Can a law firm let its developer client fill in and mail the closing-date notice on the firm's letterhead?

Plain-English summary

A Florida law firm represented a condominium developer whose purchase-and-sale contracts let the developer schedule the closing at the firm's offices. The firm had drafted, under its letterhead, a form of notice advising of the time, date, and place of closing; the developer would insert the date and time in blanks and mail it to the purchaser. The firm asked whether this procedure violated Canon 3 of the Code (old Canon 47).

The committee was of the opinion that the client's completion and mailing of the notice did not involve the unauthorized practice of law, and that there was no literal violation of the ethical considerations or disciplinary rules under Canon 3. A majority, however, was concerned with the appearance of the procedure, finding it unseemly for a law firm to delegate to anyone outside its office the ability to make appointments for the lawyers, particularly where the notice would appear to have been sent from the firm although it had in fact originated with the developer. Using a form of notice was proper, but so there could be no misinterpretation, the majority concluded the developer should, on completing the form, contact the firm, which in turn would make the appointment with the purchaser.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied Canon 3 of the former Code (old Canon 47); the subject matter is now addressed by Rule 4-5.5 (unauthorized practice) and Rule 4-5.3 (responsibilities regarding nonlawyer assistants). Treat this page as historical context, not current guidance.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: Did the client's mailing of the firm's notice form amount to unauthorized practice of law?

A: Under this opinion, no. The committee found no unauthorized practice of law and no literal violation of Canon 3 in the developer completing and mailing the firm's form.

Q: Why did a majority still object to the procedure?

A: The majority was concerned with the appearance, finding it unseemly to let someone outside the firm make appointments for the lawyers when the notice would appear to come from the firm though it originated with the developer.

Q: What did the majority recommend instead?

A: The opinion says the developer should choose the date, then contact the firm on completing the form, and the firm should make the appointment with the purchaser, so there could be no misinterpretation about the source of the notice.

Background and rules framework

The opinion addressed delegation of a client communication and whether it crossed into unauthorized practice, under Canon 3 of the former Code. In current Florida practice, the unauthorized practice of law is governed by Rule 4-5.5, and a lawyer's responsibility for the conduct of nonlawyers is governed by Rule 4-5.3. The Model Rule analogues are Rules 5.5 and 5.3.

Citations and references

Rules of Professional Conduct:

• Canon 3, CPR (old Canon 47) [subject matter now in Rules 4-5.5 and 4-5.3]

See also

• FL Bar Ethics Op. 72-21: Legal Services for a Mutual Fund
• FL Bar Ethics Op. 12-2: Nonlawyer E-Portal Filing
• FL Bar Ethics Op. 00-4: Legal Services Over the Internet

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-23/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-23-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-23
June 21, 1971
Advisory ethics opinions are not binding.
A law firm may allow its client to choose the date and time for closing a transaction. However, actual notice to the other party of the date and time should come from the law firm itself and not from the client.
CPR: Canon 3
Chairman Massey stated the opinion of the committee:
A Florida law firm represents a condominium developer. Contracts of purchase and sale provide for the developer scheduling the date of closing at the offices of the law firm. The attorneys have drafted under their letterhead a form of notice advising of time, date and place of closing, which is given to the condominium developer, who inserts the date and time in blanks and places it in the mail to the purchaser. The Committee is asked whether this procedure violates Canon 3, CPR (old Canon 47).
The Committee is of the opinion that the completion and mailing of the notice as aforesaid does not involve the unauthorized practice of law. There is no literal violation of the ethical considerations or disciplinary rules under Canon 3, CPR.
A majority of the Committee, however, are concerned with the appearance of the proposed procedure, as it is unseemly for a law firm to delegate to anyone outside its office the ability to make appointments for the lawyers, particularly when the letter notice of appointment would appear to have been sent from the law firm, although in fact it had originated with the developer. To use a form of notice appointment is proper, but the majority determine that so there can be no misinterpretation of the action or the appointment date and time, the developer should upon completion contact the law firm, which in turn could make the appointment with the purchaser.