Ethics & Bounds of Advocacy

Question 1

What chapter of the Rules Regulating the Florida Bar provides the framework for the ethical duties of lawyers?

Answer 1

Chapter 4.

Question 2

What chapter of the Rules Regulating the Florida Bar addresses trust accounts.

Answer 2

Chapter 5.

Question 3

What are the bounds of advocacy?

Answer 3

A publication originally published by AAML, an updated version of which was published by the Family Law Section of the FL Bar. The Bounds of Advocacy provide a guide for Florida lawyers on the professional and ethical dilemmas that are unique to the practice of family law.

Question 4

What are the Florida Rules of Professional Conduct?

Answer 4

Provides a basic level of ethical and professional conduct required of all members of the FL Bar. Failure to comply with the FRPC is grounds for disciplinary measures.

Question 5

Are the bounds of advocacy enforceable?

Answer 5

No, rather they are aspirational.

Question 6

What is the test for determining the existence of the lawyer-client relationship?

Answer 6

The test for determining the existence of the lawyer-client relationship is subjective and hinges upon the client’s belief that he or she is consulting a lawyer in that capacity and the intention is to seek professional legal advice. Whether a law firm has been technically retained is not determinative of whether the relationship began.

Question 7

What is Rule 4-1.1 of FRPC?

Answer 7

Competence: A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Question 8

Can a lawyer accept representation where the requisite level of competence can be achieved by reasonable preparation?

Answer 8

Yes.

Question 9

What is Rule 4-1.2 of FRPC?

Answer 9

Objectives and Scope of Representation: (a) lawyer to abide by client’s decisions; (b) no endorsement of client’s views or activities; (c) limitation of scope of representation- lawyer and client may agree to limit the objections or scope of representations if client gives informed consent in writing; (d) criminal or fraudulent conduct- lawyer must not counsel client to engage in conduct the lawyer knows or should know is criminal or fraudulent.

Question 10

What should the lawyer do if the lawyer and client disagree about the means to be used to accomplish the client’s objectives?

Answer 10

The lawyer should consult with the client and seek a mutually acceptable resolution of the disagreement. If that is not possible and there is a fundamental disagreement, the lawyer may withdraw from the representation.

Question 11

What is Rule 4-1.5 of FRCP

Answer 11

(a) Illegal, Prohibited, or Clearly Excessive Fees and Costs. A lawyer must not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar. A fee or cost is clearly excessive when:
(1) after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the lawyer; or
(2) the fee or cost is sought or secured by the lawyer by means of intentional misrepresentation or fraud upon the client, a nonclient party, or any court, as to either entitlement to, or amount of, the fee.

Question 12

Factors to Be Considered in Determining Reasonable Fees?

Answer 12

(A) the time and labor required, the novelty, complexity, difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(B) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;
(C) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;
(D) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;
(E) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;
(F) the nature and length of the professional relationship with the client;
(G) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and
(H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation.

Question 13

Factors to Be Considered in Determining Reasonable costs?

Answer 13

(A) the nature and extent of the disclosure made to the client about the costs;
(B) whether a specific agreement exists between the lawyer and client as to the costs a client is expected to pay and how a cost is calculated that is charged to a client;
(C) the actual amount charged by third party providers of services to the attorney;
(D) whether specific costs can be identified and allocated to an individual client or a reasonable basis exists to estimate the costs charged;
(E) the reasonable charges for providing in-house service to a client if the cost is an in-house charge for services; and
(F) the relationship and past course of conduct between the lawyer and the client.
All costs are subject to the test of reasonableness set forth in subdivision (a) above. When the parties have a written contract in which the method is established for charging costs, the costs charged under that contract will be presumed reasonable.

Question 14

What is Rule 4-1.6 of FRPC?

Answer 14

A lawyer shall not reveal information relating to representation of a client except under certain conditions.

Question 15

What is Rule 4-1.3 of FRCP?

Answer 15

Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.

Question 16

What is Rule 4-1.4 of FRCP?

Answer 16

RULE 4-1.4 COMMUNICATION
(a) Informing Client of Status of Representation. A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in terminology, is required by these rules; (2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished; (3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with reasonable requests for information; and (5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows or reasonably should know that the client expects assistance not permitted by the Rules of Professional Conduct or other law.
(b) Duty to Explain Matters to Client. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Question 17

The receipt of inadvertent disclosure of privileged information warrants disqualification of counsel when the movant establishes what?

Answer 17

(1) the inadvertently disclosed information is protected, either by privilege or confidentiality; and (2) there is a possibility that the receiving party has obtained an unfair informational advantage as a result of the inadvertent disclosure

Question 18

What is Rule 4-3.2 of FRPC?

Answer 18

Expediting Litigation: a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

Question 19

What is Rule 4-1.7 of FRPC?

Answer 19

Conflict of Interest; Current Clients: Except as provided in subdivision (b), a lawyer must not represent a client if: (1) the representation of 1 client will be directly adverse to another client; or (2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyers responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

Question 20

What is Rule 4-1.8 of FRPC?

Answer 20

Conflict of Interest; Prohibited and Other Transactions:

Question 21

What is Rule 4-1.9 of FRCP?

Answer 21

Conflict of Interest; former clients: A lawyer who has formerly represented a client in a matter must not afterwards: (a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client give informed consent; (b) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or (c) reveal information relating tot he representation except as these rules would permit or require with respect to a client.

Question 22

What is Rule 4-3.3 of FRPC?

Answer 22

Candor Toward the Tribunal: A lawyer cannot make a false statement of fact or law to a tribunal, fail to correct a false statement of material fact or law previously made to a tribunal, fail to disclose a material fact to a tribunal when necessary to avoid assisting a criminal or fraudulent act of the client; fail to disclose legal authority adverse to the position not disclosed by opposing counsel, offer evidence that lawyer knows is false.

Question 23

What is 4-1.18 of FRCP?

Answer 23

Duties to a Prospective Client: a lawyer may not use or reveal the information gained from a prospective client, when where the lawyer or prospective client fails to purse the case.