Hello and welcome to this Ethics Alert which will discuss the proposed additions to the Comment to Florida Bar Rule 4-5.8, which addresses the issue of what firm clients must be notified of a lawyer’s departure from the law firm. The BOG approved the rule amendments and the Bar will file an Omnibus Rules Petition with the proposed rule amendment with the Florida Supreme Court on October 15, 2016 (along with other proposed rule amendments). The new Rule 4-5.8 language and Comment is below with new language underlined and proposed rule revisions are here: 2016 Annual Florida Bar Rules Proposals.
RULE 4-5.8 PROCEDURES FOR LAWYERS LEAVING LAW FIRMS AND DISSOLUTION OF LAW FIRMS
(a) Contractual Relationship Between Law Firm and Clients. [no change]
(b) Client’s Right to Counsel of Choice. Clients have the right to expect that they may choose counsel when legal services are required and, with few exceptions, nothing that lawyers and law firms do affects the exercise of that right.
(c) Contact With Clients.
(1) Lawyers Leaving Law Firms. Absent a specific agreement otherwise, a lawyer who is leaving a law firm may not unilaterally contact those clients of the law firm for purposes of notifying them about 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.
(2) Dissolution of Law Firm. Absent a specific agreement otherwise, a lawyer involved in the dissolution of a 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.
Lawyers and firms should engage in bona fide, good faith negotiations within a reasonable period of time following their knowledge of either the anticipated change in firm composition or, if the anticipated change is unknown, within a reasonable period of time after the change in firm composition. The actual notification to clients should also occur within a reasonable period of time. What is reasonable will depend on the circumstances, including the nature of the matters in which the lawyer represented the clients and whether the affected clients have deadlines that need to be met within a short period of time.
For purposes of this rule, clients who should be notified of the change in firm composition include current clients for whom the departing lawyer has provided significant legal services with direct client contact. Clients need not be notified of the departure of a lawyer with whom the client has had no direct contact. Clients whose files are closed need not be notified unless the former client contacts the firm, at which point the firm should notify the former client of the departure of any lawyer who performed significant legal services for that former client and had direct contact with that former client.
Although contact by telephone is not prohibited under this rule, proof of compliance with the requirements of this rule may be difficult unless the notification is in writing.
In order to comply with the requirements of this rule, both departing lawyers and the law firm should be given access to the names and contact information of all clients for whom the departing lawyer has provided significant legal services and with whom the lawyer has had direct contact.
If neither the departing lawyer nor the law firm intends to continue representation of the affected clients, they may either agree on a joint letter providing that information to those clients, or may separately notify the affected clients after bona fide, good faith negotiations have failed. Any obligation to give the client reasonable notice, protect the client’s interests on withdrawal, and seek permission of a court to withdraw may apply to both the departing lawyer and lawyers remaining in the firm.
One of the issues which frequently comes up when a lawyer leaves a law firm is which clients must be notified of the lawyer’s departure under this rule. The new Comment language addresses this issue and states that the “clients who should be notified of the change in firm composition include current clients for whom the departing lawyer has provided significant legal services with direct client contact.” Of course, the language in the proposed rule is subject to interpretation; however, it should provide more guidance to lawyers and law firms regarding client notification when a lawyer leaves the firm. The Comment also states that the “obligation to give the client reasonable notice, protect the client’s interests on withdrawal, and seek permission of a court to withdraw may apply to both the departing lawyer and lawyers remaining in the firm.”
According to the Bar’s notice of the proposed rule changes: “Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition(s). Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.”
Bottom line: If approved by the Florida Supreme Court, this revision should provide more guidance to lawyers and law firms in providing notice to clients; however, it will also require analysis and interpretation of the term “significant legal services with direct client contact”.
Stay tuned…and be careful out there.
Disclaimer: this Ethics Alert is not an advertisement and does not contain any legal advice, 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.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670