Wean says the agreement is unethical because it interferes with clients' rights to choose their own attorneys and because it violates a prohibition on fee-splitting. The Florida Bar agrees.
But Becker & Poliakoff managing partner Alan Becker says the Bar is wrong and out of step with modern law practice in its adherence to a 1993 advisory opinion that prevents him from suing Wean for breach of contract. The firm is not the only one in the state that attempts to hold departing lawyers to some kind of accounting when they take clients with them.
Firm-hopping and portable clients are an increasing source of friction in legal culture: Departing lawyers, for example, commonly share in fees earned for matters that carry over from one firm to the next, particularly contingency fee cases, where the lawyers don't get paid until a case is won. Then there are the ethics rules that prohibit lawyers from luring clients into following them to a new firm.
But critics say Becker & Poliakoff's employment agreement is so extreme that no lawyer could afford to continue representing clients who wished to follow the lawyer to a new firm. And that, Wean believes, is the whole idea. "It's a substantial disincentive," he says. "What they're really trying to do is stifle competition in the state of Florida."
Becker says it's only fair for the firm to expect to recoup some of its losses. "Our view is ... if we trained you, helped support you and market you, we have an investment. Our agreement seeks some reimbursement of that investment." Becker finds it particularly unfair that law firms are the only Florida businesses that can't enforce some employment agreements. Florida law is otherwise quite liberal on the question of employment, or so-called "non-compete," agreements. Even doctors have been held to agreements that prevent them from continuing to see patients they treated while part of a previous medical practice.
But the Bar's position -- identical to the position of the American Bar Association -- is that employment agreements undermine the professionalism of the practice of law. A 1961 ABA opinion notes that "clients are not merchandise (and) lawyers are not tradesmen. They have nothing to sell but personal service. Any attempt, therefore, to barter in clients would appear to be inconsistent with the best concepts of our professional status."
Wean says he doubts the Becker & Poliakoff contract would hold up even outside the practice of law. Its provisions are too broad, he says. Non-compete agreements typically limit themselves to a small geographic area. Becker & Poliakoff's agreement would require attorneys to submit half of their fees from any former Becker & Poliakoff client, anywhere in the state, he says.
Becker acknowledges that his effort is a long shot. California is the only state that does not follow the ABA's position. And in November, the Florida Supreme Court dismissed his petition to overturn the Bar. If he can't convince the Bar to reconsider, Becker says he'll pursue a federal lawsuit based on the constitution's guarantee of equal protection under the laws. "I feel I have a mission to direct the Bar and our profession into the current century," he says.
Ethics: On Notice
The debate between lawyers and insurance companies over whether clients are ethically represented under a system that requires their lawyers to adhere to insurers' guidelines ["Cost Control vs. Ethics," January 2000] moves to the Florida Supreme Court this month with a proposal to require giving clients a written statement of their rights.
The proposed statement puts clients on notice that their lawyer will be taking direction from the insurance company and may not be free to pursue every kind of legal option available, but also cannot act contrary to their interests. The statement also advises clients to consider hiring another lawyer to monitor the case if there is a chance of a judgment that exceeds the limits of their insurance policy.
The statement, drafted by a Florida Bar committee, went through several heavily debated versions before winning the approval of the American Insurance Association and the Florida Insurance Council, which opposed the idea at first.
Insurance company lawyers originally objected that the statement would cause clients to think they weren't getting a sound defense. Not surprisingly, the version that won the industry's approval does not go far enough to satisfy everyone, according to committee chair and Miami trial lawyer David Bianchi. But, he says, "while it may not be as strong as some people would like, it's much, much better than what we have now, which is nothing."
Like all proposed changes to the rules regulating Florida Bar members, the proposal requires the approval of the Florida Supreme Court.