Legal ethics

Breaking? BPR Issues Two Formal Ethics Opinions

With little to no fanfare (and in fact I only know they came out because I happened to go look on the website out of curiosity), the BPR has now issued the two opinions it had put out in draft form for public comment earlier this year. Both of these opinions were adopted on August 7, 2023.

2023-F-170 addresses acceptance of credit card payments as well as use of platforms such as Venmo. You might recall my writing with some criticism of the original draft opinion here.

The opinion, as published, still treats these two topics together, but does seem to have improved its analysis of certain issues. Those improvements include, it appears, not upsetting perfectly fine apple carts with respect to the ability of lawyers to accept payment of advanced fees by credit card as long as there are arrangements in place so that chargebacks or other fees are set up to come out of the lawyer’s operating account rather than the trust account.

I say, “it appears,” because the opinion requires the words “or through a substantially similar arrangement” to do a good bit of heavy lifting for a lawyer to avoid having to establish a second trust account that would exist just for deposit of advance fees. Unfortunately, the opinion continues to insist on blurring lines about what the authorities it relies upon did or did not address. Specifically, the opinion continues to reference a Florida ethics opinion as justification for concern over receiving trust deposits by credit card when that Florida opinion only addressed platforms such as Venmo and PayPal.

2023-F-169 addresses lawyers departing a law firm. The issued version appears to be identical (or essentially identical) to the draft and now provides good, formal guidance about how lawyers, regardless of whether they are leaving or staying, have to conduct themselves in such situations.

The opinion now confirms certain core concepts in Tennessee as to departing lawyers and what the rules of the road are, including:

  • That a joint notice to the client is preferred and that the departing lawyer and the firm should “attempt to agree” on a joint communication to the clients “with whom the departing lawyer has had significant contact.”
  • That firms ought to develop policies in advance so that lawyers can know what measures the firm will expect to implement address such situations, including issues of what kind of notice period prior to departure a firm will expect of its lawyers.
  • While firms can impose notice period requirements, they cannot then kneecap the departing lawyer’s ability to continue to represent clients during that time period by cutting them off from access to files or access to technology.

In other words, this opinion attempts to establish rules of the road that have as their primary purpose ensuring that clients both have full choice of counsel and are not harmed or burdened by lawyer against lawyer disputes.

Nevertheless, situations where lawyers depart firms for other private practice arrangements will likely always remain plagued by economic pressures and cutthroat instincts. Lawyers or firms that want to push the envelope may find some solace in certain parts of the opinion whether that be arguing over what “significant contact” means or playing coy about what constitutes attempting to agree, but this opinion offers much needed guidance.

As a lawyer who represents lawyers making moves as well as firms dealing with departing lawyers, the existence of this opinion will be very helpful in counseling lawyers.