Ethically Speaking

Withdrawal because of client bar complaint may not support lien for fees

by henry lee paul, esq.

Contrary to commonly expressed opinions, a client’s bar complaint does not necessarily require withdrawal as counsel representing the client in litigation. Further, if withdrawal in a contingent fee case is based on the filing of a client bar complaint, it does not necessarily equate to entitlement to fees pursuant to quantum meruit. The Mineo Salcedo Law Firm, P.A., v. Cesard, 4D20-1761 (2022) case recently addressed this issue. The Salcedo Law Firm (Salcedo) represented Cesard in a contingent fee case. Salcedo advised Cesard to accept a settlement offer. Cesard refused and filed a bar complaint against Salcedo concerning the settlement negotiations. Salcedo believed the bar complaint created a conflict of interest with their client that required withdrawal as counsel. Salcedo confirmed this belief with The Florida Bar’s Ethics Hotline, which indicated the bar complaint “created a conflict of interest sufficient to ethically require the firm’s withdrawal from the case.”

Based on this confirmation by The Florida Bar, Salcedo sought, and was granted, leave to withdraw less than two weeks before the scheduled trial. It appears Salcedo felt comfortable it would be able to lien the proceeds to recover the quantum meruit value for services rendered. However, this presumption proved to be a far more complicated matter than anticipated. The trial court awarded only a minimal amount of fees. Salcedo appealed and the 4th DCA stated “The question presented to this court is whether the trial court erred in failing to award reasonable fees pursuant to the charging lien. Because various factual questions remain unanswered, we reverse and remand for further proceedings.” Salcedo argued, “…the specter of Bar sanctions stemming from the complaint loomed over the relationship, involuntarily placing the firm in a position where it could no longer render appropriate legal advice.” The 4th DCA disagreed and indicated the simple fact of a bar complaint did not necessarily equate to entitlement to fees as if they were discharged without cause. The Court indicated the analysis required should be much more in depth “…the trial court had to determine whether it was the Cesards’ or the firm’s conduct that made continued representation either legally impossible or would have caused the attorney to violate an ethical rule of The Florida Bar….To do so, the trial court had to hear evidence about the bar complaint’s merits.” The trial court was required to determine “who bore responsibility for creating the attorney client rift.”

This placed Salcedo in a dilemma which was inextricably intertwined with the entitlement of fees and the threat of prosecution of The Florida Bar. This type of dilemma is why The Florida Bar has, in the past, in accordance with stated policy, deferred investigation and prosecution in cases with related civil litigation. Unfortunately, this past practice is no longer being strictly enforced. The Florida Bar is now routinely pursuing prosecution of cases with active companion litigation. The dilemma of prosecution by The Florida Bar, with simultaneous litigation, presents a Hobson’s Choice for members of the Bar.

Henry Lee Paul, Esq. is a former Bar Counsel for the Florida Bar who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters. He also represents applicants in all matters before The Florida Board of Bar Examiners.