Florida Contemplates Fee Sharing with Out of State NonLawyers

A proposed advisory opinion by The Florida Bar’s Professional Ethics Committee addresses fee-splitting with out-of-state lawyers when the out-of-state lawyer practices in a law firm with nonlawyer ownership. In the opinion, the committee states that a Florida Bar member should not be subject to discipline simply because a nonlawyer owner of an out-of-state law firm could receive a portion of the legal fees.

Partnerships with out-of-state lawyers are hardly new, but tensions between Florida’s Rules of Professional Conduct, and the organization and ownership of out-of-state-firms led the Florida Bar to clarify the matter.

Under Florida Rule of Professional Conduct 4-5.4, lawyers are prohibited from partnering or sharing legal fees with a nonlawyer. However, some U.S. jurisdictions—Washington, D.C. and Washington state—permit nonlawyer ownership of law firms.

The Florida Bar proposed advisory opinion follows in the footsteps of ABA Formal Opinion 464, and several other jurisdictions, in deciding that nonlawyer ownership of law firms in jurisdictions where permissible should not cause collaborating Florida lawyers to violate the prohibition against fee sharing set forth in Rule 4-5.4.

The underlying policy of Rule 4-5.4  concerns the improper influence of a nonlawyer may on a  lawyer’s professional judgment. However in the scenario analyzed in the proposed opinion, Florida Bar committee believes that a lawyer’s professional independence is not at risk simply because a nonlawyer owner receives a portion of an out-of-state lawyer’s fees.

Ultimately, the proposed opinion encourages attorneys to work with out-of-state lawyers despite differences in ownership structure, and allows clients to maintain flexibility in choosing counsel from other jurisdictions. 

To read the proposed opinion please click here.  

From the Florida Bar webpage:

Pursuant to Rule 4(c) and (d) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the proposed opinion. The committee will consider any comments received at a meeting to be held in conjunction with The Florida Bar’s Fall Meeting at 9:30 a.m. on Friday, October 13, 2017, at the Tampa Airport Marriott.Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than August 15, 2017.

Is Email Encryption the New Reasonable Standard? The ABA Opines

The ever-present threat to data security  in an increasingly digitized legal profession has redefined the  “reasonable efforts” standard for lawyers who handle client information. Nicole Black over at Above the Law offers a good summary of the recently released American Bar Association (ABA)  Formal Opinion 477, which addresses a need for lawyers to increase the security  of electronic communication by using encryption in certain situations to maintain competence and client confidentiality  She also explores New York State Bar Association (NYSBA) updated  Social Media Ethics Guidelines, which acknowledge and address newer state opinions in the realm of social media.

Click on the link below to access Nicole Black’s article from Above the Law and learn more about the potential impact of ABA Formal Opinion 477 and NYSBA’s Social  Media Ethics Guidelines on the legal community.

New Guidelines: ABA On Email And NYSBA On Social Media

In the Cloud? The Florida Bar Publishes Guidelines for Selecting a Cloud Service Provider

In the Cloud? The Florida Bar Publishes Guidelines for Selecting a Cloud Service Provider

The Florida Bar’s Technology Committee in collaboration with The Florida Bar’s Practice Resource Institute have published both a quick start guide to cloud computing and  more comprehensive due diligence guidelines to assist lawyers in selecting a cloud service provider.

The Florida Bar News reports:

“Two things are happening more than ever right now: Lawyers are using the cloud to store sensitive information; and lawyers are under attack from cyber criminals looking to steal sensitive information,” said Tech Committee Chair Al Saikali, who also chairs the Privacy and Data Security Practice area at Shook, Hardy & Bacon. “It was therefore important to develop a document that teaches lawyers about the cybersecurity and legal issues associated with the storage of cloud service providers.”

To read the article that contains links to the new guidelines click here

Conflicted? Representing Criminal Defendants When Your Partner Becomes The District Attorney

Recently, the New York State Bar Association (N.Y.S.B.A.) Committee on Professional Ethics held that a lawyer may represent clients in a criminal defense case being prosecuted by the district attorney who was once a partner at the lawyer’s firm given that two conditions are met. The first is that the district attorney must have severed all ties with the firm. The second is that a reasonable lawyer would not conclude there is a significant risk that the lawyer’s professional judgment on behalf of the clients will be adversely affected by the former relationship with the district attorney.

New York Rule 1.7(a)(2) governs the inquiring attorney in this matter. It prohibits a lawyer from representing a client if “a reasonable lawyer would conclude that … there is a significant risk that the lawyer’s professional judgment on behalf of a client will be adversely affected by the lawyer’s … personal interests,” unless, under Rule 1.7(b), the conflict is consentable and the lawyer has obtained consent, confirmed in writing.

The district attorney in this inquiry, as a public official, is governed by Rule 1.11(d)(1), which states, “[e]xcept as law may otherwise expressly provide, a lawyer currently serving as a public officer or employee shall not … participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is, or by lawful delegation may be, authorized to act in the lawyer’s stead in the matter.”

The committee found that the inquirer must determine whether a reasonable lawyer would conclude that the attorney’s personal relationship with the district attorney would adversely affect the representation of clients in criminal matters for which the district attorney’s office is responsible. The committee reasoned that if the inquirer knows that the district attorney participated personally and substantially in a case while in private practice, the inquirer may explore the provisions of applicable law and may have an obligation to report such information to the tribunal.

To read the entire opinion, click here.

 

Florida Proposes Adding Rule Regarding Short-Term Limited Legal Service Programs

Recently, the Florida Bar Board of Governors submitted a petition to the Florida Supreme Court to amend several Rules Regulating the Florida Bar. The proposal includes the addition of new Rule 4-6.6: Short-Term Limited Legal Services Programs.

Proposed Rule 4-6.6 loosens the application of the rules on conflict of interest in the context of short-term, limited legal representation. The Comment to the proposed rule acknowledges that in settings such as legal-advice hotlines, advice-only clinics, or pro-se counseling programs, although a client-lawyer relationship is formed, it is not realistic for a lawyer to thoroughly screen for conflicts of interest generally required before assuming representation. Typically, these services are restricted to a single meeting between the client and lawyer where the lawyer may give limited advice to a person or help to fill out legal forms.

The Florida Bar reasons that the addition of this rule would encourage more lawyers to engage in these limited representations, thereby increasing access to justice.

The rule—if passed—would apply to lawyers who represent clients through legal advice programs sponsored by nonprofit organizations, government agencies, court, bar associations, or ABA-accredited law schools.

Please click here to read the full text of the proposed amendments.