Category Archives: Rule 4-5.8 amendment to comment 2018

Amended Comment to Florida Bar Rule 4-5.8, effective 2/1/18, clarifies client notice procedures when lawyers leave law firms

Hello and welcome to this Ethics Alert which will discuss the amended Comment to Florida Bar Rule 4-5.8, clarifying procedures when lawyers leave law firms, which became effective 2/1/18.  The Florida Bar filed a Petition with, inter alia, the proposed rule amendment with the Florida Supreme Court on October 15, 2016.  The Court approved the amended Comment in an opinion dated 11/9/17, and the revision became effective on February 1, 2018.  The SC case is: In re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), 229 So.3d 1154 (Fla. 2017) and the opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc16-1961.pdf

Florida Bar Rule 4-5.8 sets forth the required procedures when a lawyer leaves a law firm or when a law firm dissolves. The text of the rule was not changed substantively; however, the Comment was been revised to clarify the procedures and address issues which frequently arise in these circumstances.  The revisions include the following:

  1. when a lawyer leaves a firm or the firm dissolves or changes its members, the departing lawyer and the firm “should engage in bona fide, good faith negotiations within a reasonable period of time” after the change is known, and notice to clients must be given “within a reasonable period of time.”  This revision clarifies the time frame for negotiations to be “within a reasonable time.”
  1. the required notice to clients may be made by telephone; however, proof of compliance ”may be difficult unless the notification is in writing.”  This clarifies that the notice to clients may be by telephone; however, proving compliance with the rule when notice is made this way “may be difficult.”
  1. client notice should be given to “current clients for whom the departing lawyer has provided significant legal services with direct client contact”; however, notice to clients with whom the departing lawyer had no direct contact is not required.  This revision clarifies to which clients the client notice must be sent.
  1. to comply with the 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.”
  1. when neither the departing lawyer nor the firm intend to continue representing a client, the client may be notified with a joint notice (or separately if the parties are unable agree on a joint notice); however, any obligations to give notice, protect the client’s interests on withdrawal, and obtain required court permission “may apply to both the departing lawyer and lawyers remaining in the firm.”  This clarifies that the client notice obligation may apply to the firm and the lawyer leaving the firm.

Bottom line:  This Bar Rule amendment clarifies some of the issues which come up frequently regarding notice to clients when lawyers leave law firms or the law firm breaks up or changes members.

Be careful out there.

If you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

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.

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

 

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Filed under Attorney Ethics, Florida Bar, Florida Supreme Court, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers leaving law firms, Lawyers leaving law firms Bar Rule 4-5.8, Rule 4-5.8 amendment to comment 2018