When most of the lawyers leave a law firm, how should the firm and the departing lawyers decide who keeps which client files?

Plain-English summary

A lawyer asked about procedures to follow when the membership of a professional association changed. A six-member firm (with two associates and an affiliated counsel) saw four members withdraw to form their own firm; those four held 52 percent of the association's stock, and the remaining members held 48 percent. The withdrawing and remaining members had agreed on a set of procedures: the withdrawing members took certain open and closed client files (signing receipts), other files would stay with the firm until a client signed a letter directing transfer, original wills held in the firm's safe deposit boxes at clients' direction were taken by the withdrawing members on receipts, mail directed to a withdrawing member would be opened by the firm unless marked personal, and telephone callers asking for a withdrawn member would be told he had withdrawn and offered his number and a remaining member. The firm asked the committee to assess the propriety of each procedure.

The committee noted some conceptual difficulty in treating this as a routine withdrawal, because the practice was carried on by a corporation and most members were leaving, and it assumed the corporation would continue at the same location with an appropriate name change. It concluded that the procedures, particularly those for taking files and wills, should be supplemented to give existing clients an opportunity to direct disposition of their files or other legal papers. Citing EC 4-6, the committee said the client's instructions and wishes should be the dominant consideration in determining the method of disposition, and that this was best accomplished by written notice to clients advising of the change and requesting their wishes. Subject to those comments, the committee found nothing objectionable in the proposal.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced; Florida later adopted a specific rule on the obligations of lawyers leaving a firm. Treat this page as historical context, not current guidance. Verify against current Rules 4-5.8 and 4-1.16 before relying on any specific requirement mentioned here.

Common questions

Q: Who decides which lawyer keeps a client's file when a firm breaks up?

A: Under this opinion, the client. The committee said the client's instructions and wishes should be the dominant consideration in disposing of files when a firm's membership changes.

Q: What step did the committee say the lawyers had to add to their plan?

A: The opinion said the procedures should be supplemented to give clients an opportunity to direct disposition of their files, ideally through written notice advising of the change and requesting the clients' wishes.

Q: Did the committee object to the rest of the breakup arrangement?

A: No. Subject to giving clients that opportunity to direct file disposition, the committee found nothing objectionable in the proposed procedures.

Background and rules framework

The opinion addressed how client files and papers should be handled when most members leave a professional association, and grounded the answer in the client's right to choose. In current Florida practice the obligations of lawyers leaving a firm are addressed in Rule 4-5.8, with the duties on terminating a representation in Rule 4-1.16 and the duty to keep clients informed in Rule 4-1.4; the Model Rule analogues here are Rules 1.16 and 1.4.

Citations and references

Rules of Professional Conduct:

• CPR EC 4-6 (preserving the client's confidences and property interests)

See also

• FL Bar Ethics Op. 04-2: Restrictions on a Lawyer's Right to Practice in Settlements
• FL Bar Ethics Op. 10-3: A Deceased Client's Confidential Information
• FL Bar Ethics Op. 72-40: Client Confidences and the Executor Bank

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-71-62/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-71-62-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 71-62
January 25, 1972
Advisory ethics opinions are not binding.
In disposing of clients' files the dominant consideration should be the instructions and wishes of the clients. Written inquiry should be sent requesting the clients' advice as to their wishes in disposing of their files.
CPR: EC 4-6
Chairman Clarkson stated the opinion of the committee:
A member of The Florida Bar seeks our advice concerning procedures to be followed upon change in the membership of a professional association. His letter of inquiry details the following factual background:
The firm was comprised of six members, two associates and an affiliated counsel. One of the members announced his withdrawal and acceptance of a position with another law firm. A second member thereupon indicated an intention to withdraw in order to practice as a sole practitioner. Several days later two more members announced their decision to withdraw from the firm intending to practice together. Several days after the latter decision was announced, the four members agreed to create their own law firm upon withdrawal.
The four withdrawing members owned 52 percent of the outstanding stock of the professional association under which organization the attorneys practiced law. The remaining members of the firm own the remaining 48 percent.
As a result of negotiations between the withdrawing and remaining partners, the following matters were agreed upon:

1. The withdrawing members took with them, after signing receipts therefor, a number of client files, both open files on which they were working and closed files that they had worked on.
2. A number of other files were to stay with the firm until a letter was produced signed by the client directing the firm to turn over the files to the withdrawing members.
3. Original wills for clients whose files were taken by the withdrawing members were also taken by them after signing receipts therefor. These wills have been held by the firm in safety deposit boxes owned by the firm, such custody at clients' direction.
4. It was agreed that mail directed to a withdrawing member at the firm address would be opened by the firm unless marked personal and that on matters relating to files taken by the withdrawing members, mail would be delivered to the withdrawing members.
5. The firm established a policy for answering telephone calls to the firm where the calling party requests to speak to one of the withdrawn members. Such policy was to advise the caller that the member had withdrawn from the firm, inquire of the caller as to whether he would like to speak to a remaining member. The telephone number of the withdrawing member was given upon request of the caller. Any remaining member who speaks with the caller would also furnish the number for the withdrawn partner.
   The opinion of your committee is requested as to the propriety of each of the foregoing procedures, the first four of which were agreed upon by remaining and withdrawing members, while the fifth was not.
   We perceive some conceptual difficulty in treating this inquiry as a routine withdrawal by one or more members of a law firm because (1) the law practice is carried on by a corporation and (2) it appears that most of the members are "withdrawing" rather than "remaining." We must assume that it is the corporation which will continue to practice at the same location with such name change as may be appropriate.
   The Committee has concluded that the procedures as outlined, particularly paragraphs 1 and 3, should be supplemented to afford existing clients an opportunity to direct disposition of their files or other legal papers. In determining the method of disposition, the instructions and wishes of the client should be a dominant consideration. EC 4-6, CPR. Ideally, this can best be accomplished by a written notice to these clients advising of the change in the membership of the professional association and requesting the clients' advice as to their wishes in disposing of their files.
   Subject to the foregoing comments, the Committee finds nothing objectionable in the proposal set forth above.