Can a lawyer take on clients who fired their prior attorney despite a written representation agreement?

Plain-English summary

A Florida lawyer was asked to represent certain individuals and a corporation that had already entered a written representation agreement with another attorney, and who no longer wished to be represented by that initial attorney. The lawyer asked what ethical considerations applied.

Assuming the inquiring attorney had not encroached on the initial attorney's representation, the committee said the question was governed by Florida Opinion 66-44, which held that it is for the client to decide who shall represent him. The committee noted it could not advise on the clients' obligations to the initial attorney under the first agreement, because that is a question of law. It stated that the superseding attorney would not be responsible for fees due the superseded attorney, but that the superseded attorney is entitled to notice so he may protect his right or lien, citing Drinker at page 200, and that the prospective clients should be advised of their potential fee exposure to the initial attorney.

Currency note

This opinion was issued in 1970, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It relied on Florida Opinion 66-44, which has since been withdrawn, and applied the former Code of Professional Responsibility. A client's right to discharge counsel and a discharged lawyer's protection of fees are now addressed by Rule 4-1.16. Treat this page as historical context, not current guidance.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: Can a client switch lawyers even with a signed representation contract?

A: Under this opinion, yes, as an ethics matter. The committee said it is for the client to decide who shall represent him; whether the client owes the prior lawyer under the contract is a question of law it would not decide.

Q: Does the new lawyer owe the prior lawyer's fees?

A: No. The committee said the superseding attorney is not responsible for fees due the superseded attorney, but the prior attorney is entitled to notice to protect his right or lien.

Background and rules framework

The opinion addressed a client's discharge of counsel and the incoming lawyer's responsibilities, subjects now addressed by Rule 4-1.16 of the Rules Regulating The Florida Bar on declining or terminating representation. The Model Rule analogue is Rule 1.16. It rested on prior Florida Opinion 66-44.

Citations and references

Rules of Professional Conduct:

• Code of Professional Responsibility [discharge of counsel now addressed by Rule 4-1.16]

Other authorities:

• Drinker, Legal Ethics, p. 200 [cited for the superseded attorney's right to notice]

Other opinions cited:

• Florida Opinion 66-44 [since withdrawn]: the client decides who represents him

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-18/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-18-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-18
November 25, 1970
Advisory ethics opinions are not binding.
It is not unethical to represent a client who has terminated his relationship with a prior attorney, written employment contract notwithstanding.
Opinion: 66-44
Chairman Massey stated the opinion of the committee:
A member of The Florida Bar has been requested to represent certain individuals and a corporation, but finds the proposed clients had theretofore entered into a written representation agreement with another attorney. He inquires what ethical considerations exist in view of the proposed clients not desiring to be represented by the initial attorney.
Assuming the inquiring attorney has not by effort encroached upon the representation by the initial attorney, this inquiry is governed by Florida Opinion 66-44 [withdrawn], wherein it was held it is for the client to decide who shall represent him.
The Committee would point out it cannot undertake to advise of the clients' obligation to the initial attorney under the first representation agreement as this would be a question of law. The superseding attorney would not be responsible for fees due the superseded attorney, but the superseded attorney is entitled to notice so that he may protect his right or lien as the case may be. See Drinker, page 200. Certainly, the prospective clients should be advised of the potential fee exposure to the initial attorney as well.