Can two lawyers employed by one professional association form a second professional association that contracts to do legal work only for the first?

Plain-English summary

A husband and wife who were practicing attorneys employed by one professional association wished to form a second professional association in which they would be the only members. The second association would then contract to do legal work only for the first. The inquiry asked whether there were any ethical objections to forming the second association.

A majority of the committee concluded that, provided the lawyer-client relationship remained exactly the same as if the second professional association did not exist, forming the second association would not be unethical. Committeeman Massey dissented, reasoning that prior Opinion 71-58 (since withdrawn) should apply and that one professional association is enough. The dissent's view was that the only valid reason for a professional association is to obtain tax advantages not otherwise available to the profession, and that its use should be ethically limited to preclude two-tier or interlocking lawyer associations because of the implications for the relationship between lawyers and clients and the professional responsibilities an attorney owes.

Currency note

This opinion was issued in 1973, 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. Treat this page as historical context, not current guidance. Verify against current Rule 4-5.4 before relying on any specific requirement mentioned here.

Common questions

Q: Could the two lawyers form a second professional association serving only the first?

A: Under this opinion, a majority said yes, so long as the attorney-client relationships stayed exactly as they would be without the second association.

Q: What was the condition the committee attached?

A: The committee conditioned its conclusion on the lawyer-client relationship remaining unchanged by the existence of the second association.

Q: Was there a dissent?

A: Yes. Committeeman Massey would have applied Opinion 71-58 to find that one professional association is enough and that two-tier or interlocking associations should be precluded.

Background and rules framework

The opinion applied the former Code of Professional Responsibility to the structure of a lawyer's practice through professional associations. In current Florida practice the integrity of the lawyer-client relationship against business structures corresponds to Rule 4-5.4 (professional independence of a lawyer); the Model Rule analogue is 5.4.

Citations and references

Other opinions cited:

• Florida Opinion 71-58 (since withdrawn): relied on by the dissent for the view that one professional association is enough

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-73-12/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-73-12-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 73-12
September 17, 1973
Advisory ethics opinions are not binding.
It would not be unethical for two attorneys employed by one professional association to form a second professional association of their own and then contract to do legal work only for the first professional association, provided that attorney-client relationships are unaffected.
Opinion: 71-58
Vice Chairman Daniels stated the opinion of the committee:
A husband and wife who are practicing attorneys employed by one professional association desire to form a second professional association in which they would be the only members. The second professional association would then contract to do legal work only for the first professional association. Inquiry is made as to whether there are any ethical objections to the formation of the second professional association.
Provided that the lawyer-client relationship remains exactly the same as if the second professional association did not exist, a majority of the Committee is of the opinion that the formation of the second professional association would not be unethical.
Committeeman Massey dissents on the basis that Florida Opinion 71-58 [since withdrawn] should be applicable to the instant inquiry with the result of a finding that one professional association is enough. The only valid reason for the professional association is to obtain tax advantages not otherwise available to the legal profession. Its use should be ethically limited so as to preclude two-tier legal organizations or interlocking professional associations of lawyers since the impact has implications on the relationships between lawyers and their clients and the obligations and professional responsibilities owed by an attorney.