FL PR Flashcards
Attorneys Fees: reasonable fees
Attorney’s fees must be reasonable and not excessive.
- customary fee in the community for similar work
- time and amount of work involved
- the experience/ability of that lawyer
Attorneys fees: third party
Cannot receive fees from third party unless:
i. Client gives consent
ii. No interference with attorney’s judgment
iii. Confidentiality is maintained
Court order attorneys fees:
Generally not allowed, unless:
i. It’s by statute
ii. By contract
iii. Or court is ordering sanctions
Contingency fees:
NOT ALLOWED IN FAMILY OR CRIMINAL LAW
Contingency fees
i. Not allowed in family law or criminal law
ii. Agreement must be in writing and:
- Must include how fee is calculated
- Range is between 15% and 40%
a. Excessive is over 40% - When are the expenses deducted/calculated?
- Client given a statement of rights
a. Have 3 days to retract the agreement
Referral fees (lawyer is referred by another individual): generally not allowed unless
- If the amount divided is proportional to the work
- Written agreement with the client
- Agreement sets out what division will be made
- There is an actual written agreement
Trust accounts
- All property in c_lient accounts or trust accounts_ must be kept separate from attorney’s personal account. No commingling
- Label must actually say “trust account”
Financial help to clients
A lawyer may not give financial help to clients unless advancing court costs or expenses.
Conflict of Interest
A lawyer may not represent a client if doing so would be materially limited by their responsibility to another client.
i. or, if lawyer’s independent judgment would be materially limited by their responsibility to another client
a. unless, if lawyer reasonable believes that judgment would not be adversely affected, or
b. if client gives informed consent in writing or at a hearing
Conflict of interest: lawyer may not enter into a business transaction or take a financial interest adverse to client
A. Lawyer may not enter into a business transaction or take a financial interest adverse to a client unless:
- transaction is fair and reasonable
- There is full disclosure in writing
- Client consents in writing after given reasonable opportunity to seek independent counsel
Conflict of interest: Lawyer cannot take a proprietary interest in the case itself
Lawyer cannot take a proprietary (ownership) interest in the case itself, but may
secure a lien in the cause of action to secure fees
Conflict of Interest: to former client
A lawyer may not represent a client in the same or substantially related matter where that client’s interests are materially adverse to another client;
unless the former client givs informed consent.
Imputed conflict of interest: conflict that applies to a lawyer applies to the rest of the lawyers in the firm.
A conflict that applies to a lawyer applies also to the rest of the lawyers in their firm.
If the lawyer leaves the firm and takes clients with them, then the firm itself may represent the client whose interests are adverse to a former client that left with that lawyer, unless it is the same or substantially related matter or the remaining lawyer at the firm has confidential information about the former client.
Conflict of interest: if multiple clients want to be represented by same lawyer
If multiple clients want to be represented by the same lawyer, the lawyer must explain the implications to them.
Solicitation
A lawyer cannot solicit business from a prospective client with whom they have no family or prior professional relationship with if their motive is pecuniary gain.
Solicitation/advertising
A lawyer may have a written mailing (typically torts cases) but cannot contact a client less than 30 days after the accident.
- As long as the name of the lawyer and practice is given
- No false, misleading, deceptive info
- No guarantees about outcome
- Cannot reference areas of law you don’t practice. Can say you’re certified if you’re certified by the FL bar if you are
- Lower left hand corner of the envelope should say advertisement and first page must say advertisement
- Don’t talk about other lawyers or past results that aren’t verifiable.
- Testimonials must be truthful and qualified, and disclaimer that other clients result may not be the same
- Can include a written statement about the background, training etc of lawyer
solicitation
a lawyer may not talk to someone who is represented by another attorney.
Professionalism:
Lawyer must act all times in a professional, courteous, and dignified manner.
Lawyer must act all times in a professional, courteous, and dignified manner.
- When dealing with opposing counsel or judge, act with integrity and be reasonable in responses. Must practice integrity and fair play.
- Lawyer can’t do anything to threaten, harass, or embarrass
- When dealing with motions, always make sure they are backed up with facts.
- Cannot make frivolous claims
- Nothing done in the court process should cause delay and must be done with fact
- Must be independent, not persuaded to act a certain way to a client. Cannot be influenced by client or anyone else.
Confidentiality
A lawyer must maintain their duty of confidentiality to their clients at all costs.
- Lawyer must maintain their confidentiality forever, even after the death of a client.
- Must be maintained at all costs, unless
- Lawyer knows the client will cause death or bodily harm.
- Or client consents to waiver of confidentiality.
- Lawyer knows the client will cause death or bodily harm.
Duty of Loyalty to a client
Lawyer must maintain duty of loyalty to client.
Comepetency
- Lawyers are assumed to have the basic knowledge, skill, and know how to prepare for their type of representation.
- If lawyer cannot be competent or feel that they are unable to learn, then cannot represent the client.
Torts common PR issue
is client being charged a reasonable fee? Conflict of interest? getting paid by someone other than client?
family law common PR issues
Contingency fees not allowed.
Is there a conflict, is attorney having an affair? Is lawyer getting involved in a business interest?
Trusts common PR issue
- Duty of loyalty to client
- Lawyer must maintain duty of loyalty to client. (no self dealing in trusts)
- Is the lawyer also a trustee?
- Does lawyer have an interest in the trust assets?
