Entering into the attorney-client relationship

Question 1

What is the Florida Bar pro bono requirement?

Answer 1

The Florida Bar requires that a lawyer aspire to provide at least 20 hours of pro bono service annually or make an annual contribution of $350 to a legal aid organization.

Question 2

May a lawyer participate in law reform activities?

Answer 2

Yes, even if such reform may affect the interests of any of her clients. However, when the lawyer knows that a client’s interests may be materially affected by a decision, the lawyer must disclose that fact to the reform organization (but need not identify the client)

Question 3

When can a lawyer seek to avoid appointment?

Answer 3

A lawyer must NOT seek to avoid appointment except for good cause, such as:

1. Representing the client is likely to result in a violation of the RPC or other law,
2. Representing the client is likely to result in an unreasonable financial burden on the lawyer, or
3. The client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or his ability to represent the client

Question 4

May a lawyer refuse to represent an indigent person, under any circumstances?

Answer 4

NO!!!

Question 5

When is there a “conflict of interest”?

Answer 5

1. Where the representation of one client will be directly adverse to another client; or
2. There is a substantial risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by a personal interest of the lawyer

Question 6

If a conflict of interest DOES exist, when may a lawyer STILL represent a client?

Answer 6

Where:

1. the lawyer reasonably believes the lawyer will be able to provide competent and diligent representation to each affected client;
2. the representation is not prohibited by law;
3. the representation does not involve asserting a position that is adverse to another client, when the lawyer represents both clients in the same proceeding before a tribunal; and
4. Each affected client gives informed consent, confirmed in writing

Question 7

What does “confirmed in writing” entail?

Answer 7

1. the client executes a document; or
2. the lawyer promptly records and transmits a confirmatory document to the client following the client’s oral consent

Question 8

May a lawyer enter into a business transaction with a client or knowingly acquire an ownership or other pecuniary interest adverse to a client?

Answer 8

NO!! Unless:

1. the transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client;
2. the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent counsel on the transaction; and
3. the client gives informed consent in a signed writing to the essential terms of the transaction and the lawyer’s role in it, including whether the lawyer is representing the client in the transaction

Question 9

Does the rule against entering into business transactions with a client apply to standard commercial transactions?

Answer 9

No.

Question 10

Can a lawyer use information relating to representation of a client to the disadvantage of the client?

Answer 10

NO unless the client gives informed consent.

Question 11

Can a lawyer solicit or prepare gifts to himself or someone related to him?

Answer 11

No. a lawyer generally may not:

1. solicit any gift, including a testamentary gift, from a client; or
2. prepare an instrument giving any gift to the lawyer or a person related to the lawyer

Only allowed if the client is related to the lawyer.

Question 12

When can a lawyer get the literary/media rights based on representation?

Answer 12

Generally cannot get these prior to the conclusion of representation of a client. (cannot be solved by informed consent)

Question 13

When may a lawyer provide financial assistance to a client?

Answer 13

Only in the following situations:

1. a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
2. a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client

Question 14

When can a lawyer accept compensation from someone other than the client?

Answer 14

Only where:

1. the client gives informed consent;
2. there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
3. information relating to representation of the client is protected as confidential

Question 15

Can a lawyer representing two or more clients make an aggregate settlement?

Answer 15

No, unless each client gives informed consent in a signed writing

• the lawyer’s disclosure must include the existence and nature of all the claims/pleas involved and of the participation of each person in the settlement/agreement

Question 16

Can a lawyer make an agreement prospectively limiting liability for malpractice?

Answer 16

No, unless permitted by law and the client is independently represented in making the agreement

Question 17

What is required for a lawyer to settle a claim for malpractice liability?

Answer 17

A lawyer must not settle a claim for malpractice liability with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate.

Question 18

Can a lawyer acquire a proprietary interest in the cause of action/subject matter of litigation?

Answer 18

No, except that the lawyer may:

1. acquire a lien granted by law to secure the lawyer’s fee or expenses, and
2. contract with a client for a reasonable contingent fee in a civil case

Question 19

What is a Statement of Insured Client’s Rights?

Answer 19

A statement that informs the insured that, among other things,

1. the insured has a right to know the lawyer’s education, training, and experience;
2. the insurance company usually pays the fees and costs of defending a claim, but if the insured is responsible for directly paying the lawyer any fees or costs, the lawyer must promptly inform the insured;
3. the lawyer will take instructions from the insurance company if the insurance policy so provides, but the lawyer cannot act contrary to the insured’s interests;
4. the insured is entitled to be informed if the insurance company has declined authorization for a service or action the lawyer believes is necessary to the defense;
5. the lawyer may have a duty to share confidential information with the insurance company;
6. the lawyer must advise the insured of conflicts of interest
7. the policy may give the insurance company the right to make the final decision regarding settlement; and
8. there might be a judgment entered for more than the policy amount, which the insured might have to pay

Question 20

What is a local government attorney prohibited from doing?

Answer 20

1. soliciting or accepting gifts, compensation, or things of value based on an understanding that the attorney will be influenced in an official act by that gift, compensation, or thing of value;
2. corruptly using or attempting to use the attorney’s official position for personal benefit or advantage;
3. disclosing or using information not available to the general public for personal gain or for the gain of another person or business; and
4. representing a private individual or entity before the unit of local government to which the attorney provides services

Question 21

When opposing counsel is lawyer’s parent, child, sibling or spouse…

Answer 21

This conflict is personal to the disqualified lawyer and is not imputed to other lawyers within a firm

Question 22

May a lawyer represent a current client against a former client?

Answer 22

No, a lawyer must not represent another client in the same or a substantially related matter in which that client’s interests are materially adverse to the interests of the former client unless the former client gives informed consent.

Question 23

What is a “substantially related” matter?

Answer 23

Matters are substantially related if:

1. they involve the same transaction or legal dispute, or
2. the current matter would involve the lawyer attacking work that the lawyer performed for the former client

Question 24

How must a lawyer use the former client’s information?

Answer 24

A lawyer must not use information relating to the representation to the disadvantage of the former client, except as the rules would permit or require with respect to a current client, or when the information has become generally known.

Question 25

What is the meaning of “generally known”?

Answer 25

Generally known means information that has been widely disseminated by the media to the public, or that typically would be obtained by any reasonably prudent lawyer who had never represented the former client. Such information ordinarily will not be disqualifying.

Question 26

May a lawyer represent a client in litigation if she is likely to be a necessary witness?

Answer 26

Ordinarily, no. An attorney may act as advocate in a trial in which another attorney in the attorney’s firm is likely to be called as a witness, unless precluded from doing so. However, there are four exceptions to this general rule.

Question 27

Uncontested matter

Answer 27

If the attorney’s testimony will relate solely to an uncontested matter, representation is not prohibited.

Question 28

Matters of formality

Answer 28

An attorney may continue to represent a client if the attorney’s testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to that testimony.

Question 29

Nature and value of legal services

Answer 29

If an attorney’s testimony will concern only the nature and value of legal services rendered to the client, the attorney will not be prohibited from representing the client.

Question 30

Substantial hardship

Answer 30

If the withdrawal of the attorney for the purpose of testifying would result in substantial hardship to the client because of the distinctive value of the lawyer or firm to the case, the attorney may continue to represent the client

Question 31

Lawyer represents organization

Answer 31

A lawyer employed or retained to represent an organization represents the organization acting through its duly authorized constituents.

Question 32

Does a lawyer need to act in the best interest of the organization?

Answer 32

YES! If a lawyer for an organization knows that an officer, employee, or other person associated with the organization is engaged in action, intends to act, or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law which reasonably might be imputed to the organization, and is likely to result in substantial injury to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization

Question 33

Factors lawyer must consider in representing organizations

Answer 33

In determining how to proceed, the lawyer must give due consideration to the seriousness of the violation and its consequences, the scope and nature of the lawyer’s representation, etc…

Some measures include:

1. asking for reconsideration of the matter;
2. advising that a separate legal opinion on the matter be sought for presentation to the appropriate authority in the organization
3. referring the matter to a higher authority in the roganization

Question 34

What should a lawyer do when the organization’s highest authority insists upon action, or inaction that is a violation of the law?

Answer 34

If it is a violation of the law and is likely to result in substantial injury to the organization, the lawyer may resign.

Question 35

Disclosing identity of client (organization)

Answer 35

In dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents, a lawyer must explain the identity of the client when the lawyer knows or reasonably should know that the organization’s interests are adverse to those of the constituents with whom the lawyer is dealing.