FL Professional Responsibility Flashcards
Fees: Reasonable Fees
Lawyer’s fees have to be reasonable and not excessive.
Factors:
- What the customary fee in the community for similar work is.
- The time and work involved.
- What experience, reputation and ability does the lawyer have for the type of work
Fees: Receiving Fees from 3rd Parties
Generally, a lawyer cannot receive fees from third parties to pay for the cost of client’s representation, unless:
- Client gives consent
- There is no evidence of interference with the attorney/client relationship (independent) judgment making (decision making); and,
- Attorney confidentiality is maintained
Fees: Court ordered Attorney Fees
Not usually given unless:
- There is a contractual agreement
- Sanctions against opposing counsel
- Statute provides fees
Fees: Contingency Fee
Contingency fees are not allowed in criminal matters or family matters.
Requirements:
- Needs to be in writing
-
How fee is calculated (generally depending on when/how fees will be collected is 15-40%).
- Cannot go beyond the 40% statutory guidelines and is thus considered excessive.
- If case is settled/trial/appeal: then delineating at what stage and what percent will be awarded
-
What expense are deducted and when are they deducted?
- Before or after percentage is calculated. Net or gross.
- BEFORE agreement is signed, must give client a “STATEMENT OF CLIENT RIGHTS” relating to the fees and have 3-days to retract the agreement.
Trust Accounts
A client’s money/property is held in a trust account –
- all property has to be kept separate from lawyer’s own account (no comingling of law firm funds) AND
- needs to be labeled “TRUST ACCOUNT”
Court Costs
attorney cannot give financial assistance to clients, but an attorney can advance funds for court or expenses.
Fees: Referral Fees
- Cannot split fees with non-lawyers
Permitted when:
- amount is broken into the proportional percentage of work done by each attorney
- Written agreement with client that there is a joint (agreement) responsibility of representation and sets out exactly what is going to happen
Conflicts of interest: general rule and exception
Generally, a lawyer may not represent a client if doing so would be directly adverse to other clients
or
If the lawyer’s independent judgment would be limited in their responsibilities to another client.
Unless:
- The lawyer reasonably believes his independent judgment and decision making will not be adversely affected and
- the client gives informed consent in writing or states on the record in a hearing.
Conflicts of Interest: Business relationships
Lawyer cannot enter into a business transaction or take financial interest adverse to a client except:
- The transaction is fair and reasonable
- Full disclosure in writing is given to the client
- The client gives informed consent after a reasonable opportunity to confer with independent counsel
Conflict of Interest: Conflicting former Client Representation
A lawyer cannot represent a new client whose position is materially adverse to a former client in matters that are substantially similar, unless, the former client gives informed consent.
Conflict of interest: Imputed disqualification
if a lawyer has a conflict of interest with a present or former client then that conflict is imputed to the firm. EXCEPT:
- If the lawyer leaves the firm, the firm may represent a client whose interest is adverse to the former client,
-
UNLESS
- it is the same or substantially same case as the prior case OR:
- the remaining lawyer at the firm has confidential information on the former client.
-
UNLESS
Conflict of Interest: Multiple Parties
If multiple clients want to be represented by one lawyer, they must be informed of the risks of doing so.
Solicitation
An attorney cannot solicit clients if they do not have a preexisting familial or professional relationship, if the lawyer’s motive is pecuniary (monetary) gain.
Advertisement and Mailings
A lawyer can advertise through various mediums as long as the
- name of the lawyer and
- location of the practice is provided.
The advertisement cannot have:
- Unverifiable past results
- False or misleading or deceptive info
- Reference legal fields that do not regularly practice
- Information about other lawyers (no shit talking)
- Gurentees about outcome
- State attorney specialization unless Florida Board Certified
(Verifed Testimonial Permitted but it cannot be by someone not qualified, not the person who has the actual experience, and must contain a disclaimer that clients may not get same result obtained.)
A potential Tort plaintiff cannot be contaced within 30 days of accident
Mailings: Envelope must have in red ink “Advertisement” on bottem left of envolpe and first page.
Must contain a written detailed background and training and experiance of the lawyer
Solicitation: Already Represented Potential Clients
Can’t talk to another lawyer’s client without their lawyer present.
