How must a law firm organized as a professional association tell clients about its corporate form, and can a nonlawyer retirement plan be funded from firm profits?

Plain-English summary

A firm of Florida lawyers contemplating formation of a professional association under Chapter 621, Florida Statutes, asked how it should comply with the safeguards ABA Opinion 303 had set for corporate practice, in particular the requirement that restrictions on the liability of non-servicing lawyers be made apparent to clients. The committee recounted the Florida Supreme Court's express approval of professional-association practice in In re: The Florida Bar, 133 So.2d 554 (Fla. 1961), and the legislature's sanction in Chapter 621, and concluded that practicing through a professional association is proper under the amended Canon 33 and Article XV of the Integration Rule.

On the notice question, the committee concluded that a professional association whose corporate name includes the language required by Section 621.12, Florida Statutes ("Chartered," "Professional Association," or "P.A."), sufficiently notifies clients of its nature by carrying that language on its letterhead. If the association operates under a fictitious name, the committee found it sufficient that the lawyer generally notify the client at the outset of the retainer that the ostensible partnership is a professional association, with fuller disclosure of the legal consequences only if the client inquires. The committee regarded the concern about misleading the public as more theoretical than practical.

On the second question, the committee addressed whether stockholders could fund employee retirement or pension plans from corporate profits. It noted ABA Opinion 303's view that basing a nonlawyer employee's salary on a percentage of net profits would involve a forbidden division of fees under Canon 34, but read the later ABA Opinion 311 as inconsistent with that view, since 311 approved a retirement plan whose benefits were measured by employee salary and payable only if profits existed, treating profits as a contingent limitation rather than a measure of compensation. The committee concluded that so long as a firm adopts a conventional deferred-compensation or retirement plan for lay and legal personnel funded by firm profits, and the plan is a reasonable and ordinary fringe benefit for bona fide employees rather than a subterfuge, Canon 34's concern with fee-splitting is not offended, regardless of whether the firm is organized as a professional association.

Currency note

This opinion was issued in 1969, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. (The opinion carries a 68-series number under the bar's numbering, but its printed date is January 17, 1969.) It applied the former Canons 33 and 34 and the then-new Article XV of the Integration Rule on practicing law in corporate form. Firm names are now addressed by Rule 4-7.21 and sharing fees with nonlawyers by Rule 4-5.4. As the bar's own note records, Rule 4-8.6 was amended effective July 1, 1996 to permit practice as professional limited liability companies or registered limited liability partnerships. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: How does a professional association tell clients it is not a traditional partnership?

A: Under this opinion, including the language required by Section 621.12 ("Chartered," "Professional Association," or "P.A.") in the corporate name, carried on the letterhead, gives clients adequate notice of the firm's nature.

Q: What if the firm uses a fictitious name?

A: The committee found it sufficient that the lawyer notify the client at the outset of the retainer that the ostensible partnership is a professional association, with fuller disclosure only if the client inquires.

Q: Can a firm fund a retirement plan for its nonlawyer staff out of profits?

A: Yes, in the committee's view, where the plan is a conventional, bona fide deferred-compensation or retirement plan for lay and legal personnel rather than a subterfuge. It concluded that Canon 34's concern with fee-splitting is not offended in that case.

Background and rules framework

The opinion applied the former Canons 33 (firm names) and 34 (division of fees) together with the then-new Article XV of the Integration Rule on professional associations. Firm names and letterhead are now addressed by Rule 4-7.21 of the Rules Regulating The Florida Bar, and sharing fees with nonlawyers by Rule 4-5.4; the Model Rule analogues are Rules 7.5 and 5.4. The form-of-practice question is now governed by Rule 4-8.6.

Citations and references

Rules of Professional Conduct:

• Canons 33 and 34 [Code of Professional Responsibility; firm names now in Rule 4-7.21, fee division in Rule 4-5.4]
• Rule 4-8.6 [forms of practice; amended effective July 1, 1996 per the bar's note]

Statutes:

• Chapter 621, Florida Statutes (professional service corporations), including Section 621.12 (name requirements)

Cases:

• In re: The Florida Bar, 133 So.2d 554 (Fla. 1961), approving practice through a professional association
• Amendments to Rules Regulating the Florida Bar, 677 So. 2d 272 (Fla. 1996), cited in the bar's note for the 1996 Rule 4-8.6 amendment

Other opinions cited:

• ABA Opinion 303
• ABA Opinion 311

See also

• FL Bar Ethics Op. 69-20: Deceased Partner Names in PA Name

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-58/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-58-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 68-58
January 17, 1969
Advisory ethics opinions are not binding.
A professional association that includes the designations "Professional Association," "P.A.," or "Chartered" in the firm name gives clients adequate notice of its corporate form. If the corporation operates under a fictitious name, it is sufficient notice if the client is informed at the outset of the retainer that the firm is a professional association. It is permissible that a retirement plan for nonlawyer employees is based in part on firm profits.
Note: Effective July 1, 1996, Rule 4-8.6 of the Rules Regulating the Florida Bar was amended to permit Florida lawyers to practice law in the form of professional limited liability companies or registered limited liability partnerships "organized or qualified under applicable law." Amendments to Rules Regulating the Florida Bar, 677 So. 2d 272 (Fla. 1996). See also, Chapters 621 and 622, Florida Statutes.
Canons: 33, 34
Opinions: ABA 303, 311
Case: In re: The Florida Bar, 133 So.2d 554 (Fla. 1961)
Statute: F.S. Ch. 621
Chairman MacDonald stated the opinion of the committee:
In its Opinion 303 (rendered November 27, 1961), the Committee on Professional Ethics of the American Bar Association held it proper for attorneys to practice in a corporate form provided that specified guidelines were observed.
In the course of its interpretation of the various relevant Canons, the Committee observed as follows:
Canon 33 provides that in the selection and use of a firm name, no false, misleading, assumed or trade name should be used. The name under which a group of lawyers practices would be misleading if it failed to reveal any restrictions on the responsibility of the individual lawyers for the legal services rendered.
The Committee concluded this phase of its opinion by requiring the observance of two safeguards, including the following:
2. Restrictions on liability as to other lawyers in the organization must be made apparent to the client.
By the latter reference, the Committee referred to those provisions of various state statutes allowing for the formation of professional associations or corporations which, in effect, provide that lawyers, other than the ones rendering the legal service to a client, are not under any personal liability beyond the obvious one extending to the limit of their investment in the corporation. In other words, such liability of the non-servicing stockholder was not unlimited as would be the case in a typical partnership.
A firm of Florida lawyers, presently contemplating the formation of a professional association under the provisions of Chapter 621, Florida Statutes, inquire as to what, if any, means should be followed by the professional association or corporation and its individual stockholders to comply with these safeguards.
It should be observed at the outset that, of course, the opinion of the eminent Committee of the American Bar Association, while highly persuasive, is not necessarily binding upon members of The Florida Bar. Beyond this, Florida lawyers are confronted with a somewhat different situation than that confronting the American Bar Association Committee which interpreted the various statutory procedures then in the course of adoption in several states in the light of the existing Canons, and in particular, the then existing Canon 33. The American Bar Association has recommended no amendments to the Canons by reason of the increased popularity of the professional association as a vehicle for the practice of law. To the contrary, following the adoption of Chapter 621, Florida Statutes, in 1961, The Florida Bar petitioned the Supreme Court for express recognition in the Integration Rule and in the Canons of the propriety of the practice of law through the means of a professional association or professional service corporation. This sanction was given with appropriate cautionary language, In re: The Florida Bar, 133 So.2d 554 (Fla. 1961). In a comprehensive opinion by Justice Thornal, the Court discussed at considerable length the basis for the evolution of this means of practicing law, citing in particular the apparent tax advantages, or more properly stated, the tax equality, to be granted the self-employed lawyer (whether as a sole practitioner or as a partner) as contrasted with a corporate employee, in effect counseling that so long as the traditional professional values, and in particular, the personal nature of the attorney-client relationship, were safeguarded, such practice will be proper upon the adoption of the appropriate amendments therein set forth.
In the light of this express approval by the Supreme Court of Florida, and the sanction of the corporate means of operation by the legislature of Florida, it is manifest that it is entirely proper and permissible for Florida lawyers to practice law in accordance with the amended Canon 33 and the newly adopted Article XV of the Integration Rule. In our judgment, a professional association, including appropriate language in its corporate name, as required by Section 621.12, Florida Statutes, sufficiently notifies its clients of its nature by including the same within its letterhead.
In the event that the corporation chooses to operate under a fictitious name, as is permissible under Section 621.12, a possibility clearly recognized and sanctioned by amended Canon 33 and paragraph 4(d), Article XV of the Integration Rule, it is, in our judgment, only necessary that at the outset of the retainer the lawyer generally notify the client that in fact the ostensible partnership is a professional association. There would appear to be no necessity to otherwise engage in a discussion of the legal consequences unless, of course, inquiry is made by the client, in which instance full disclosure of the legal nature of the association should be made, just as should be made on the rare occasion that particular clients might inquire as to the existence or amount of professional liability insurance. This is not to say that we do not share to some extent the concern of the American Bar Association Committee that the public not be misled, but it seems to us that its fear is far more theoretical than practical, and that few, if any, clients come to lawyers relying upon the totally unlimited liability of all partners; that the few sophisticated clients who might appreciate the difference would be sophisticated beyond this point to the extent of placing considerably more reliance upon professional liability insurance now generally carried by most lawyers, and that in the light of the express sanction of the entire method of operation given by our Supreme Court, we should render no opinion posing such onerous requirements as to make it impossible for lawyers to practice in this manner should they so desire.
We are secondly asked whether it is possible for members or stockholders in the professional service corporation to make contributions to retirement or pension plans for their employees which find a basis in the profits of the corporation. In its Opinion 303, the American Bar Association Committee observed:
However, if the salary of a non-lawyer employee is based on the percentage of the net profits, a division of fees for legal services would be involved and Canon 34 would prohibit it. Thus, if a professional association or professional corporation is organized to practice law and it is approved as a corporation for federal income tax purposes, it would not be ethically proper for it to have a profit-sharing plan if non-lawyers were included as the beneficiaries of the plan.
It seems to us that a subsequent opinion of the American Bar Association Committee, Opinion 311 (rendered April 8, 1964), may be inconsistent with the quoted portion of Opinion 303. There the American Bar Association Committee held that a retirement plan by attorneys for themselves and their laymen employees under federal income tax provisions governing self-employed persons was not unethical even though the benefits were measured by the employee's salary and were payable only if profits existed from which to pay them, commenting that "profits are not a measure of the additional compensation but only a contingent limitation. . . ." In any event, and without at all endeavoring to launch into a technical discussion of the niceties of tax law, it seems to us that so long as a law firm adopts a conventional deferred compensation or retirement plan for lay and legal personnel, funded by contributions from the firm profits, and if such plan is a reasonable and ordinary method of giving fringe benefit additional compensation to bona fide employees, it is irrelevant whether or not the firm is organized as a professional association, and that the basic concern of Canon 34, to preclude fee splitting, is not offended. As a practical matter, it is our understanding that lay employees would ordinarily find the contribution of the firm for their benefit would be based upon their salary even though presumably arising from firm profits just as the original salary did, and thus, the reasoning set forth in Opinion 311 would apply. However, even if the particular plan utilized caused contributions to be made on a basis other than salary, we would be unable to share the concern expressed in Opinion 303, if the plan in fact was a bona fide retirement or deferred compensation plan as contrasted with a subterfuge to avoid Canon 34.