseph Corsmeier, Lawyer discipline, Lawyer discipline failure to advise court of client death during litigation, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer suspension for failing to advise court of client death during litigation, Uncategorized

Florida Supreme Court rejects any Bar rule prohibiting lawyers from belonging to private services which refer to both lawyers and doctors

Hello everyone and welcome to this Ethics Alert which will discuss the recent Florida Supreme Court Opinion which rejected any Bar rule prohibiting lawyers from belonging to private services which refer to lawyers and doctors. The case is In Re: Amendments to Rule Regulating The Florida Bar 4-7.22, Case No SC18-881.  The April 15, 2019 opinion is here: https://efactssc-public.flcourts.org/casedocuments/2018/881/2018-881_disposition_145774_d25.pdf

A majority of the Florida Supreme Court (with Justice LaBarga dissenting) rejected any Bar rule that would have prohibited lawyers from belonging to services that refer callers for legal and other services stemming from the same incident.  In 2018, the Court issued an opinion implementing the Bar’s proposed qualifying provider rules and directed the Bar to draft and submit an additional rule prohibiting lawyers from using qualifying providers offering legal and other services stemming from the same event.

The April 15, 2019 opinion stated that, when the Court recommended a revision of Florida Bar Rule 4-7.22 last March, a majority of those justices wanted to further expand the rule to prohibit attorneys from belonging to referral services (now called qualifying providers) which refer callers for both legal and nonlegal services needed from the same event.  Those legal services are typically related to accidents or injuries where the callers need both medical and legal help.

The opinion referred to Justice Lawson’s partial dissent in the 2018 opinion and dismissed the case.  In his partial dissent in that case, Justice Lawson wrote that he disagreed with the majority only on requiring the Bar to submit a new rule banning lawyers from belonging to entities that also referred callers to other professional services emanating from the same incident. He noted the Special Committee on Lawyer Referral Services initially made that proposal in 2012. The Board of Governors considered that recommendation but instead voted that making certain disclosures to the client was sufficient.

In his partial dissent from the April 15, 2019 opinion, Justice Labarga noted that, in the 2018 opinion, “(the Court) comprehensively amended rule 4-7.22 to establish a single regulatory scheme under which lawyer participation in services that connect prospective clients to lawyers, such as matching services, are subject to the same restrictions as lawyer referral services, legal directories, and other similar services regulated by The Florida Bar.”

“Nevertheless, we expressed continued concern with respect to how certain lawyer referral services operate in Florida, particularly those that refer prospective clients to other professionals and occupational disciplines for services arising out of the same incident or transaction. I concurred in the conclusion that additional measures were needed to safeguard against potential harm…in my view, the amendments the majority rejects today are critical to ensure all services that connect prospective clients to lawyers first and foremost operate in a manner that protects and furthers the public interest.”

The dismissal of the pending case ends a multiple year review of the Bar’s lawyer referral service rules, which began when the Special Committee on Lawyer Referral Services of the Florida Bar’s Board of Governors (BOG) submitted a report in 2012.  That report recommended stricter regulation of for-profit referral services and participating lawyers and among its recommendation was a prohibition of lawyers belonging to services that also referred callers to nonlegal services stemming from the same incident.

The BOG rejected the recommendation that lawyers be prohibited from lawyers belonging to services that also referred callers to nonlegal services stemming from the same incident stating that disclosures to the client were sufficient along with a requirement that the lawyer making such a referral must believe it is in the client’s best interest.

The Bar submitted those proposed revised rules to the Court in 2014.  The Court rejected those amendments and directed the Bar to submit a rule that required that all for-profit referral services be owned or managed by a Bar member and that lawyers could not belong to services that also referred callers for nonlegal work resulting from the same incident.

The BOG committee then redrafted the previously proposed rules and defined any company or service that links a lawyer and potential client as a “qualifying provider” when the participating lawyers are subject to Bar rules; however, the BOG rejected the proposed requirement that a Bar member own or manage a for-profit service or a prohibition on lawyers belonging to qualified providers that refer to others. Those revised proposed rule revisions were submitted to the court in 2016 and oral arguments were held in 2017.  Some justices closely questioned the Bar representative about the Bar’s failure to follow its earlier instructions.

Bottom line:  The issue of whether lawyers can participate with for profit services which refer to both lawyers and medical providers has been settled…for now.  Lawyers can continue to participate in such services and those services do not have to be owned solely by lawyers.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Joseph Corsmeier

about.me/corsmeierethicsblogs

Leave a comment

Filed under 2018 Florida lawyer referral qualifying provider rule revisions, 2018 Florida lawyer referral service matching service rule revisions, Attorney Ethics, Florida 2018 lawyer referral service qualifying provider rule revisions', Florida Bar, Florida Bar 2016 Lawyer referral rule revisions, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer Referral Services, Uncategorized