Florida Rules Professional Conduct Chapter 4 Flashcards
What governs ethics for family law attorneys?
Florida Rules of Professional Conduct and Bounds of Advocacy
Do Bounds of Advocacy govern all attorneys?
No, only family law attorneys and they are aspirational in nature and not mandatory.
Are Bounds of Advocacy enforeceable?
They are aspirational in nature and only enforceable to the extent you violate FRPC
Do the rules set forth in FRPC provide an exhaustive list of unethical conduct you can be penalized for?
No, it is not intended to be an exhaustive list for conduct that may be grounds for imposing discipline.
What chapter of FRPC govern professional conduct?
FRPC Chapter 4
What chapter of FRPC govern trust?
FRPC Chapter 5 governs rules regulating trust accounts.
When does a client-lawyer relationship begin?
Typically upon signing a retainer agreement BUT the test for determining the existence of a lawyer-client relationship is subjective and hinges upon a client’s belief that he/she is consulting the lawyer in that capacity and the intention is to seek professional legal advice.
What is the test to determine a client-lawyer relationship?
The test for determining the existence of a lawyer-client relationship is subjective and hinges upon a client’s belief that he/she is consulting the lawyer in that capacity and the intention is to seek professional legal advice.
What FRPC governs duties to prospective client?
FRPC 4-1.18
What is FRPC 4-1.18?
Rule that regulations duties to prospective clients
Who is a prospective client?
A person who consults an attorney about possibility of forming an attorney-client relationship
Is there any confidentiality with respect to a prospective client?
4-1.18(b) Yes, even when no client-attorney relationship ensues, the info a lawyer learned from prospective client may not use or reveal that information UNLESS FRPC 4-1.9 permits same.
What is FRPC 4-1.9?
The rule governing conflicts of interest for former clients.
Per FRPC 4-1.9, a lawyer who has formerly represented a client MUST not afterwards?
- Represent another person in the same or substantially related matter in which that person’s interest are materially adverse to interest of the former client UNLESS the former client gives informed consent;
- Use information relating to the representation to the disadvantage of the former client except as the rules would permit or require with respect to a client or when the information has become generally known; OR
- Reveal information relating to the representation except as the rules would permit or require with respect to a client
Can an attorney represent a client with interest materially adverse to a prospective client?
4-1.18(c) An attorney may not represent a client with interests materially adverse to those of a
prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be used to the disadvantage of that person in the matter, unless otherwise provided.
Are there circumstances in which a lawyer who has received disqualifying information by a prospective client be permitted to continue with representation?
Yes:
1. If the affected client and prospective give informed consent in writing;
2. The lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information reasonably necessary to determine whether to represent the prospective client AND
Disqualified lawyer is timely screen from any participation in the matter and is apportioned no part of the fee therefrom and written notice is promptly given to the prospective client
What rules governs confidentiality of information?
FRPC 4-1.6
What rule governs whether a lawyer can reveal information related to representation?
Yes, see 4-1.6 - confidentiality of information.
When MUST a lawyer reveal confidential information?
If lawyer reasonably believes is necessary to prevent a client from committing a crime
To prevent death
To prevent substantial bodily harm to another
See FRPC 4-1.6(b)
When MAY a lawyer reveal confidential information?
If lawyer reasonably believes:
- It is necessary to serve client’s interest unless client specifically says no
- To establish a claim or defense on behalf of the lawyer in a controversy between lawyer and client
- To establish a defense to a criminal charge or civil claim against lawyer based on client’s conduct
- To respond to allegations in any proceeding concerning lawyer’s representation of client
- To comply with Rules Regulating The Florida Bar
- To detect and resolve conflicts of interest between lawyers in different firms arising from lawyer’s change of employment or from changes in composition of ownership of a firm but only if the revealed info would not compromise the attorney-client privilege or otherwise prejudice the client
See FRPC 4-1.6(c)
If a tribunal requires disclosure of confidential information, must lawyer reveal?
Yes, but not until lawyer has exhausted all appellate remedies first. See FRPC 4-1.6(d)
When disclosure is mandated or permitted, can lawyer disclose everything?
4-1.6(f) No, only disclose what is necessary to meet the requirements of info requested
Which rule governs inadvertent disclosure of privileged materials?
Fla. Fam. L. R.P. 12.281
What happens if lawyer accidentally inadvertently discloses privileged material?
Within 10 days of actually discovering the inadvertent disclosure:
- the attorney must serve written notice asserting privilege upon the receiving party
- the notice must specify with particularity the materials that are being claimed as privilege, the nature of the privilege asserted and the date on which the inadvertent disclosure was actually discovered
What does a lawyer do when they receive notice of an assertion of privileged information being inadvertently disclosed?
- Promptly return the info
- Sequester the info
- Destroy the info
AND
- Notify any other party who has received the disclosed materials that the notice was served and the effects of rule 12.281
AND
- Take reasonable steps to retrieve the material disclosed
Is there any FRPC that requires a lawyer to take action if they receive info inadvertently disclosed?
Yes - FRPC 4-4.4(b) states that if a lawyer knew or should have reasonable known that a info was inadvertently disclosed, they must promptly notify the sender.
What is FRPC 4-4.4(b)?
“A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows
or reasonably should know that the document or electronically stored information was inadvertently sent must promptly notify the sender”
If a lawyer receives notice that privileged info was inadvertently disclosed, do they have the right to challenge the assertion of privilege?
Yes - see Fla. Fam. L. R. P. 12.281(c)
What are the grounds for a lawyer to challenge the assertion of privilege info inadvertently disclosed?
Grounds for the challenge may include, but are not limited to:
1. materials are not privilege
2. Disclosing party lacks standing to assert privilege
3. Disclosing party failed to timely file notice under this rule
4. Circumstances surrounding the production or disclosure of materials warrant a finding that the disclosing party waived its assertion that the material is protective by a privilege
See Fla. Fam. L. R. P. 12.281(c)
When must a challenge to assertion of privilege for inadvertent disclosure be made?
Notice of challenge must be served within 20 days of serving of original notice given by disclosing side. Fla. Fam. L. R.P. 12.281(c)
What happens if a lawyer fails to file notice of challenge of privilege of inadvertent disclosure within 20 days of being served with notice by disclosing side?
You waive the right to challenge.
If a lawyer inadvertently discloses material, how many days do they have to file a notice?
10 days from the date they actually discovered the inadvertent disclosure Fla.Fam.L.R.P. 12.281(a)
What happens to inadvertently disclosed material that a Court determines IS privilege info?
12.281(d) - If an order is entered deeming the disclosed material privileged, Court must direct what is to be done with the materials and any copies as to preserve all rights of appellate review.
If Court determines that inadvertently disclosed material is privileged, does recipient attorney have to do anything further?
12.281(c) requires a lawyer to give prompt notice to any other person who received the material of the Court’s ruling.
If the Court determines inadvertently disclosed material is NOT privileged or it’s been waived, what happens to the docs?
12.281(d) requires the Court to give guidance as to what is to happen with the material for purposes of appeals.
Once a lawyer who knows or reasonable should know that they received inadvertently disclosed info notifies the sender, does the recipient lawyer have to take any further steps at that point?
At that point, the burden is on the sender to take further action and the recipient attorney is relieved that point.
Is the rule on attorney-client privilege an ethical obligation?
No, it’s actually an evidentiary principle.
What is the purpose of the attorney-client privilege?
To protect confidential communications between lawyer and client sought to be used as evidence in any legal proceeding.
What is the “goal” of the attorney-client privilege according to the US and FL Supreme Courts?
To encourage full disclosure between clients and lawyers.
In an attorney-client relationship, who holds the privilege?
Client.
Who has the right to waive attorney-client privilege?
Only the client.
Is the attorney-client privilege waived by the presence of a 3rd party?
It MAY be waived unless the presence of the 3rd party is necessary for the communication such as an interpreter, messenger or any other agent of transmission.
If client has a 3rd party at a meeting with attorney, can that 3rd party be forced to testify as to the contents of the communication in that meeting between client and lawyer?
Yes!
What is the expectation of communication between lawyer and client?
“Reasonable communication between the lawyer and the client is necessary for the client to effectively participate in the representation.
What rule governs communication with clients?
FRPC 4-1.4
When informing client of status of representation, what MUST a lawyer do?
4-1.4(a)
1. Promptly inform the client of any decision or circumstance with respect to client’s informed consent;
- reasonably consult with the client about means to accomplished client objectives
- Keep client reasonably informed as to status
- Consult with client about relevant limitation on lawyer’s conduct when lawyer knows or should know that client expects lawyer to do things inconsistent with rules of professional conduct or the law.
Is a lawyer obligated to explain matters to a client?
YES! See FRPC 4-1.4(b) - lawyer SHALL explain a matter to the extent reasonably necessary to permit the client to make informed decisions
Is a lawyer in violation of any FRPC for failure to timely respond to a client?
Yes! It’s a violation of 4-1.4(a)(4) which requires lawyer to “promptly comply with reasonable request for information”
What is the purpose of 4-3.3 Candor toward the tribunal?
The purpose is to set forth the special duties of lawyers as officers of the court to avoid conduct that undermines the integrity of the adjudicative process
With respect to false evidence and duty to disclose, a lawyer shall NOT do the following:
4-3.3(a)
1. make a false statement of fact or law to tribunal OR fail to correct a false statement of material fact or law previously made to tribunal by lawyer
- fail to disclose material fact to tribunal when disclosure is necessary to avoid assisting client in criminal or fraudulent act
- fail to disclose legal authority in controlling jurisdiction known to lawyer to be directly adverse to client and not disclosed by your oc
- offer evidence lawyer knows to be false
What must a lawyer do if client or witness offers material evidence lawyer knows to be false?
Lawyer shall take reasonable remedial measures, including disclosure to tribunal.
Can a lawyer refuse to offer evidence they think is false?
If lawyer reasonably believe it’s false, they can refuse to offer it.
What must lawyer do if client in an adjudicative proceeding intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding?
Lawyer must take reasonable remedial measures, including disclosure to court if necessary.
What is a lawyer’s obligation to court in an ex parte proceeding?
4-3.3(c) A lawyer shall inform tribunal of all material facts known to lawyer that will enable tribunal whether or not the facts are adverse
How long is a lawyer’s duty to a client in effect?
Duty continues beyond conclusion of the proceeding and apply even if compliance requires disclosure of info otherwise protected by 4-1.6
What should lawyer do first if they are aware client intends to offer false testimony?
Must first counsel client to not life.
What happens if client says they want to proceed with providing false testimony or evidence to court even after you counseled them not to?
Lawyer must not offer the false testimony / evidence and should seek to withdraw from representation.
What happens if you withdraw from case to avoid allowing your client to lie to the Court and your withdrawal will not prevent the fraud?
4-3.3(d) Lawyer must disclose the fraud to the court & then court must decide what must be done.
What should a lawyer do if a client repeatedly states they will commit perjury?
Lawyer must not only withdraw but also disclose to the Court the client’s intention to lie under oath. It is necessary that a lawyer both withdraw AND disclose to prevent false testimony.
Why is it so important for a lawyer to not allow a client or former client to lie?
Courts are dependent on members of the bar to enable the judge to decide the facts or law and when a lawyer allows false testimony they make it impossible for the scales of justice to balance.
Pursuant to FRPC 4-3.4 fairness to opposing counsel and party, what shall a lawyer NOT do:
- unlawfully obstruct a party’s access to evidence or unlawfully alter, destroy or conceal a document or other material the lawyer knows or reasonably should know is relevant pending or reasonably foreseeable proceeding
- cannot assist a person to do such act
- fabricate evidence or assist a witness to testify falsely
- knowingly disobey an obligation under the rules of a tribunal
- make frivolous discovery request or intentionally fail to comply with legally proper discovery by oc
- in trial - cannot state personal opinion about credibility, allude to any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts, state personal opinion as to justness of a cause, the culpability of a civil litigant or guilt or innocence of accused
- request a person other than client from voluntarily giving relevant info to another party unless the person is a relative or employee or agent or a client and it is reasonable to believe person’s interest will not be adversely affected by refraining from giving such info
- threaten to present criminal charges solely to obtain advantage in civil matter
- threaten disciplinary charges under rules solely to obtain advantage in civil matter
Is it permissible for a lawyer to pay a witness?
A lawyer cannot pay witnesses but lawyer can witness reasonable expenses incurred by the witness in attending or testifying at
proceedings; a reasonable, noncontingent fee for professional services of
an expert witness; and reasonable compensation to a witness for the time
spent preparing for, attending, or testifying at proceedings;
Does the client have the right to reject an exceptional settlement offer?
Yes. FRPC 4-1.2(a) , a lawyer must abide by a client’s decision whether to settle a matter. The authority to reject a settlement offer, even if unwise, is that solely of the client. The mere employment of a lawyer does not grant them the authority to accept a settlement on behalf of the client against their wishes.
Is a lawyer’s representation of a client an endorsement of client views or activities?
Of course not. See FRPC 4-1.2(b) “A lawyer’s
representation of a client, including representation by appointment, does
not constitute an endorsement of the client’s political, economic, social, or
moral views or activities.”
Can lawyer limit the scope of representation?
Yes. See FRPC 4-1.2(c) a lawyer and client may agree to limit the
objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing.
If lawyer and client agree to a limited representation, what is the lawyer obligated to let client know?
Advise the client regarding applicability of the rule prohibiting communication with a represented person
A lawyer obviously shall not counsel a client to engage or assist a client in conduct the lawyer knows or reasonably knows is criminal or fraudulent - what is the exception to this rule 4-1.2?
4-1.2(d) A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.
Does a client have the right to negotiate their own deal without their attorney?
Yes.
What has been the biggest issue with client’s negotiating their own deal without their lawyer?
Almost all case law on this issue is the impact a client negotiating their own deal has on attorney’s fees. Courts concern is clients in bad faith settle cases without lawyers in order to deprive lawyer of their fees. When a client negotiates their own settlement, courts will look to whether client’s action was to defraud their own lawyer.
When is there a conflict between a prospective client and a client?
When prospective client and current client’s interest are materially adverse in the same or substantially related matter
If a lawyer is disqualified based on prospective client, does the disqualification extend to members of the firm?
Yes.
If lawyer has acquired disqualifying info, can lawyer still represent?
Yes but only if
1. current and prospective client provide written informed consent
OR
- lawyer took reasonable steps to avoid more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and
timely screened and receives no fees from the matter and
promptly provides prospective client with written notice
Can a family law attorney represent both parties?
NO - this violates section 4.1 of bounds of advocacy bc it prevents a lawyer from given impartial advice to both parties. Fl Bar Ethics opinion also disapproves of dual representation.
A lawyer who previously represented a client must not afterwards do what?
- Represent another person in the same or substantially related matter in which that person’s interest are materially adverse to the interest of the former client unless former client gives informed consent
- use information relating to the representation to the disadvantage of the former client unless rules provides otherwise or when info becomes generally known
- reveal info relating to representation except as rules permit
Lawyer represents husband and wife in a business transaction and then the Husband subsequently seeks lawyer representation in divorce. Can lawyer represent H in divorce?
NO - this would violate FRPC 4-1.9 because the business was a marital asset and therefore it is “substantially related” to the divorce within the scope of the rule.
Is lawyer misconduct limited to scope of representation?
NO - “[a] lawyer shall not . . . engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the interests of the client or the lawyer-client relationship.”
What is the presumption if sexual relationship commences after client-lawyer relationship formed?
It is presumed that the sexual conduct exploits or adversely affects the interests of the client or the lawyer-client relationship.
If the sexual conduct commenced after the lawyer-client relationship was formed it shall be presumed that the sexual conduct exploits or adversely affects the interests of the client or the lawyer-client relationship. Can that presumption be rebutted?
This presumption is rebuttable by a preponderance of the evidence that the sexual relationship did not in fact adversely affect the interests of the client or the lawyer-client relationship.
Is another member of a law firm precluded from engaging in sexual relationship with another lawyer’s client?
No - so long as the lawyer is not providing any legal services to the client and is screened from the case.
Do the Fla. Fam. L. R. P. permit lawyers to limit their scope of representation?
Yes - 12.040 provides that an attorney of record for a party, shall be the attorney of record throughout the same family law matter, UNLESS at the time of appearance the attorney files a notice, SIGNED BY THE PARTY, specifically limiting the attorney’s appearance only to the particular proceeding or matter in which the attorney appears.
If lawyer doesn’t file a notice of limited appearance, can they, after becoming attorney of record, limit their appearance?
Yes - can file a motion to limit appearance but must set forth the reason and serve on client and interested persons.
What must a notice of limited appearance include?
It shall include the name, address, e-mail address(es), and telephone number of the attorney and the name, address, and telephone number of the party.
What is the scope of representation for an attorney who filed a limited notice of appearance?
If an attorney appears of record for a particular limited proceeding or matter, that attorney shall be deemed attorney of record for only that particular proceeding or matter. The attorney need only to file termination of limited appearance and include the names and last known addresses of persons represented by withdrawing attorney.
What is the scope of a lawyer’s representation?
An attorney shall remain attorney of record until such time the court enters an order.
Does attorney with limited notice of appearance need to seek leave of court to file notice of termination of limited appearance?
No.
What does an attorney for the State’s Title IC-D child support enforcement agency’s notice of representation have to include?
The notice must state that the IV-D attorney may only address issues concerning determination of paternity, and establishment, modification, and enforcement of support obligations. The notice may be incorporated into a pleading, motion, or other document filed with the court when the attorney first appears.
Can lawyers assist pro se litigants with preparation and filing of pleadings?
Yes - but the document must certify that the party has received assistance from an attorney.
If you filed a notice of limited appearance, what must all pleadings or docs filed with the court include?
Any pleading or other document filed by a limited appearance attorney shall state in bold type on the signature page of that pleading or other document: “Attorney for [Petitioner] /[Respondent] [attorney’s address, e-mail address(es), and telephone number] for the limited purpose of [matter or proceeding]” to be followed by the name of the petitioner or respondent represented and the current address and telephone number of that party. If the party designates e-mail address(es) for service on and by that party, the party’s e-mail address(es) shall also be included.
Who must be served when attorney files notice of limited appearance?
During limited appearance, all pleadings or other documents and all notices of hearing shall be served upon BOTH the attorney and the party. I
What should lawyer do if they receive notice of hearing that goes outside scope of limited representation?
The attorney shall notify the court and the opposing party that the attorney will not attend the court proceeding or hearing because it is outside the scope of the representation
What must lawyer obtain from client if they agree to limited appearance/representation?
Client must give informed consent in writing AND lawyer must advise the client regarding applicability of the rule prohibiting communication with a represented person
What must lawyer consider in determining if he / she can represent client on a limited basis?
The limitation must not prevent the lawyers ability to provide competent legal advice.
When will limited representation be deemed unreasonable?
When lawyer is prevented from providing competent legal advice.
If lawyer assists a pro se litigant with drafting a pleading, are they required to sign it?
No, but the pleading must state that it was prepared with the assistance of counsel.
When MUST a lawyer decline or terminate representation?
- representation would violate FRPC
- Lawyer’s physical or mental condition materially impairs lawyer’s ability to represent the client;
- lawyer is discharged;
- client persist in course of action involving lawyer’s service that lawyer reasonably believes is criminal or fraudulent UNLESS client agrees to disclose & rectify the crime or fraud
- Client has used the lawyer’s service to perpetrate a crime or fraud unless client agrees to disclose and rectify the crime or fraud
Must lawyer always withdraw if lawyer reasonably believes client involving lawyer’s service that lawyer reasonable believes is criminal or fraudulent?
No - not if client agrees to disclose & rectify the crime or fraud
When MAY a lawyer withdraw?
- when withdrawal can be accomplished without material adverse effect on the interests of the client
2.the client insists upon taking action that the lawyer considers
repugnant, imprudent, or with which the lawyer has a fundamental
disagreement
- client fails substantially to fulfill an obligation to the lawyer
regarding the lawyer’s services and has been given reasonable warning
that the lawyer will withdraw unless the obligation is fulfilled
4.the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the
client
- other good cause for withdrawal exists
What is lawyers obligation upon withdrawing from case?
A lawyer shall take steps to the extent reasonably practicable to protect a client’s interest, such as -
-giving reasonable notice to
the client,
-allowing time for employment of other counsel
-surrendering papers and property to which the client is entitled, and refunding any advance payment of fee or expense that has not been earned or incurred.
-The lawyer may retain papers and other property relating to or belonging to the client to the extent permitted by law
What is a retainer
A sum of money paid to lawyer to guarantee future services
What must lawyer do if charging a nonrefundable fee?
A fee for legal services that is nonrefundable in any part must be confirmed in writing and must explain the intent of the parties as to the nature and amount of the nonrefundable fee. See FRPC 4-1.5(e)
What must the lawyer communicate to client for nonrefundable fees?
The client doesn’t need to sign a doc stating terms of nonrefundable fee just a letter describing the basis or rate of the fee and the intent of the parties as to the nonrefundable fee.
When will a nonrefundable fee be deemed excessive?
A fee may be clearly excessive where it has not been earned, but nonetheless, is nonrefundable
In a Florida Bar Ethics Opinion, why was a lawyer’s nonrefundable fee deemed excessive?
A nonrefundable fee is excessive where “the lawyer performs no legal services, obtains no benefits for the client, and has not lost other employment opportunities as a result of agreeing to represent the client.
Is unit billing a violation in Florida?
Yes - Florida courts have consistently held unit billing to be a practice in violation of FRPC4-1.5.
What is unit billing?
Unit billing is a practice whereby a lawyer charges a prescribed amount of time for a particular task, without regard to the amount of time actually incurred (e.g. consistently billing 0.1 for receipt of a Notice of Hearing even if the lawyer merely glanced at it for five seconds).
Does FRPC require fees to be reasonable?
Yes - see FRPC 4.1-5(a)
When is a fee or cost deemed clearly excessive?
- after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the attorney; or
2.the fee or cost is sought or secured by the attorney by means of intentional misrepresentation or fraud upon the client, a nonclient party, or any court, as to either entitlement to, or amount of, the fee.
What factors are considered in determining if a reasonable fee?
- the time and labor required, the novelty, complexity, difficulty of the questions involved, and the skill requisite to perform the legal service properly
2.the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer
3.the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature
- the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained
5.the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client
6.the nature and length of the professional relationship with the client
7.the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and
8.whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation
When will costs be presumed reasonable?
When the parties have a written contract in which the method is established for charging costs, the costs charged under that contract will be presumed reasonable
Can a lawyer charge interest on fees?
Yes
When can a lawyer charge interest on fees?
Lawyers may charge a lawful rate of interest on liquidated fees and costs either as provided in advance by written agreement or upon reasonable notice
What is determined to be reasonable notice in the context of a lawyer charging interest on fees?
reasonable notice has been found to be six days.
Can lawyer charged interest on interest for fees?
No
Can a lawyer accept payment of fees and costs from a 3rd party?
Yes
In order to accept payment for fees and costs from a 3rd party, what must lawyer do?
- the client gives informed consent
- there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship;
- information relating to representation of a client is protected as required by rule 4-1.6.
What is the biggest concern in accepting payment of fees and costs from a third party?
The payment cannot impact the relationship between the lawyer and client.
Does payment of fees and costs by a 3rd party create a conflict of interest?
Yes - see FRPC 4-1.7(a)(2) - the rule provides that a lawyer must not represent a client if “there is a substantial risk that the representation . . . will be materially limited by the lawyer’s responsibilities to . . . a third person or by a personal interest of the lawyer.” However, such potential conflict may be waived by written informed consent by the client
What is a charging lien
An equitable right to have costs and fees due to an attorney for services in the suit secured to him in the judgement or recovery in that particular suit
What is required to impose a charging lien?
- an expressed or implied contract between the lawyer and client
- an expressed or implied understanding between the lawyer and client that payment is either dependent upon recovery or will come from the recovery
- an attempt to avoid the payment of fees or a dispute surrounding the amount of fees, and
- timely notice of the charging lien to the client
What must lawyer prove to success in claim for charging lien?
It is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services
If client negotiates their own deal and cuts lawyer fees out of the deal, is intent necessary to prevail?
No - settlement without notice and payment to a party’s lawyer is a fraud on them whether there was an intent to do so or not.
Can a person other than your client be liable for charging lien?
Yes, a party with knowledge of a charging lien and their lawyer may be jointly and severally liable for fees incurred by a lawyer seeking to enforce a charging lien.
Can you be found in violation of FRCP for not expediting an action?
YES - FRPC 4-3.2 provides that a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Do lawyers have an obligation to act professionally?
Yes - lawyers must not conduct themselves in a manner that is prejudicial to the administration of justice. See 4-8.4(d)
What is FRPC 4-8.4(c)
A lawyer shall not: engage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic
Every documented of a party represented shall be:
- signed by at least 1attorney of record in that attorney’s individual name with their current FL Bar address, telephone number, including area code, primary e-mail address and secondary e-mail addresses, if any, and Florida Bar number shall be stated.
An attorney’s signature to a filed doc shall constitute:
Certificate by the attorney that:
1. the attorney has read the document
2.to the best of the attorney’s knowledge, information, and belief there is good ground to support the document
3.the document is not interposed for delay; and
- the document contains no confidential or sensitive information, or that any such confidential or sensitive information has been properly protected by complying with the provisions of rules 2.420 and 2.425
What happens if a document is filed but not signed by attorney?
It can be stricken by the court
Can you recover fees if a document is signed by lawyer with intent to defeat rule requiring lawyer to sign docs?
Only if court specifically finds bad faith in failing to sign
What rule requires lawyers with supervisory authority to make sure other lawyers under supervision conform with rules of professional conduct?
FRPC 4-5.1
When will a lawyer be responsible for another lawyer’s violation of the Rules of Professional Conduct?
- the lawyer orders the specific conduct or, with knowledge thereof, ratifies the conduct involved; or(
- the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
Which rule governs lawyers obligation to communicate with their client?
FRPC 4-1.4(a)
What is lawyer’s duty to respond to Bar Inquiries?
A lawyer shall not fail to respond in writing to any official inquiry by bar counsel or a disciplinary agency, as defined elsewhere in these rules, when bar counsel or the agency is conducting an investigation into the lawyer’s conduct.
If Bar makes an inquiries, when shall written response be made?
- within 15 days of the date of the initial written investigative inquiry by bar counsel, grievance committee, or board of governors
2.within 10 days of the date of any follow-up written investigative inquiries by bar counsel, grievance committee, or board of governors
- within the time stated in any subpoena issued under these Rules Regulating The Florida Bar (without additional time allowed for mailing)
- as provided in the Florida Rules of Civil Procedure or order of the referee in matters assigned to a referee; and
- as provided in the Florida Rules of Appellate Procedure or order of the Supreme Court of Florida for matters pending action by that court
Can the timing for which a response is due for a bar inquiry be extended?
The Florida Bar and may be extended or shortened by bar counsel or the disciplinary agency making the official inquiry upon good cause shown.
What happens if you fail to respond to an official inquiry with no good cause?
Lawyer may be cited for contempt
When MUST a lawyer report another lawyer’s violation of the ethics rules?
Under FRPC 4-8.3, a lawyer must report another lawyer’s violation of the ethical rules that “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.”
What is the exception to the rule mandating a lawyer to report another lawyer’s violation of ethics rules?
Conduct need not be reported when it is either information protected by confidentiality rules or while participating in an approved lawyers’ assistance program.
