Florida PR Flashcards
What are some actions that will subject an attorney to discipline?
- violating, attempting to violate, or assisting another to violate RPC
- failing to disclose info on bar application
- refusing to cooperate w/ disciplinary investigation
- committing criminal act that reflects badly on att’s (1) honesty, (2) truthfulness, or (3) fitness as atty
- intentionally engaging in conduct involving (1) dishonesty, (2) fraud, (3) deceit, or (4) misrepresentation
- engaging in conduct in connection w/ practice of law that is prejudicial to administration of justice
- wilfully refusing to pay child support
- assisting judge to violate rules
- stating or implying ability to improperly influence
- sex w/ client
When MUST an atty report misconduct of another atty?
- atty knows that another attorney has violated RPC
- violation raise a SUBSTANTIAL QUESTION as to that atty’s honesty, trustworthiness, or fitness as atty
When is disclosure NOT required even when the atty’s misconduct raises a substantial question?
- information is protected by atty’s duty of confidentiality (client is another atty)
- atty gained info while working at an approve att’s assistance program that helps atty’s & judges deal w/ substance abuse
- atty gained information while working as mediator or participating in mediation
If an atty is NOT licensed in FL, what CAN’T they do?
- advertise
- establish office
- otherwise hold out to public that they are licensed in FL
When can out-of-state atty’s practice in FL temporarily?
- atty associates w/ FL licensed atty who actively participates
- services are reasonably related to a potential or pending case where atty has “pro hac vice” admission (or expects to get it)
- services performed for client who lives or has an office in state where atty licensed (pro have NOT required)
- temporary practice reasonably related to atty’s home state practice (pro hac NOT required)
When can a out-of-state or foreign atty provide legal services through an office or other systematic & continuous presence in FL?
- atty NOT disbarred or suspended; AND
- atty authorized by federal or local law to practice a restricted branch of law OR atty authorized in-house counsel for an organization
Can an atty enter into a partnership w/ a nonlawyer?
Yes
- if none of the organizations activities will consist of the practice of law
When is an atty subject to discipline for another atty’s disciplinary violation?
If the attorney:
1. ordered the 2nd atty’s misconduct
2. knew about 2nd atty’s misconduct & ratified
3. was partner or manager or had direct supervisory responsibility over 2nd atty, & they knew about misconduct at a time when its consequences could have been avoided or mitigated & failed to take action
What factors do you consider when determining what a reasonable fee is?
- fixed or contingent fee
- customary fee in the community
- time & amount of work
- experience & reputation of atty
How must an attorney communicate their fee to a client?
Must communicate the basis or rate of fee
- perferably in writing or within a reasonable time after commencing representation
NONrefundable fee MUST be in writing
If an attorney wants to collect on a contingency fee basis what must be done?
- must be in writing & signed by client & atty
- include method for fee determination, including % for settlement, trial, & appeal
- must include that contract can be cancelled by client by written notice at any time w/ 3 days of execution
- at the end of representation, a written statement including outcome, distribution to client, and itemization of cost
An attorney must NOT enter into an agreement to charge or collect what types of fees?
- a fee that is clearly excessive or illegal; OR
- a fee generated through employment based on violating the advertising or solicitation rules
What types of cases can’t use a contingency fee agreement?
- domestic relations cases - fee contingent on getting divroce, or certain alimony, or child support, or property settlement
- defending client in criminal case
CAN use contigency in collection cases
Explain the cap on contingency fee cases in personal injury cases
- Recovery BEFORE D’s answer filed OR D admits liability = 1st million - 33 1/3%
- Recovery AFTER D’s answer filed AND D hasn’t admitted liability = 1st million - 40%
Is fee splitting allowed in FL?
YES, as long as:
1. total fee is reasonable; AND
2. amount is divided by amount of work done by each atty; OR
3. there is a written agreement w/ client for joint representation setting out division in fee (cannot split fee w/ non-atty)
NOT for personal injury, property damage, or death/loss of services
When the case is for personal injury, property damage, or death/loss of services resulting from PI, how are fees split (if 2 atty’s working on case?)
- atty who assumes PRIMARY responsibility receives 75% or more of total fee
- atty who assumes SECONDARY responsbility must NOT receive more than 25% of fee
if atty roles SUBSTANTIALLY EQUAL they can apply to ct for authorization
Are referral fees allowed in FL?
NO!
When can an atty avoid appointment by tribunal?
Only if they show GOOD CAUSE – examples include:
1. representation likely to lead to violation of RPC or law
2. representation likely to result in an unreasonable financial burden on atty
3. client or cause repugnant to atty & likely to impair atty-client relationship or atty ability
When can an atty & client agree to limit the objectives or scope of representation?
- not prohibited by law
- limitation reasonable
- client gives informed consent in writing
What are some duties an atty has to their client?
- duty of competence
- duty of diligence
- duty of communication
- duty of confidentiality
- duty to protect clients property
List the instances where an atty is REQUIRED to disclose confidential information & when it’s permissive
MANDATORY:
1. client will commit crime OR cause death/great bodily harm (disclose what is reasonably necessary)
PERMISSIVE:
1. client consents to waiver of confidentiality
2. establish defense/claim in controversy w/ client or crime
3. resolve conflict of interest
4. info becomes generally known
Can an atty place their own money into a client trust account?
NO!
- UNLESS it is to cover bank service charges
A record of the client’s trust account must be kept by attorney for how long?
6 years after representation ends
When MUST an attorney decline to take on representation or MUST withdraw from representation?
- representation will result in violation of RPC or law
- atty discharged/fired
- atty’s physical or mental condition impairs ability to represent
- client persists in course of action involving atty’s services that atty reasonably believes is criminal or fraudulent (unless client agrees to disclose & rectify)
- client used atty’s services to perpetrate fraud or crime
Generally, an attorney may NOT represent a client if…
1 - interests are directly adverse to another client
OR
2 - substantial risk that representation of 1 or more clients will be materially limited by the atty’s responsibilities to another or former client or 3rd person
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An atty can still represent if:
1. atty reasonably believes that they can provide diligent & competent representation
2. representation NOT prohibited by law
3. positions not directly adverse in the same proceeding, and
4. both parties give informed consent in writing or on the record
When can an attorney enter a business transaction w/ a client or take financial interest adverse to client?
- deal is fair & reasonable
- deal is fully disclosed in writing, AND
- client consents in writing after reasonable opportunity to seek outside counsel advice
When dealing w/ gifts from clients, what CAN’T attorney’s do?
- solicit a gift from a client for the attorney or attorney’s relative
- prepare an instrument on bhealf of client giving a gift to atty or atty’s relative (will)
this does NOT apply if client related to recipient of gift
Can an atty acquire literary or media rights to a story based in substantial part on information relating to attorney’s representation of a client?
NO!
- UNLESS legal matter is entirely completed (appeal and all)
When is a lawyer NOT prohibited from acquiring a proprietary interest in the cause of action or subject matter of the litigation?
- to get a lien for fees or expenses; AND
- a contract for reasonable contingent fee
Can an attorney provide financial assistance to a client, in connection w/ pending or completed litigation?
NO! Unless one of the following circumstances:
1. atty may advance costs & litigation expenses & repayment contingent on outcome of the case; OR
2. client indigent - atty may pay court costs & litigation expenses outright
An attorney who has represented a client in a matter previously, CANNOT do what?
situations
- represent another client in same or substantially related matter where the clients’ interests are materially adverse to the interest of the former client, unless former client gives consent; OR
- use info related to the representation of the former client to their disadvantage unless allowed by the rules of confidentiality or when the information has become generally known
When can an attorney prospectively limit malpractice liability?
- it’s permitted by law; AND
- client is independently represented in making agreement
When can an attorney settle an existing malpractice claim?
Only if attorney advises client in WRITING that independent representation is appropriate in making agreement
When can an attorney accept compensation for a client from a 3rd party?
- informed consent from client
- info remains confidential
- no interference w/ client relationship or independent professional judgment
When an attorney leaves a firm & takes a client, the old firm can represent another w/ interest materially adverse to the former client UNLESS…
- same/substantially related matter; AND
- firm/atty remaining has confidential information about former client
When is a conflict of interest of one attorney in a firm NOT imputed to the rest of the firm?
- the prohibition is based on personal interest of the prohibited lawyer; AND
- it does NOT present a significant risk of materially limiting the representation of the client by other attorney’s in the firm
When are 2 matters “substantially related”?
- they involve same transaction or legal dispute; OR
- current matter would involve the atty attacking their own work for former client
An attorney must NOT represent a new client who’s interests are “what?” to a former client?
New clients interest are MATERIALLY ADVERSE to former client interests in a matter that is the SAME or SUBSTANTIALLY RELATED matter
An attorney who left government service for private practice, may NOT represent new private client in what types of matters?
Matters in which attorney participated PERSONALLY and SUBSTANTIALLY while in government service
- UNLESS government agency gives informed consent in writing
When must an attorney disclose to tribunal opposing/hurtful legal authority?
- case in controlling jurisdiction
- directly adverse to clients position
- opposing counsel did not disclose
When can an attorney advise a person to refraim from voluntarily giving information to an opponent or other party?
- person is client, or client’s relative, employee, or agent; AND
- attorney reasonably believes that the person’s interest will NOT be harmed by not volunteering info
What must every Ad include?
- name of at least 1 atty or name of firm
- city, county, or town where at least one office is located
- if case to be referred, must state so
Does an ad need to be approved by FL bar?
YES!
- must file a copy of ad w/ FL bar at least 20 days prior to ad being released
Can an attorney claim they are specialist or expert?
NO! Unless they are:
1. certified under ABA or FL-accredited certification plan; OR
2. attorney can objectively verify claim based on their education, training, or substantial involvement in the area
Can an attorney solicit professional employment from prospective client?
NO! If the atty:
1. has NO family or prior professional relationship; AND
2. a significant motive of atty is for pecuniary gain
What does solicitation include?
Contact:
1. in person
2. by telephone
3. by real time face to face electronic communication
What is “unprofessional conduct” by an attorney?
SUBSTANTIAL or REPEATED violations of:
1. bar rules
2. oath of admission to FL bar
3. FL Bar Creed of professionalism
4. FL Bar Professionalism Expectations
5. Decisions of FLSC
If an attorney advertises a fee, how long must they honor it?
at least 90 days
