Rule 4-5.7 — Responsibilities Regarding Nonlegal Services

Comment (verbatim from The Florida Bar)

For many years, lawyers have provided to their clients
nonlegal services that are ancillary to the practice of law. A broad
range of economic and other interests of clients may be served by
lawyers participating in the delivery of these services. In recent
years, however, there has been significant debate about the role the
rules of professional conduct should play in regulating the degree
and manner in which a lawyer participates in the delivery of
nonlegal services. The ABA, for example, adopted, repealed, and
then adopted a different version of ABA Model Rule 5.7. In the
course of this debate, several ABA sections offered competing
versions of ABA Model Rule 5.7.
One approach to the issue of nonlegal services is to try to
substantively limit the type of nonlegal services a lawyer may
provide to a recipient or the manner in which the services are
provided. A competing approach does not try to substantively limit
the lawyer’s provision of nonlegal services, but instead attempts to
clarify the conduct to which the Rules Regulating The Florida Bar

apply and to avoid misunderstanding on the part of the recipient of
the nonlegal services. This rule adopts the latter approach.
The potential for misunderstanding
Whenever a lawyer directly provides nonlegal services, there
exists the potential for ethical problems. Principal among these is
the possibility that the person for whom the nonlegal services are
performed may fail to understand that the services may not carry
with them the protection normally afforded by the client-lawyer
relationship. The recipient of the nonlegal services may expect, for
example, that the protection of client confidences, prohibitions
against representation of persons with conflicting interests, and
obligations of a lawyer to maintain professional independence apply
to the provision of nonlegal services when that may not be the case.
The risk of confusion is acute especially when the lawyer renders
both types of services with respect to the same matter.
Providing nonlegal services that are not distinct from legal
services
Under some circumstances, the legal and nonlegal services
may be so closely entwined that they cannot be distinguished from
each other. In this situation, confusion by the recipient as to when
the protection of the client-lawyer relationship applies is likely to be
unavoidable. Therefore, this rule requires that the lawyer providing
the nonlegal services adhere to all of the requirements of the Rules
Regulating The Florida Bar.
In such a case, a lawyer will be responsible for assuring that
both the lawyer’s conduct and, to the extent required elsewhere in
these Rules Regulating The Florida Bar, that of nonlawyer
employees comply in all respects with the Rules Regulating The
Florida Bar. When a lawyer is obliged to accord the recipients of
such nonlegal services the protection of those rules that apply to
the client-lawyer relationship, the lawyer must take special care to
heed the proscriptions of the Rules Regulating The Florida Bar
addressing conflict of interest and to scrupulously adhere to the
requirements of the rule relating to disclosure of confidential
information. The promotion of the nonlegal services must also in all

respects comply with the Rules Regulating The Florida Bar dealing
with advertising and solicitation.
Subdivision (a) of this rule applies to the provision of nonlegal
services by a lawyer even when the lawyer does not personally
provide any legal services to the person for whom the nonlegal
services are performed if the person is also receiving legal services
from another lawyer that are not distinct from the nonlegal services.
Avoiding misunderstanding when a lawyer directly provides
nonlegal services that are distinct from legal services
Even when the lawyer believes that his or her provision of
nonlegal services is distinct from any legal services provided to the
recipient, there is still a risk that the recipient of the nonlegal
services will misunderstand the implications of receiving nonlegal
services from a lawyer; the recipient might believe that the recipient
is receiving the protection of a client-lawyer relationship. Where
there is such a risk of misunderstanding, this rule requires that the
lawyer providing the nonlegal services adhere to all the Rules
Regulating The Florida Bar, unless exempted by other provisions of
this rule.
Avoiding misunderstanding when a lawyer is indirectly involved
in the provision of nonlegal services
Nonlegal services also may be provided through an entity with
which a lawyer is somehow affiliated, for example, as owner,
employee, controlling party, or agent. In this situation, there is still
a risk that the recipient of the nonlegal services might believe that
the recipient is receiving the protection of a client-lawyer
relationship. Where there is such a risk of misunderstanding, this
rule requires that the lawyer involved with the entity providing
nonlegal services adhere to all the Rules Regulating The Florida
Bar, unless exempted by another provision of this rule.
Avoiding the application of subdivisions (b) and (c)
Subdivisions (b) and (c) specify that the Rules Regulating The
Florida Bar apply to a lawyer who directly provides or is otherwise
involved in the provision of nonlegal services if there is a risk that

the recipient might believe that the recipient is receiving the
protection of a client-lawyer relationship. Neither the Rules
Regulating The Florida Bar nor subdivisions (b) or (c) will apply,
however, if pursuant to subdivision (d), the lawyer takes reasonable
efforts to avoid any misunderstanding by the recipient. In this
respect, this rule is analogous to the rule regarding respect for
rights of third persons.
In taking the reasonable measures referred to in subdivision
(d), the lawyer must communicate to the person receiving the
nonlegal services that the relationship will not be a client-lawyer
relationship. The communication should be made before entering
into an agreement for the provision of nonlegal services, in a
manner sufficient to assure that the person understands the
significance of the communication, and preferably should be in
writing.
The burden is upon the lawyer to show that the lawyer has
taken reasonable measures under the circumstances to
communicate the desired understanding. For instance, a
sophisticated user of nonlegal services, such as a publicly held
corporation, may require a lesser explanation than someone
unaccustomed to making distinctions between legal services and
nonlegal services, such as an individual seeking tax advice from a
lawyer-accountant or investigative services in connection with a
lawsuit.
The relationship between this rule and other Rules Regulating
The Florida Bar
Even before this rule was adopted, a lawyer involved in the
provision of nonlegal services was subject to those Rules Regulating
The Florida Bar that apply generally. For example, another
provision of the Rules Regulating The Florida Bar makes a lawyer
responsible for fraud committed with respect to the provision of
nonlegal services. Such a lawyer must also comply with the rule
regulating business transactions with a client. Nothing in this rule
(Responsibilities Regarding Nonlegal Services) is intended to
suspend the effect of any otherwise applicable Rules Regulating The
Florida Bar, such as the rules on personal conflicts of interest, on

business transactions with clients, and engaging in conduct
involving dishonesty, fraud, deceit, or misrepresentation.
In addition to the Rules Regulating The Florida Bar, principles
of law external to the rules, for example, the law of principal and
agent, may govern the legal duties owed by a lawyer to those
receiving the nonlegal services.
Added effective April 25, 2002 (820 So.2d 210).
4-5.8 PROCEDURES FOR LAWYERS LEAVING LAW FIRMS AND
DISSOLUTION OF LAW FIRMS
(a) Contractual Relationship Between Law Firm and
Clients. The contract for legal services creates the legal
relationships between the client and law firm and between the client
and individual members of the law firm, including the ownership of
the files maintained by the lawyer or law firm. Nothing in these
rules creates or defines those relationships.
(b) Client’s Right to Counsel of Choice. Clients have the
right to expect that they may choose counsel when legal services are
required and, with few exceptions, nothing that lawyers and law
firms do affects the exercise of that right.
(c) Contact With Clients.
(1) Lawyers Leaving Law Firms. Absent a specific
agreement otherwise, a lawyer who is leaving a law firm may not
unilaterally contact those clients of the law firm for purposes of
notifying them about the anticipated departure or to solicit
representation of the clients unless the lawyer has approached an
authorized representative of the law firm and attempted to negotiate
a joint communication to the clients concerning the lawyer leaving
the law firm and bona fide negotiations have been unsuccessful.
(2) Dissolution of Law Firm. Absent a specific agreement
otherwise, a lawyer involved in the dissolution of a law firm may not
unilaterally contact clients of the law firm unless, after bona fide
negotiations, authorized members of the law firm have been unable
to agree on a method to provide notice to clients.

(d) Form for Contact With Clients.
(1) Lawyers Leaving Law Firms. When a joint response
has not been successfully negotiated, unilateral contact by
individual members or the law firm must give notice to clients that
the lawyer is leaving the law firm and provide options to the clients
to choose to remain a client of the law firm, to choose
representation by the departing lawyer, or to choose representation
by other lawyers or law firms.
(2) Dissolution of Law Firms. When a law firm is being
dissolved and no procedure for contacting clients has been agreed
to, unilateral contact by members of the law firm must give notice
to clients that the firm is being dissolved and provide options to the
clients to choose representation by any member of the dissolving
law firm, or representation by other lawyers or law firms.
(3) Liability for Fees and Costs. In all instances, notice to
the client required under this rule must provide information
concerning potential liability for fees for legal services previously
rendered, costs expended, and how any deposits for fees or costs
will be handled. In addition, if appropriate, notice must be given
that reasonable charges may be imposed to provide a copy of any
file to a successor lawyer.
(e) Nonresponsive Clients.
(1) Lawyers Leaving Law Firms. In the event a client
fails to advise the lawyers and law firm of the client’s intention in
regard to who is to provide future legal services when a lawyer is
leaving the firm, the client remains a client of the firm until the
client advises otherwise.
(2) Dissolution of Law Firms. In the event a client fails to
advise the lawyers of the client’s intention in regard to who is to
provide future legal services when a law firm is dissolving, the client
remains a client of the lawyer who primarily provided the prior legal
services on behalf of the firm until the client advises otherwise.

Comment
The current rule of law regarding ownership of client files is
discussed in Donahue v. Vaughn, 721 So. 2d 356 (Fla. 5th DCA
1998), Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA
1984), and Woodson v. Durocher, 588 So. 2d 644 (Fla. 5th DCA
1991). A lawyer leaving a law firm should consult with the law firm
regarding disposition of client files. Ownership of client files may be
the subject of contract law and of the employment, partnership, or
shareholder agreement between the lawyer and the law firm.
While clients have the right to choose counsel, that choice may
implicate obligations such as a requirement to pay for legal services
previously rendered and costs expended in connection with the
representation as well as a reasonable fee for copying the client’s
file.
Whether individual members have any individual legal
obligations to a client is a matter of contract law, tort law, or court
rules that is outside the scope of rules governing lawyer conduct.
Generally, individual lawyers have these obligations only if provided
for in the contract for representation. Nothing in this rule or in the
contract for representation may alter the ethical obligations that
individual lawyers have to clients as provided elsewhere in these
rules.
In most instances a lawyer leaving a law firm and the law firm
should engage in bona fide, good faith negotiations and craft a joint
communication providing adequate information to the client so that
the client may make a fully informed decision concerning future
representation. In those instances in which bona fide negotiations
are unsuccessful, unilateral communication may be made by the
departing lawyer or the law firm. In those circumstances, great
care should be taken to meet the obligation of adequate
communication and for this reason the specific requirements of
subdivisions (d)(1) and (3) are provided.
Lawyers and firms should engage in bona fide, good faith
negotiations within a reasonable period of time following their
knowledge of either the anticipated change in firm composition or, if

the anticipated change is unknown, within a reasonable period of
time after the change in firm composition. The actual notification
to clients should also occur within a reasonable period of time.
What is reasonable will depend on the circumstances, including the
nature of the matters in which the lawyer represented the clients
and whether the affected clients have deadlines that need to be met
within a short period of time.
For purposes of this rule, clients who should be notified of the
change in firm composition include current clients for whom the
departing lawyer has provided significant legal services with direct
client contact. Clients need not be notified of the departure of a
lawyer with whom the client has had no direct contact. Clients
whose files are closed need not be notified unless the former client
contacts the firm, at which point the firm should notify the former
client of the departure of any lawyer who performed significant legal
services for that former client and had direct contact with that
former client.
Although contact by telephone is not prohibited under this
rule, proof of compliance with the requirements of this rule may be
difficult unless the notification is in writing.
In order to comply with the requirements of this rule, both
departing lawyers and the law firm should be given access to the
names and contact information of all clients for whom the departing
lawyer has provided significant legal services and with whom the
lawyer has had direct contact.
If neither the departing lawyer nor the law firm intends to
continue representation of the affected clients, they may either
agree on a joint letter providing that information to those clients, or
may separately notify the affected clients after bona fide, good faith
negotiations have failed. Any obligation to give the client
reasonable notice, protect the client’s interests on withdrawal, and
seek permission of a court to withdraw may apply to both the
departing lawyer and lawyers remaining in the firm.
Most law firms have some written instrument creating the law
firm and specifying procedures to be employed upon dissolution of

the firm. However, when such an instrument does not exist or does
not adequately provide for procedures in the event of dissolution,
the provisions of this rule are provided so that dissolution of the law
firm does not disproportionately affect client rights.
As in instances of a lawyer departing a law firm, lawyers
involved in the dissolution of law firms have a continuing obligation
to provide adequate information to a client so that the client may
make informed decisions concerning future representation.
The Florida Bar has sample forms for notice to clients and
sample partnership and other contracts that are available to
members. The forms may be accessed on the bar’s website,
www.floridabar.org, or by calling The Florida Bar headquarters in
Tallahassee.
Lawyers involved in either a change in law firm composition or
law firm dissolution may have duties to notify the court if the
representation is in litigation. If the remaining law firm will
continue the representation of the client, no notification of the
change in firm composition to the court may be required, but such
a notification may be advisable. If the departing lawyer will take
over representation of the client, a motion for substitution of
counsel or a motion by the firm to withdraw from the representation
may be appropriate. If the departing lawyer and the law firm have
made the appropriate request for the client to select either the
departing lawyer or the law firm to continue the representation, but
the client has not yet responded, the law firm should consider
notifying the court of the change in firm composition, although
under ordinary circumstances, absent an agreement to the
contrary, the firm will continue the representation in the interim. If
the departing lawyer and the law firm have agreed regarding who
will continue handling the client’s matters then, absent
disagreement by the client, the agreement normally will determine
whether the departing lawyer or the law firm will continue the
representation.
Adopted effective January 1, 2006 (916 So.2d 655); amended November 9,
2017, effective February 1, 2018 (234 So. 3d 577); amended January 4,
2019, effective March 5, 2019 (267 So.3d 891); amended March 3, 2022,
effective May 2, 2022 (SC20-1467).

4-6. PUBLIC SERVICE