FL Professional Responsibility Flashcards
Who regulates admission to the Florida bar?
FL Supreme Court
When does a lawyer have a duty to report another lawyer’s violation of the Florida Rules of Professional Conduct
When it raises a substantial question as to the lawyer’s
- honesty
- trustworthiness, or
- fitness to practice law
True or False:
Pro bono service to the poor is mandatory
False
True or False:
Annual reporting of pro bono services is mandatory
True
When can a lawyer share fees with non-lawyers?
ESPN-B
Estates of deceased lawyers for work done before death
Sale of a law practice of dead, disabled, disappeared lawyer
Pensions paid to retired firm lawyers
Non-profit organizations but only court-awarded fees
Bonuses paid to firm staff
How must a lawyer communicate fees to a NEW versus an OLD client?
NEW: they must communicate the basis/rate of the fee & preferably in writing
OLD: don’t have to communicate if there’s already a basic understanding of the basis/rates of the fees
True or False
Fees and any costs charged to the client must be reasonable and not excessive
True
True or False
A lawyer should provide at least 20 hours of pro bono service, or contribute at least $350 to a legal aid organization annually.
True
Can non-lawyers be partners with lawyers?
no bc this arrangement can compromise the lawyer’s professional independence
Who must make make reasonable efforts to ensure that lawyers and non-lawyers comply with the RPC?
Partners for lawyers
and lawyers for legal assistants/clerks/paralegals
What factors do courts consider when determining weather a fee is reasonable?
ERRANT PLANS
- Experience***
- Reputation
- Results
- Ability
- Novelty/difficulty of the matter***
- Time and labor
- Preclusion from other work
- Limits imposed on representation by client
- Amounts involved in case
- Normal fees within the community***
-Skills required (Acquisition of a skill= more fees)
contingency fee
A fee whose payment depends on the results obtained for the client
Requirements for contingency fees
- must be in writing and signed by client and all participating lawyers
- states % payable to lawyer
- states if any expenses will be deducted from the recovery and if so, if deducted before or after calculation of the fee
addt’l reqs for contingency fee arrangements in personal injury cases
- K must state client read and understands the “statement of client’s rights”
- client must get a signed copy of the statement
-statement must state client can cancel K within 3 days of entering into it
addt’l reqs for contingency fee arrangements in medical liability cases
- give client oral + written notice of the FL Constitituin’s fee limit prviison
- inform client that unless waived they must receive 70% of the first 250K of all damages and 90% of damages in excess of 250K
-if they waive, they must put the waiver in writing and under oath
What types of cases prohibit contingency fees?
- criminal cases
- domestic relation cases where outcome depends on securing/setting a divorce, alimony, support, or property settlement
(this wouldn’t apply if it is just to enforce child support, for example)
Percentages allowed of contingency fees before presumed to be excessive
BEFORE filing answer/demand:
- 33.3% –> 1M recovery
- 30% –> 1-2M recovery
- 20% –> 2m+ recovery
AFTER filing answer/demand:
- 40% –> 1M recovery
- 30% –> 1-2M recovery
- 20% –> 2m+ recovery
Division of Fees for lawyers not in the same law firm (like with referrals fees)
Personal Injury:
- 75% to lawyer w primary authority
- 25% to lawyer w secondary authority
Any other cases:
(i) the division must be proportionate to the work performed; OR
(ii) there needs to be a written agreement w client that the lawyers assumed joint responsibility
A fee charged by a lawyer is clearly excessive if ______________ would have a definite and firm conviction that it exceeds a reasonable fee to such a degree that it constitutes overreaching.
a lawyer of ordinary prudence
Which of the following types of fees is instantly earned by the lawyer?
An availability retainer
Advertisements vs. Solicitation
Advertisement:
communication targeted to a braid audience
Solicitation:
communication targeted to a specific group/individual that require legal needs
general reqs for an advertisement
- name at least 1 lawyer or the law firm + location
- file a copy w FL Bar 20 days before dissemination
- have a copy of the ad for 3 years after last dissemination
- ad cant be unduly manipulative
- if claiming to be board certified, must be certified by FL bar/org accredited by FL Bar/another state bar w standards comparable to FL’s
- no celebrity endorsements/testimonials
3 things an advertisement CANT be
- false
- misleading
- deceptive
(by having material representations for example/unverifiable info)
Reqs for written solicitation that is allowed
- marked as “advertisement” on the envelope and every page. Or subject line if its an email
- written statement w info in the lawyer/firm training and experience
- if fee K included then it must be marked SAMPLE in all caps and red + “Do not Sign” in large font
- must not resemble an official legal document
Reqs for Written Solicitation Triggered by “Specific Occurrence”
- must state who will handle the matter
- must state how lawyer learned of the prospective client’s need to legal services
- any envelope mail must not reveal nature of recipient’s legal problem
In personal injury and wrongful death cases, you cant send written communications unless the accident occurred more than how many days prior to mailing?
more than 30 days
True or false:
A lawyer may solicit clients for pro bono representation.
true
A lawyer can’t accept referrals from a lawyer referral service UNLESS the service
-> doesn’t engage in prohibited solicitation rules
-> responds to any inquiries from bar counsel in 15 days
-> uses its legal name or a registered name in all public communications.
-> States that lawyers pay to participate in the service.
What are the lawyer’s duties to its client?
Duty of loyalty
Duty of confidentiality
What is the test for whether an attorney-client relationship has been formed?
the reasonable expectation of the client
must a lawyer preserve confidences for people who they had a consultation with but did not maintain as clients?
Yes, lawyers still owe duty of confidentiality to prospective clients
must lawyers maintain a normal attorney-client _ relationship with clients with Diminished Capacity?
Yes, to extent reasonably possible.
If not possible, then lawyer can seek appointment of a guardian
Who controls the scope and objectives of the representation?
the client
Who controls the means or tactics used in the representation?
the lawyer
can the lawyer and client negotiate the scope of representation?
Yes, if limits are reasonable + clients gives informed consent in writing
What are the client’s decisions within civil & criminal cases?
Civil:
-> Whether to settle
(although settlements made by the attorney can be binding on the client bc of their apparent authority)
Criminal:
- whether to testify
- whether to waive a jury trial, and
- whether to accept/enter a plea deal
True or False:
Lawyer may not counsel or assist client
in conduct the lawyer knows (or reasonably should know) is criminal/fraudulent
True
- But, they can discuss legal consequences of proposed actions
reasonable belief that you can still provide competent and diligent representation to both parties and you ge tthe consent after consultation
Regarding current client conflicts, what are the 2 instances that a lawyer cant represent someone?
(1) If representation would
be directly adverse to a current client (opposite sides of the v.)
or
(2) If the representation would be materially limited by the lawyer’s obligation to current clients, former clients, 3rd person, or the lawyer’s own personal interest
UNLESS –> conflict is consentable
4 part test for conflict consentability
(1) lawyer believes they can still provide competent and diligent representation to each affected client
(2) representation wouldn’t be prohibited by law
(3) wouldn’t assert adverse positions to the diff clients in the same proceeding in front of the tribunal
(4) each client gives consent confirmed in writing/on record in a hearing
When would a conflict of interest regarding former clients come up?
when the representation would be materially adverse to a former client bc it’s either the same matter or one substantially related
UNLESS -> there is informed consent
Can a lawyer use confidential info against a former client or reveal that info?
No they cant use confidential info they learned from former clients.
UNLESS -> the info has become generally known bc no longer confidential
Can a lawyer represent a client that would be on opposite sides of the v. in diff cases?
no, cant be same side of the v.
Client tells lawyer, I cant afford to pay you rn but you can have the literary rights to this representation.
Allowed or not allowed?
Not allowed
A lawyer can’t negotiate/acquire literary or media rights relating to the representation of a client before the case closes
Rules for business transactions between lawyers and their client
- transaction must be fair and reasonable to the client + fully disclosed in writing
- lawyer must advise client to seek independent counsel in writing
- client must consent to the transaction in writing
- Any prohibited business transaction will be imputed to the entire firm
Can you draft a will for a client that is bequesting something to you?
No, a lawyer can’t solicit any gifts unless the lawyer is related to the client
(so you can draft wills for your family)
How much say does a third party who is paying for the client’s representation have in the case?
None.
Third parties cant ever direct representation or interfere with a lawyer’s professional judgement/duties to client
Can a lawyer accept payment for representation from someone other than the client?
no, unless:
(1) client gives informed consent
(2) there’s no interference by the third party
(3) the confidentiality between lawyer/client is protected
True or False:
When having an Organization as a client, only the organization itself is the client not any any of its officers, directors,
or employees.
True, only the organization is the client
-But, both the org and its constituents can be represented if interests are aligned + there is consent
What do dual representations require?
consent by both parties
True or False:
Lawyer cannot mislead a constituent of the organization into thinking
the lawyer represents the constituent when it doesnt
True
Can a lawyer accept a gift from a client if it isn’t solicited?
yes