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
True or False:
A lawyer may not solicit any gifts from a client who is not related to the lawyer.
True, family ok
Imputing Lawyers vs. Non-lawyers
A lawyer’s conflict is imputed to other lawyers
But the conflict of a non-lawyer isn’t imputed as long as they’re screened from participation.
(think putting the law student aside from the work)
When a lawyer leaves a firm, the old firm can’t represent someone if:
ALL 3:
(i) Their interests are materially adverse to those of the clients of the
lawyer who left
(ii) The two matters are the same or substantially related;
and
(iii) Any lawyer remaining in the firm has acquired confidential information about the former client
in other words:
When a lawyer leaves a firm, the firm may not represent a person whose interests are materially adverse to the lawyer’s clients in the same or substantially related matter if any lawyer remaining in the firm has acquired confidential information about the former client.
switching firms: the lawyer’s new firm
The lawyers new firm can’t represent someone in a matter that’s the same or substantially related to one that they represented another client on with materially adverse interests and who the lawyer has confidential info from
True or false:
When a lawyer switches law firms, the lawyer’s new firm may represent a client whose interests are materially adverse to a client represented by another lawyer at the lawyer’s former firm if the lawyer did not acquire confidential information about that client while at the firm.
true
Attorney Client Privilege
Attorney-Client Priv:
- testimonial privilege applying in proceedings protecting confidential communications between attorney and client for that was for seeking/giving legal advice
- only client can waive
- privilege lasts indefinitely
> > exceptions: future crime, fraud, disputes between lawyer/client
Duty of Confidentiality
Duty of confidentiality
- protects ALL info relating to the representation of a client, from any source
> > exceptions:
- client gives informed consent
- disclosure impliedly authorized to work
MANDATORY DISCLOSURE:
(1) to prevent death/substantial bodily harm
(2) to prevent client from committing a crime
PERMISSIVE DISCLOSURE:
- respond to civil/crim claims against the lawyer or establish the claim, comply w rules, serve clients best interests, respond to online allegations of crime against lawyer
Safeguarding Client Property
Lawyers CANNOT co-mingle client property with their own
what are client trust accounts limited to containing
- client funds
- client property
- proeprty belonging to 3rd parties
- Funds where 2+ ppl have an interest (like settlement checks)
- funds over which there are fee disputes
- advances on fees, costs, expenses
duty of diligence
Lawyers are expected to be zealous advocates
duty of communication
A lawyer must:
(1) Keep the client reasonably informed of case status
(2) Promptly reply to all requests for information; and
(3) Convey all settlement/plea offers promptly unless the
client agrees in advance otherwise
duty of competence
- New lawyers can become competent through preparation + associating
with competent counsel - A client cant consent to less than competent representation
Is puffing in negotiations permissible?
Yes
Can a lawyer communicate with someone who they know is represented by counsel?
Nom unless either:
(1) opposing counsel consents
OR
(2) the communication is authorized by law
what are the 3 categories of employees that a lawyer cant talk to unless they get consent from the organization’s lawyer?
(1) Employees who exercise managerial authority in the matter;
(2) Any employee in the organization alleged to have committed the
wrongful act at issue; or
(3) Employees who have authority to make decisions about the course of litigation
Do you need consent of the organization’s lawyer to contact a former employee of the org?
No
Can a lawyer talk to unrepresented persons?
Yes, if they clarify their role
What must a lawyer do if they receive a document sent inadvertently?
promptly notify the sender
Can lawyers bring frivolous arguments?
No
Should lawyers make reasonable efforts to expedite litigation consistent with the client’s interest?
Yes
Can lawyers obstruct access to evidence, alter/destroy evidence, or fabricate it?
No, they cant and they cant instruct someone else to do it either
candor to the tribunal
A lawyer must
- correct false statements of material fact
- correct false evidence
- refuse to offer false evidence
-disclose controlling authority directly adverse to their own client’s position
- not allow a client to testify falsely
Can a lawyer refuse to offer evidence they reasonably believe is false?
they MAY refuse to offer, but still can if they want
Must a lawyer Inform tribunal of all material facts in an ex-parte proceeding (one with no opposing counsel)
Yes
Can a lawyer communicate with a judge/official before whom a proceeding is pending as to the merits of the matter?
No, except:
- In actual proceeding
- In writing, with a copy promptly delivered to OC
- Orally, after giving notice to OC or
- As otherwise authorized by law.
Can a prosecutor knowingly prosecute a charge without problem cause?
No
True or false:
Prosecutors must make timely disclosures of evidence negating guilt or
mitigating an offense
True
5 Situations for Mandatory Withdrawal
(1) continuing to represent would result in a violation of the PR rules/law
(2) Lawyer’s physical or mental impairment materially impairs the ability to represent the client
(3) Lawyer is fired by the client
(4) Client insists on criminal or fraudulent courses of action
(5) Lawyer’s services are used to commit crime or fraud
5 Situations for Permissive Withdrawal
(1) No material adverse effect on the client
(2) Client insists on a course of action that is repugnant, imprudent, or
with which lawyer has a fundamental disagreement
(3) client doesn’t pay fees after reasonable warning that the lawyer will
withdraw
(4) The representation imposes an unreasonable financial burden on the lawyer or is rendered unreasonably difficult by the client
(5) other good cause
What are the 6 Standards of Professionalism?
(1) Oath of Admission
(2) Florida Bar Creed of Professionalism
(3) Florida Bar Professionalism Expectations
(4) Guidelines for Professional Conduct (Florida Trial Bar Section)
(5) Rules Regulating Florida Bar
(6) Florida Supreme Court Decisions
A subordinate attorney must act in accordance with what to avoid violating the RPC?
A supervising lawyer’s reasonable resolution of an arguable question of professional duty
What information must a lawyer selling her firm provide by written notice through certified mail to each of her clients?
(1) Notice of the proposed sale
(2) The client’s right to retain other counsel, and (3) That consent to substitution of counsel is presumed if no objection within 30 days after notice is served.
What exceptions apply to the rule prohibiting a lawyer from acquiring a proprietary interest in the cause of action or subject matter of litigation in which a client is represented?
A lawyer may:
(1) Acquire a lien granted by law to secure payment of a fee
and
(2) Contract with the client for a reasonable contingent fee.
Under the RPC, when does a lawyer serve as a third-party neutral?
When the lawyer assists two or more non-clients in a dispute resolution
True or False:
A lawyer may represent opposing parties in the same lawsuit or transaction.
FALSE,
Lawyers can represent opposing parties in the same lawsuit
What does the client decide about the representation?
The client determines the objectives and goals of the representation.
Fill in the blanks.
A lawyer who knows that another has committed a violation of the RPC that raises a _______________ question as to the lawyer’s honesty, trustworthiness, or fitness to practice law __________ inform the appropriate professional authority.
Substantial; must
A lawyer who knows that another has committed a violation of the RPC that raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness to practice law must inform the appropriate professional authority
True or False:
A lawyer may not be part of an agreement that restricts a lawyer’s right to practice as part of the settlement of a client controversy.
True
What is a prospective client?
A person who discusses the possibility of forming a client-lawyer relationship with a lawyer with respect to a matter
When MUST a lawyer reveal information relating to a representation?
When the lawyer reasonably believes it’s necessary to
- prevent a client from committing a crime
or
- to prevent death/substantial bodily harm
When is a lawyer prohibited from making an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication?
When the statement will have a substantial likelihood of materially prejudicing an adjudicative proceeding
True or False:
A lawyer must not practice law with a nonlawyer if any of the activities of the partnership consist of the practice of law.
True
When does the Attorney-Client relationship begin?
When the prospective client meets with a lawyer to seek legal advice
A lawyer is prohibited from entering into a business transaction with a client, unless:
(1) The transaction/terms are fair and reasonable to the client and are fully disclosed in a way that can be reasonably understood by client
(2) The client is advised in writing of the desirability of seeking independent counsel and given a reasonable opportunity to do so, and
(3) The client gives informed consent in a signed writing.
A lawyer is prohibited from accepting payment for representation of a client from a third-party, unless what?
(1) The client gives informed consent
(2) There is no interference with lawyer’s independent professional judgment or the attorney-client relationship, and
(3) The duty of confidentiality is observed.
True or False:
A lawyer is not prohibited from using confidential information relating to the representation of a client to the client’s disadvantage when the client gives informed consent.
True
What is pro bono work?
Legal services provided for free (or at a discounted rate) by an attorney
What factors do courts look at to determine if a lawyer has the requisite knowledge and skill to represent a client?
(1) The matter’s complexity/specialty
(2) The lawyer’s general experience/training/field experience
(3) The preparation/study the lawyer will give to the matter, and
(4) The feasibility to refer matter or associate/consult with another lawyer established in the field.
True or False:
Time limitations on a case may not be considered in determining fee reasonableness.
FALSE: they may be considered
Generally, when is a lawyer permitted to communicate with unrepresented parties?
When the attorney doesn’t imply or state that they’re disinterested
What is required in a contingency fee agreement?
(1) they must be reduced to writing
(2) signed by client/attorney and
(3) clearly state what the fees are/how they’re earned
Are referral fees allowed in FL?
No, but splitting fees is allowed.
For example: Lawyer A takes a case to Lawyer B. They can work together and split fees accordingly. Lawyer A gets 10%
Lawyer B gets 90%.
*client should get statement of client’s rights
In what types of cases are contingency fees not allowed?
- criminal cases
- domestic cases
exception: suing to collect child support or alimony that’s owed
True or False:
There are contingency fee guidelines in the rules of professional conduct that need to be followed but can be rebutted.
True
Fiduciary Duties of Attorney to client
Duty of:
- Loyalty
- Confidentiality
- Diligence
- Competency in representation
*violation can lead to suspension/ disbarment
* be hyper-ethical
On an essay, how many people should you agree to represent in issues of conflicts of interest
You must be hyper-ethical and say you’d probably
only represent 1 of the potential clients
When can you represent 2 clients in a matter?
When lawyer reasonably believes that
- representation won’t adversely affect the clients’ interests
and - they get consent from each client after disclosure of the potential conflict.
True or False:
An attorney who has represented a client on a matter can’t later represent another in the same or substantially related matter in which that client’s interests are materially
adverse, unless the attorney first receives written informed consent from that past client.
true
Can an attorney use information gained in the representation of a past client to that client’s detriment or for the benefit of a new client?
No, unless the information in question is “generally known” to the public.
Rule for client fraud
- You can’t aid or abet your client to commit fraud or a criminal act
- If they persist, or if your services were used for that then you must withdraw!
Communication with Represented Persons
You can’t communicate with someone who is the subject of litigation and who you know is represented by counsel unless their attorney grants you permission to talk to them
Can you be an attorney in a case where your testimony is needed as a witness?
No
Solicitation
A lawyer can’t solicit professional employment from someone who they have no family/prior professional relationship with, when the significant motive is the lawyer’s pecuniary gain.
*30-day waiting period before written communications are permitted after an incident or injury
Can a lawyer accept property in return for services?
Yes, as long as it doesn’t involve a proprietary interest in the cause of action or subject of the litigation
but this can also violate the conflict of interest rule bc it may be a business
transaction between client and the lawyer
What are the exceptions to a lawyer being prohibited from entering to business transactions with clients?
(1) the terms are fair and reasonable and written in a way the client can understand
(2) the client is advised in writing to seek independent counsel and given a reasonable time to do so, and
(3) the client gives informed written consent of the essential including whether the attorney is representing the client in that transaction
*its ok for a court can grant a lien for lawyer to secure fees/expenses
Conditions to be met for a lawyer to accept fees from a third party
(1) written, informed consent from client
(2) the third party doesn’t interfere with the lawyer’s
representation of the client, and
(3) confidentiality isn’t compromised
Conflicts of interest
- An attorney who has represented a client in a past matter cant later represent another client in the same or substantially related matter in which the later client’s interests are materially adverse UNLESS, they get written informed consent from the first past client
Conflicts of interest regarding info learned from past client
An attorney can’t use info learned while representing a past client to their detriment or for the benefit of a new client
UNLESS that info is “generally known” to the public
When does a lawyer have a duty to report another lawyer’s violation of the Florida Rules of Professional Conduct?
When the violation raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness to practice law
True or False
A partner in a law firm must make reasonable efforts to ensure that lawyers and non-lawyers comply with the RPC.
True
A contingent fee agreement must be:
> in writing
> signed by the parties
It must also state the method by which the fee is to be determined, including what?
(1) The percentage the lawyer receives in the event of settlement/trial/appeal
(2) Expenses to be deducted from recovery, and
(3) Whether expenses will be deducted before or after the contingent fee is calculated.
What needs to be given to an insured client when they’re being represented by an attorney whose fees are paid by an insurance company?
Statement of Insured Client’s Rights
When is a lawyer allowed to negotiate for and attain the literary or media rights relating to the representation of a client?
After conclusion of all aspects of the matter that gave rise to the representation
What presumption is made if a lawyer notifies a client that she is leaving a firm and the client fails to advise the lawyer and firm of his decision regarding who is to provide him future legal services?
The client is presumed to remain with the firm until he states otherwise.
Fill in the blanks. A lawyer __________ not solicit professional employment from a prospective client in person, by telephone, or other electronic means when a significant motive for doing so is ___________________.
must; pecuniary gain
Lawyers can’t provide financial assistance to clients with respect to pending or contemplated litigation but may advance court costs and litigation expenses to clients.
What is considered good cause for an attorney to seek to avoid appointment of a client?
(1) The representation will likely result in violation of the RPC or other law
(2) The representation will likely result in an unreasonable financial burden on the lawyer
or
(3) The client or cause is so repugnant to the lawyer that their ability to represent client is likely to be impaired.
A lawyer has the authority to make most of the decisions relating to what?
The strategy and methods for achieving the client’s goals
