BOUNDS OF ADVOCACY Flashcards
What is the essence of Bounds of Advocacy [1.1] A LAWYER MUST STRIVE TO LOWER THE EMOTIONAL LEVEL OF FAMILY DISPUTES BY TREATING EVERYONE WITH RESPECT
At the end of the day - be a role model as a Family law. Family lawyers must demonstrate and promote civility and
professional behavior toward the parties, the lawyers, and the court.
[1.2] A LAWYER MUST STIPULATE
TO UNDISPUTED FACTS.
It’s our job to stipulate to undisputed facts so as to not waste time or money and reduce it to writing
[1.3] A LAWYER MUST NOT MISLEAD ANYONE.
We cannot make misleading statements or let our clients. We have a duty to correct ourselves.
Can we refuse to disclose information?
(a) the lawyer is not required
to provide;
(b) the lawyer has been instructed
to withhold; or
(c) may be detrimental to the client’s interests, the lawyer should refuse to provide the information, rather than mislead
other counsel
The wife’s lawyer is approached by the
husband’s lawyer, who asks, “Although
my client realizes there is no hope for
reconciliation, he is desperate to know
whether his wife is seeing another man. Is she?” Should lawyer disclose information if she knows?
1.3 BOUNDS OF ADVOACY - The wife’s lawyer knows that the wife has been having an affair. It would be proper for the lawyer to indicate an unwillingness or inability to answer that question, but it would be improper to suggest that the client has not had an affair.
FRPC 4-1.6: When Lawyer May Reveal Information. A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary:
(1) to serve the client’s interest unless it is information the client specifically requires not to be disclosed;
(2) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and client;
(3) to establish a defense to a criminal charge or civil claim against the lawyer based on conduct in which the client was involved;
(4) to respond to allegations in any proceeding concerning the
lawyer’s representation of the client;
(5) to comply with the Rules Regulating The Florida Bar; or
(6) to detect and resolve conflicts of interest between lawyers in different firms arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client
BUT SEE FRPC 4-4.1 provides that a lawyer shall not knowingly: “(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by another rule (such as FRPC 4-1.6(b)(1) requires a lawyer to disclose information to prevent a client from committing
a crime)
[1.4] A LAWYER MUST NOT MISREPRESENT THE AUTHORITY TO SETTLE.
If you don’t know, say so. Don’t mislead oc.
[1.5] A LAWYER SHOULD CORRECT INADVERTENT ERRORS MADE BYTHE OTHER SIDE THAT DO NOT REFLECT THE AGREEMENT.
Misunderstandings should be corrected and not relied on in
hopes that they will benefit the client BUT you don’t have to correct oc on tactical, evidentiary, or legal errors made by other counsel at trial
BUT SEE
FRPC 4-3.3(a)(3) duty to disclose to the court “legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.”
To compromise on a dispute over alimony, the parties agree that payments are to be deductible by the husband and taxable to the wife. While reviewing the agreement, the lawyer
for the wife realizes that the language will not create the tax consequences both sides had assumed because the
payments will be treated neither as deductible alimony to the husband nor taxable to the wife. Should this be disclosed?
You should BUT counsel’s mistake goes to a matter not discussed and agreed on, either explicitly or implicitly, the
obligation to the client precludes disclosure of the mistake without the client’s permission.
if alimony was agreed on with no discussion of tax consequences, the wife’s lawyer would not be obligated
to provide the language to make payments tax-deductible by the husband and includable by the wife.
The lawyer for the wife prepares a stipulation erroneously providing for the termination of maintenance on the remarriage of either party. H asks his lawyer if he remarries it will terminate his alimony. What should lawyer do?
BOUNDS OF ADVOACY 1.5 - SHOULD CORRECT INADVERTENT DISCLOSURES
The lawyer should correct the mistake in the stipulation or a judgment entered on it. The lawyer should also bring this
to the attention of opposing counsel.
[1.6] A LAWYER RECEIVING MATERIALS THAT APPEAR TO BE CONFIDENTIAL MUST REFRAIN FROM REVIEWING THE MATERIALS AND MUST RETURN THEM TO THE SENDER.
Goal 1.6 says once the inadvertence is discovered, the receiving lawyer must not further examine the materials and must return them to the sending lawyer.
This goal also follows Goal 1.5, that a lawyer should not rely
on a mistake by opposing counsel but should instead correct inadvertent errors. The error is appropriate for correction between the lawyers without client consultation.
FRPC 4-1.4 Comments: “[t]he guiding principle is that the lawyer should fulfill reasonable client expectations for information consistent with the duty to act in the client’s best interests and the client’s overall requirements as to the character of misrepresentation.” As such, if the client’s best interests are not compromised by the misdelivered documents, then it could be suggested that the lawyer does not need to disclose the inadvertent delivery of the documents
See also Fla. Fam. L. R. P. 12.281
The wife’s lawyer receives a fax with a cover sheet addressed to the husband from the husband’s lawyer. What should receiving lawyer do?
In many cases that would be sufficient to indicate that the wife’s lawyer was an unintended recipient. If, however,
the receiving lawyer has a reasonable basis to believe a copy was intended for him or her, he or she may read the
message unless and until it becomes evident that the message was sent unintentionally.
The lawyer for the husband has sought discovery of numerous documents from the wife relating to issues in the case. In response to the document request, the wife’s lawyer sends over ten large boxes. While reviewing the documents, the husband’s lawyer discovers in a seemingly unrelated file
a letter from the wife’s lawyer to the wife that begins: “As to your question about your use of drugs prior to your
marriage to husband …”
GOAL 1.6 Unless the husband’s lawyer has a reasonable
basis to believe the letter was provided intentionally, was relevant, and was not otherwise confidential, the lawyer
should stop reading and return the letter to the wife’s lawyer.
[1.7] A LAWYER MAY USE MATERIALS RECEIVED FROM
ANY SOURCE UNLESS THE MATERIALS APPEAR
TO BE PRIVILEGED, CONFIDENTIAL, OR IMPROPERLY OBTAINED.
Generally, you can rely on any info given to you so long as it isn’t privileged, confidential or improperly obtained but you need to exam the source.
For example, a lawyer receiving an unmarked envelope containing statements of undisclosed accounts in the name of the other party may use the materials. A receiving lawyer who believes the materials were intentionally withheld from a response to a proper discovery request should report the fraud to the court.
[1.8] A LAWYER MUST COOPERATE IN THE EXCHANGE OF DISCOVERY
In sum, discovery in family law cases is information gathering, not an adversarial weapon
12.285 & 12.280 require supplemental disclosure whenever material change in finances occurs during litigation
What are examples of improper discovery conduct under Goal 1.8
(1) avoidance of compliance with discovery through overly narrow construction of interrogatories or requests for production;
(2) objection to discovery without a good faith basis;
(3) improper assertion of privilege;
(4) production of documents in a manner designed to hide or obscure the existence of particular documents;
(5) directions to parties and witnesses to not respond to deposition questions without adequate justification;
(6) requests for unnecessary information that does not bear on the issues in the case; and
(7) failure to make a good faith effort to resolve legitimate discovery disputes.
Where can lawyers go afoul with discovery and staying within bounds of 1.8 goal
Depositions - lawyers should not coach deponents by objecting, commenting, or otherwise acting in a manner that suggests a particular answer to a question. Objections should only be made in the manner and on grounds provided by
applicable court rules. Lawyers should not intentionally misstate facts, prior statements, or testimony. Such conduct increases animosity without legitimate purpose.
12.310(c) prohibits bad conduct during depos: The
rule requires that any objection during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.
In Florida, all objections are reserved except as to the form of questions. Therefore, it is inappropriate to make objections to any evidentiary basis other than the form of a question, or as permitted by Rule 12.310
[1.9] A LAWYER MUST NOT USE DISCOVERY
FOR DELAY, HARASSMENT, OR OBSTRUCTION.
Discovery should only be used to ascertain relevant facts - not for harassment or to dengerate income.
[1.10] A LAWYER MUST NOT ASK IRRELEVANT PERSONAL QUESTIONS OR QUESTIONS DESIGNED TO EMBARRASS THE WITNESS.
Only ask about relevant info.
See FRPC: 4-4.4(a): (a) In representing a client, a lawyer may not use means that have no substantial purpose other than to embarrass, delay, or burden a third person or knowingly use methods of obtaining evidence that violate the
legal rights of such a person.
[1.11] A LAWYER SHOULD GRANT REASONABLE EXTENSIONS OF TIME THAT WILL NOT ADVERSELY AFFECT THE CLIENT’S LEGITIMATE INTERESTS.
Grant extensions liberally and don’t request extension to obtain an unfair advantage.
[1.13] A LAWYER MUST PROVIDE NOTICE AS SOON AS POSSIBLE OF THE NEED TO CANCEL ANY SCHEDULED MATTER.
Notice of cancellation should be given to the
court, all lawyers, the client, and witnesses to avoid unnecessary expense.
[1.14] A LAWYER MUST TRANSMIT PROPOSED ORDERS, OTHER THAN EX PARTE ORDERS, TO THE OTHER SIDE BEFORE SUBMISSION TO THE COURT. A LAWYER MUST PROMPTLY COMMUNICATE APPROVAL OR OBJECTION
TO THE PROPOSED ORDER.
Obviously show other side before submitting and limit it to court’s actual ruling.
[1.15] A LAWYER MUST NOT SEEK AN EX PARTE
ORDER EXCEPT IN EXIGENT CIRCUMSTANCES
With the exception of admin orders that don’t require exigent circumstances (i.e. discovery)
Even when authorized by law, ex parte proceedings present the potential for unfairness since “there is no balance of presentation by opposing advocates.”
FRPC 4-3.3(d): . The lawyer for the represented party must disclose all “material facts known to the lawyer that will enable the tribunal to make
an informed decision, whether or not the facts are adverse.”
FRPC 4- 3.3(d). Fairness and professional courtesy call for notice to other counsel courtesy call for notice to other counsel
[1.16] A LAWYER MUST DELIVER DOCUMENTS TO
THE COURT AND THE OTHER SIDE AT THE SAME TIME.
Always try to submit simultaneously to court and oc - can be different methods but at the same time.
[1.17] A LAWYER MUST AVOID DISPARAGING PERSONAL REMARKS OR ACRIMONY TOWARD THE OPPOSING PARTY, OPPOSING COUNSEL, THIRD PARTIES, OR THE COURT.
FRPC 4-3.3 mandates candor toward the Tribunal.
FRPC 4-3.4 requires fairness to opposing party and counsel.
Professionalism Expectations 3, 4, and 5 dictate adherences to a fundamental sense of honor, integrity, and fair play; the fair and efficient administration of justice; and using decorum and courtesy.
[1.18] A LAWYER MUST NOT INAPPROPRIATELY
COMMUNICATE WITH A PARTY REPRESENTED BY A LAWYER
Cannot communicate with represented party without consent per FRPC: 4-4.2.
This rule applies even though the represented person initiates or consents to the communication.
A lawyer should not accept or send a “friend request” to an opposing party or engage in any social media or electronic communication.
A lawyer should avoid sending emails to opposing counsel copied to the client simultaneously, especially when doing so would inflame the issues unnecessarily and may result in the clients replying to all in the email and inadvertently communicating with opposing counsel.
[2.1] A LAWYER SHOULD ADVISE THE CLIENT OF THE EMOTIONAL AND ECONOMIC IMPACTS OF ALTERING THE FAMILY STRUCTURE, AND EXPLORE ALL OPTIONS INCLUDING RECONCILIATION.
Your role is to act as a counselor and advisor. Should discuss reconciliation / counseling.
[2.2] A LAWYER SHOULD ADVISE THE CLIENT OF
THE POTENTIAL EFFECT OF THE CLIENT’S CONDUCT IN DISPUTES INVOLVING CHILDREN.
You have an affirmative duty to advise client of effect of their conduct on their kids. Guide them in how to conduct themselves before and during litigation.
If parenting issues are present, refer them to parenting course early (61.21 requires course 45 days after P files and 45 days after R served)
If a party insist on using kid as bargaining chip, you should withdraw.
[2.3] A LAWYER MUST ADVISE THE CLIENT
ABOUT ALTERNATIVE DISPUTE RESOLUTION
Discussion these options with client and explain the costs of litigation.
