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.

Public Defenders and Part-time Judges: Duties under the Misconduct Rule

Recently, the New York State Bar Association (N.Y.S.B.A.) Committee on Professional Ethics held that a public defender may not represent a client in the court where another public defender is a part-time judge because to do so would violate the public defender’s duties under Rule 8.4(f)—Misconduct.

Rule 8.4(f) prohibits a lawyer from causing a judge to violate his or her own ethical obligations under the Rules of Judicial Conduct not to “permit his or her partners or associates to practice law in the court in which he or she is a judge.”

In the inquiry before the N.Y.S.B.A., the attorney was a member of a public defender office and lived in an area where City Court judges serve on a part-time basis. These part-time judges are also permitted to practice law. Another member of the public defender office was a part-time judge in the City Court.

In reaching its opinion, the Committee reasoned that if the associated part-time City Court judge does not take steps to prevent other lawyers who are part of the same public defender’s office from practicing before the City Court, then the other public defenders—on their own initiative—must decline to make appearances or withdraw altogether.

To read the entire opinion, click here.

Zealous Advocacy Gone Too Far: Louisiana Attorney is Disbarred for Repeated “Shocking Disregard” of Obligations

In a recent per curium opinion, the Louisiana Supreme Court found an attorney to have permanently forfeited his ability to practice law in the state due to “a panoply of serious professional violations.” The Court stated, among other things, that the attorney “filed unsupported and duplicative pleadings, using offensive and abusive language, and has made baseless challenges to the authority, competency, and integrity of the federal court.”

This opinion finalizes a saga of repeated challenges stemming from a federal class action suit brought by the lawyer on behalf of victims of Hurricane Katrina. The lawyer’s behavior was a byproduct of his displeasure of a change in the court’s administration of Hurricane Katrina cases, and its assignment of a committee to coordinate the proceedings. With the record being “replete with [the attorney]’s vile and racially-derogatory communications made to members of the judiciary and bar,” the Louisiana Supreme Court found the attorney to lack the “moral fitness to practice law” in the state.

As a result, the Court adopted the state’s disciplinary board’s recommendation to permanently disbar the lawyer. This melee between the lawyer and the courts is an illustration of when zealous advocacy goes awry, fostering a complete disregard of the cornerstones of professionalism.

To read the full opinion, click here.

Office-Sharing Lawyers Found to Be in Same Firm

The Missouri Court of Appeals recently ruled that two attorneys who share office space may be members of the same firm and therefore not bound by the ethics rules on fee-sharing among unaffiliated lawyers.

In the underlying dispute, an attorney who rented office space from another lawyer agreed to split fees into cases they referred to each other. After moving out of the office, the attorney claimed that the fee-sharing agreement was invalid because it did not meet the requirements of Missouri Rule of Professional Conduct 4-1.5.

Rule 4-1.5(e) imposes requirements for fee division among lawyers who are not members of the same firm. As noted by the trial court, agreements that do not comply with the rule are unenforceable in Missouri. But the requirements of the rule do not apply when attorneys are in the same firm. Significantly, the comment to Rule 1.0(c) defines that two or more lawyers who present themselves to the public in any way suggesting they are a firm or conduct themselves as if they were a firm should be regarded as a firm under the Rules.

The court raised the following factors as evidence to support the finding that the attorneys held themselves out as being part of the same firm:

  • The attorneys shared space in a building with a single sign out front that read “Starke Law Offices”;
  • Clients entered through a door marked “Law Offices” that listed the attorneys with no indication they were unaffiliated;
  • The same phone number appeared on the sign and door;
  • Visitors calling the phone number were greeted the same way;
  • All visitors used the same reception area and were greeted by the same staff;
  • The attorney’s used the same forms;
  • One of the attorneys and his paralegal told referred clients he remained available if they had an issue with the lawyer he shared space with.

To read the full opinion, click here.

New Jersey: Prosecutors Cannot Publicly Display Seized Contraband

In February, the New Jersey Advisory Committee on Professional Ethics opined that a prosecutor is prohibited from making “extrajudicial statements featuring displays of seized drugs, weapons, or other contraband.” Such statements violate New Jersey Rules of Professional Conduct 3.6 (Trial Publicity) and 3.8 (Special Responsibilities of a Prosecutor).

The issue on tap: whether exhibiting seized contraband from a criminal investigation to the public was appropriate. The inquirer explained that displaying the seized drugs “would further public awareness” of the ongoing opioid drug epidemic and assist law enforcement in combating the epidemic. He further argued that the 2004 Rules amendments supersede New Jersey Supreme Court precedent. Specifically, that Rule 3.8(f) supersedes Rule 3.6 on this particular issue.

 Rule 3.8(f) allows statements that “have a substantial likelihood of heightening public condemnation of the accused when such statements are necessary to inform the public of the nature and extent of the prosecutor’s action and would serve a legitimate law enforcement purpose.”

The Ethics Committee disagreed with the inquirer. The prosecutor’s argument was overbroad, the Ethics Committee opined, and noted that the 2004 amendments dealt with a different scenario than opioid drug trafficking. The Committee cautioned that “[t]here would be very little left of the prohibition against prejudicial extrajudicial statements if mere heightened public awareness of criminal activity was sufficient to justify extrajudicial statements by prosecutors.” While other jurisdictions adopted language to Rule 3.6 that allowed lawyers to state “at the time of seizure, a description of the physical evidence seized, other than a confession, admission, or statement”, New Jersey purposely did not retain this language when it adopted Rule 3.6 in 1984.

While acknowledging the danger of the opioid crisis in New Jersey, the Committee was very clear in stating that “[e]xtrajudicial statements featuring displays of seized drugs, weapons, or other contraband, however, do not accord with New Jersey’s Rules of Professional Conduct.

To read the full ethics opinion, click here.