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.
When may a lawyer be required to report a judge
where the judge has acted in such a way that raises a substantial question as to their fitness for office.
What is the analysis in determining proper sanctions for lawyer misconduct?
- What ethical duty did the lawyer violate? (A duty to a client, the public, the legal system, or as a professional?)
- What was the lawyer’s mental state? (Did the lawyer act intentionally, knowingly, or negligently
- What was the extent of the actual or potential injury caused by the lawyer’s misconduct? (Was there a serious or potentially serious injury?) and
- Are there any aggravating or mitigating circumstances
In determining the nature of ethical duty violation, what is the most ethical duty?
obligations which a lawyer owes to clients
When is admonishment an appropriate sanction?
Admonishment is the appropriate sanction when a lawyer is negligent and fails to act with reasonable diligence in representing a client and causes little or no actual or potential injury to a client.
When is public reprimand an appropriate sanction?
Public reprimand is the appropriate sanction when a lawyer is negligent and fails to act with reasonable diligence in representing a client and causes injury or potential injury to a client.
When is suspension an appropriate sanction?
Suspension is the appropriate sanction when a lawyer
(a) knowingly fails to perform services for a client or engages in a pattern of neglect and
(b) causes injury or potential injury to a client
When is disbarment an appropriate sanction?
Disbarment is the appropriate sanction when a lawyer
(a) abandons his or her law practice or knowingly fails to perform services or engages in a pattern of neglect and
(b) causes serious or potentially serious injury to a client.
In determining a proper sanction, what three principles will the court also considered?
- The judgment must be fair to society, both in terms of protecting the public from unethical conduct and at the same time not denying the public the services of a qualified lawyer as a result of undue harshness in imposing penalty
2.The judgment must be fair to the respondent, being sufficient to punish a breach of ethics and at the same time encourage reformation and rehabilitation
3.The judgment must be severe enough to deter others who might be prone or tempted to become involved in like violations
What can a lawyer do if client leaves negative online review?
Lawyer may not disclose information relating to a client’s representation in response to a negative online review but may respond with a general statement that the lawyer is not permitted to respond as the lawyer would wish, but that the online review is neither fair nor accurate
In accepting web based payments, what must lawyer ensure?
steps are taken to protect against inadvertent or unwanted disclosure of information regarding the transaction and to safeguard funds of clients and third persons that are entrusted to the lawyer.
In order to accept web based payments, what conditions must be met?
1.The lawyer must take reasonable steps to prevent the inadvertent or unwanted disclosure of information regarding the transaction to parties other than the lawyer and the client or third person making the payment
2.If the funds are the property of a client or third person (such as advances for costs and fees and escrow deposits), the lawyer must direct the payor to an account with the service that is used only to receive such funds and must arrange for the prompt transfer of those funds to the lawyer’s trust account at an eligible banking or credit institution, whether through a direct link to the trust account if available, through a suspense account with the banking or credit institution at which the lawyer’s trust account is maintained and from which the funds automatically and promptly are swept into the lawyer’s trust account, or through another substantially similar arrangement
3.Unless the lawyer and client otherwise agree, the lawyer must ensure that any transaction fee charged to the recipient is paid by the lawyer and not from client trust funds. Likewise, the lawyer must ensure that any chargebacks are not deducted from trust funds and that the service will not freeze the account in the event of a payment dispute
What does FRCP 4-1 govern?
4-1 governs Client-Lawyer Relationships
What is FRCP 4-1.1?
Competence - lawyer must provide competent representation - legal knowledge & skill reasonably necessary for representation.
What is FRCP 4-1.2?
Objectives and scope of representation.
What is FRCP 4-1.2(a)?
-lawyer must abide by client’s decision
-consult with client (as required by 4-1.4
-decision to settle must be decided by client
What is FRCP 4-1.2(b)
-representing a client is not lawyer endorsing views or activities of client
FRCP 4-1.2(c)
-lawyer has the right to limit their scope of representation but must tell client rule prohibiting communication with represented person
FRCP 4-1.2(d)
-lawyer shall not help a client with criminal or fraudulent activity but may discuss legal consequences of such activity
Which family law rule of procedure permits lawyer to file notice of limited apperance?
12.040
FRPC 4-1.3
Diligence - lawyer must act diligently when representing client.
FRPC 4-1.4
Communication
FRPC 4-1.4(a)
Lawyer must inform client of status of representation
-inform client of decisions
-consult with client re objectives
-promptly comply with reasonable requests for info
-consult with client about any relevant limitation on lawyer’s conduct when client asks you to do something shady
FRPC 4-1.4(b)
Duty to explain matters to client so client can make informed decision
FRPC 4-1.5
Fees & Costs for Legal Services
FRPC 4-1.5(a)
Lawyer cannot charge excessive fee a fee is excessive if a lawyer with ordinary prudence would be left with a definite or firm conviction that the fee or costs exceeds reasonable fee or cost for services to a degree that constitute clear overreaching or unconscionable demand OR
the fee or cost is sought by intentional misrepresentation
FRPC 4-1.5(b)(1)
Factors to determine reasonable fees:
(A) the time and labor required, the novelty, complexity, difficulty
of the questions involved, and the skill requisite to perform the legal
service properly;
(B) the likelihood that the acceptance of the particular
employment will preclude other employment by the lawyer;
(C) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;
(D) the significance of, or amount involved in, the subject matter
of the representation, the responsibility involved in the
representation, and the results obtained;
(E) 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;
(F) the nature and length of the professional relationship with
the client;
(G) 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
(H) 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.
FRPC 4-1.5(b)(2)
Factors to determine reasonable costs:
(A) the nature and extent of the disclosure made to the client
about the costs;
(B) whether a specific agreement exists between the lawyer and
client as to the costs a client is expected to pay and how a cost is
calculated that is charged to a client;
(C) the actual amount charged by third party providers of
services to the attorney;
(D) whether specific costs can be identified and allocated to an
individual client or a reasonable basis exists to estimate the costs
charged;
(E) the reasonable charges for providing in-house service to a
client if the cost is an in-house charge for services; and
(F) the relationship and past course of conduct between the
lawyer and the client.
FRPC 4-1.5(c)
In determining a reasonable fee,
the time devoted to the representation and customary rate of fee need not be the sole or controlling factors. All factors set forth in this rule should be considered, and may be applied, in justification of a fee higher or lower
than that which would result from application of only the time and rate
factors.
FRPC 4-1.5(d)
Enforceability of fee contract - generally enforceable unless founds to be illegal
FRPC 4-1.5(e)(1)
Duty to communicate basis of rate of fee or cost to client - the basis or rate of the fee and costs must be
communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation
4-1.5(e)(2)
Definitions.
-Retainer. A retainer is a sum of money paid to a lawyer to
guarantee the lawyer’s future availability. A retainer is not payment for past legal services and is not payment for future services.
-Flat Fee. A flat fee is a sum of money paid to a lawyer for all
legal services to be provided in the representation. A flat fee may
be termed “non-refundable.”
Advance Fee. An advanced fee is a sum of money paid to the lawyer against which the lawyer will bill the client as legal services are provided.
FRPC 4-1.5(f)(3)
A lawyer must not enter into an arrangement t to get paid:
(A) any fee in a domestic relations matter, the payment or amount of which is contingent on the securing of a divorce or on the amount of alimony or support, or property settlement in lieu thereof;
or
(B) a contingent fee for representing a defendant in a criminal case.
When can family lawyer seek contingent fees?
legal representation in connection with the recovery of post judgment balances due under support, alimony, or other financial orders
Can family lawyer include bonus provision to be determined at a later time based on results?
No - it’s been deemed an impermissible contingent fee
FRPC 4-1.6
Confidentiality of information
FRPC 4-1.6(a)
Lawyer cannot reveal info about client unless otherwise permitted by the rules.
When MUST a lawyer reveal client info?
4-1.6(b)
-to prevent client from committing crime or prevent death or substantial bodily harm to another
When MAY a lawyer reveal client info?
4-1.6(c) - when lawyer reasonably believes it is necessary:
-to serve client interest
-establish claim or defense on behalf of lawyer in issue b/w client and lawyer
-establish claim or defense to criminal charge or civil claim against lawyer for client’s conduct
-respond to allegations in any proceeding concerning lawyer’s representation of client
-to comply with Rules Regulating the FL BAR
-to detect and resolve conflicts of interest b/w lawyers in different firms arising from lawyer’s change in employment but only if it will not compromise atty-client privilege or otherwise prejudice the client
Is a lawyer required to reveal client info if ordered by tribunal
4-1.6(d) - not until lawyer FIRST exhaust all appellate remedies
FRPC 4-1.6(e)
Lawyer must make reasonable effort to prevent inadvertent disclosure
What is lawyer’s obligation if disclosure of client info is mandated?
4-1.6(f) - if mandated, only disclose what is necessary to meet requirement
Which rules obligate a lawyer to disclose client info?
4-2.3 - providing info for an evaluation
4-3.3 - candor toward tribunal
4-4.1 truthfulness in statements to others
When is the disclosure of client information prohibited even in the event of law firm merger? i
If it would compromise the attorney-client privilege or otherwise prejudice the client (e.g., the fact that a corporate client is seeking advice on a corporate takeover that has not been publicly announced; that a person has consulted a lawyer about the possibility of divorce before the person’s intentions are known to the person’s spouse; or that a person has consulted a lawyer about a criminal investigation that has not led to a public charge). Under those circumstances, subdivision (a) prohibits disclosure unless the client or former client gives informed consent. A lawyer’s fiduciary duty to the lawyer’s firm may also govern a lawyer’s conduct when exploring an association with another firm and is beyond the scope of these rules.
FRPC 4-1.7
Conflict of Interest; Current clients
Explain FRPC 4-1.7(a)
Lawyer cannot represent a client if representation of 1 client is directly adverse to another or there’s substantial risk that representation will limit lawyer’s responsibility to another client former client 3rd person or personal interest of lawyer
Can a lawyer ever represent a client that may adversely impact another?
4-1.7(b) - Yes, IF lawyer believes they can rep each client diligently, representation not prohibited by law, representation does not involve position adverse to another client; each affect client gives informed consent confirmed in writing or clearly stated on record at hearing
What is lawyer’s duty if they rep multiple clients in a single matter?
Consult must explain implication - advantages and risks
FRPC 4-1.8
Conflict of Interest, Prohibited and Other Transaction’s
Explain FRPC 4-1.8
Lawyer cannot engage in business transaction with a client unless by way of lien to secure fee
If a lawyer is permitted to engage in business transaction with client via lien to secure fee, what requirements must be met?
-terms must be fair and reasonable and in writing
-client advised in writing to seek legal counsel
-client gives informed consent in writing to essential terms of transaction and lawyer’s role in transaction and include in lawyer reps client in transaction
Can a lawyer solicit gift from client?
4-1.8(c) - lawyer is prohibited from soliciting gifts unless related to the client.
Can lawyer acquire literary or media rights?
4-1.8(d) Prior to conclusion of representation to a client, lawyer is prohibited from making media rights related to representation
Can lawyer give financial assistance to client?
FRPC 4-1.8(e) - lawyer cannot give money to client in connection with litigation except advance costs of litigation or pay court costs and expense of litigation for indigent client
When can a lawyer give financial assistance to client?
advance costs of litigation or pay court costs and expense of litigation for indigent client
Can lawyer accept payment from 3rd party?
4-1.8(f) - no unless client gives informed consent, it doesn’t interfere with professional judgment and information related to rep is protected
Can a lawyer enter an agreement prospective limiting liability to client for malpractice?
4-1.8(h) A lawyer is prohibited from making an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement. A lawyer is prohibited from settling a claim for liability for malpractice with an unrepresented client or former client without first advising that person in writing that independent
representation is appropriate in making the agreement.
Can a lawyer seek propriety interest in a cause of action?
4-1.8(i) A lawyer is prohibited from acquiring a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:
(1) acquire a lien granted by law to secure the lawyer’s fee or
expenses; and
(2) contract with a client for a reasonable contingent fee
If one lawyer in a firm has a conflict, do all lawyers have a conflict?
Yes - 4-1.8(h) while lawyers are all in one firm a conflict for one is a conflict for all
What is a lawyer’s duty to former clients?
4-1.9 A lawyer who has formerly represented a client in a matter must not afterwards:
(a) represent another person in the same or a substantially related
matter in which that person’s interests are materially adverse to the
interests of the former client unless the former client gives informed
consent;
(b) use information relating to the representation to the disadvantage of the former client except as these rules would permit or require with respect to a client or when the information has become generally known; or
(c) reveal information relating to the representation except as these
rules would permit or require with respect to a client.
What is the rule on imputed disqualification of all lawyers in a firm?
4-1.10 While lawyers are associated in a firm, none of them may knowingly represent a client when any 1 of them practicing alone would be prohibited from doing so by rule 4-1.7 or 4-1.9 except as provided elsewhere in this rule, or unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.
What is the rule on former client of newly associated lawyer
4-1.10 (b) When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter.
What is the rule on representing interest adverse to clients of formerly associated lawyer
4-1.10(c) When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:
(1) the matter is the same or substantially related to that in which
the formerly associated lawyer represented the client; and
(2) any lawyer remaining in the firm has information protected by
rules 4-1.6 and 4-1.9(b) and (c) that is material to the matter
Can a conflict be waived?
4-1.10(d) A disqualification prescribed by this rule may be waived by the affected client under the conditions stated in rule 4-1.7
What rule governs special conflicts of interest of former and current government officers and employees?
4-1.11
What rule governs representation of former judge, arbitrator, mediator or other neutral 3rd party?
4-1.12
What is the exemption for arbitrator as partisan?
4-1.12(d) - An arbitrator selected as a partisan of a party in a multimember arbitration panel is not prohibited from subsequently representing that party
If lawyer represents an organization, to whom does the laywer have a duty?
The organization - must act in the organization’s best interest.
What is lawyer’s obligation with client has a diminished capacity?
4-1.14 - maintain a normal client-lawyer relationship as much as reasonably possible
What should lawyer do if client has diminished capacity and is acting not in their best interest?
Lawyer has to assess best course of action to protect client’s interest and exhaust all remedies to protect client before seeking removal of any of the client’s rights or the appointment of a guardian.
What is lawyer’s obligation to maintain confidentiality with client who has diminished capacity?
May reveal confidential information necessary to protect client’s interest.
what is rule 4-1.15?
Safekeeping property - lawyer shall comply with Florida Bar Rules regulating trust accounting
What is rule 4-1.16?
Declining or Terminating Representation
When MUST a lawyer decline or terminate representation?
(1) the representation will result in violation of the Rules of
Professional Conduct or law;
(2) the lawyer’s physical or mental condition materially impairs the
lawyer’s ability to represent the client;
(3) the lawyer is discharged;
(4) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent, unless the client agrees to disclose and rectify the crime or fraud; or
(5) the client has used the lawyer’s services to perpetrate a crime or fraud, unless the client agrees to disclose and rectify the crime or fraud.
A lawyer MAY withdraw IF:
(1) 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;
(3) the 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; or
(5) other good cause for withdrawal exists.
What is rule 4-1.17
Sale of Law Practice
A lawyer or a law firm may sell or purchase a law practice, or an area of practice, including good will, provided that:
rule 4-1.17 - must sell to FL licensed attorney (at least 1 lawyer of the group)
give notice to clients by certified mail of proposed sale, client right to retain other counsel, & failure to object in 30 days will be presumed consent for substitution of counsel
Court must approve
When is sale of practice consummated?
Not until 30 day consent period has expired and court orders have been entered authorizing substitution of counsel.
If lawyer purchases practice, are the obligated to honor fee agreements?
Yes - cannot charge more to a client just because of sale 4-1.17(f)
What is rule 4-1.18
Duties to prospective clients
What is rule 4-1.19
Collaborative law process in family law
Name the 8 main categories of Chapter 4 of Rules of Professional Conduct
4-1 client-lawyer relationship
4-2 counselor
4-3 advocate
4-4 transactions with persons other than client
4-5 law firms and associations
4-6 public service
4-7 information about legal service
4-8 maintaining the integrity of the profession
Per 4-2, in representing a client, how shall an lawyer advise a client?
Exercise independent professional judgment and render candid advice. Lawyer may refer not only to law but to other considerations such as moral, economic, social, and political factors that may be relevant to the client’s situation.
Can a lawyer do an evaluation for use by third person?
4-2.3 Yes - A lawyer may provide an
evaluation of a matter affecting a client for the use of someone other than the client if:
(1) the lawyer reasonably believes that making the evaluation is compatible with other aspects of the lawyer’s relationship with the client;
and
(2) the client gives informed consent.
In reporting the evaluation, the lawyer shall indicate any material limitations that were imposed on the scope of the inquiry or on the disclosure of information.
Except as disclosure is required in connection with a report of an evaluation, information relating to the evaluation is otherwise protected by rule 4-1.6.
Can a lawyer serve as a neutral 3rd party?
4-2.4 YES - this rule allows lawyer to act as mediator or arbitrator. Lawyer must explain they are a neutral 3rd party.
What is rule 4-3
Advocates
Does a lawyer have a duty to bring forth meritorious claims?
4-3.1 YES - A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require
that every element of the case be established.
Does lawyer have duty to expedite litigation?
4-3.2 YES - A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client
4-3.3
Candor toward the tribunal
Explain lawyer’s obligation under 4-3.3
Lawyer cannot make a false statement of fact or law to tribunal and has a duty to correct a false statement of material fact or law made to tribunal by lawyer
Lawyer cannot fail to disclose material fact to tribunal if disclosure necessary to avoid assisting a criminal or fraudulent act by client
Lawyer cannot fail to disclose to tribunal legal authority in the controlling jur. known to lawyer even if adverse to client and even if oc doesn’t know the law
Lawyer cannot offer evidence that’s false
Lawyer cannot let client commit criminal or fraudulent acts related to a proceeding
What must a lawyer do under 4-3.3 if lawyer learns false info given to court?
Must take reasonable remedial steps including disclosure to court
Under 4-3.3 what is a lawyer’s obligation to court in ex parte proceeding
To disclose all facts known to lawyer that will enable, even facts adverse to client, so court to make informed decision
Can a lawyer divulge confidential info in accordance with 4-3.3
Yes, if it is necessary.
what is 4-3.4
Fairness to opposing party and counsel
In accordance with 4-3.4, what are a lawyer’s obligations?
A lawyer must not:
-unlawfully obstruct access to discovery
-fabricate evidence or help a client do so
-knowingly disobey court order
-make frivolous discovery request or intentionally fail to comply with discovery
-in trial make personal opinion about credibility of witness or say something known to not be relevant or that will not be supported by admissible evidence
-request nonparties to refrain from providing relevant info to another party unless that person is a relative / employee
-threaten criminal action to get advantage in civil case
-threaten disciplinary action to obtain advantage in civil case
What is 4-3.5
Impartiality and decorum of tribunal
What is lawyer’s duty under 4-3.5
Lawyer shall not seek to influence judge
Lawyer shall not communicate about merits of case with judge unless
-in the course of official proceeding g
-in writing and oc is included
-orally upon notice to oc
-or otherwise authorized by law
Lawyer shall not engage in conduct intended to disrupt court
What is 4-3.6
Trial publicity
Explain 4-3.6 in a nutshell
Lawyer shall not make extrajudicial statements or tell a 3rd party to do to the public if it will impact the integrity of the court proceeding.
What is 4-3.7
Lawyer as witness
When may a lawyer testify per 4-3.7?
-If testimony relates to uncontested issue
-Testimony will relate solely to a matter of formality
- testimony relates to nature and value of services rendered in case OR
-disqualification of lawyer would work substantial hardship to client
What is rule 4-3.8
Responsibilities of a prosecutor
What is rule 4-3.9
Advocate in nonadjudicative proceeding
What is a lawyer’s duty as an advocate in nonadjudicative proceeding?
Lawyer representing client before legislative body must disclose they are appearing in a representative capacity and follow rules of candor toward tribunal and impartiality and fairness to opposing party and counsel
What is the broad category of 4-4?
Transactions with persons other than clients
What is rule 4-4.1
Truthfulness in statements to others
What is a lawyer’s obligation under
4-4.1
Cannot make a false statement of material fact or law to 3rd party or fail to disclose a material fact to 3rd party when disclosure is necessary to avoid assisting criminal or fraudulent act by a client
What is 4-4.2
Communication with persons represented by counsel
What is a lawyer’s duty when communicating with persons represented by counsel 4-4.2
-Cannot speak to a represented party unless specific consent by their lawyer UNLESS lawyer is obligated to do so by law but must provide a copy to their lawyer
-An unrepresented party may be communicated with until a lawyer gets notice of representation or limited notice of rep.
What is 4-4.3
Dealing with unrepresented persons
What is lawyer’s duties in dealing with unrepresented persons per 4-4.3
Lawyer must make it clear they do not represent unrepresented party and cannot offer legal advice other than advising to secure counsel
Lawyer can treat an unrep. person as such until a lawyer files notice of limited appearance (12.040)
What is rule 4-4.4
Respect for rights of 3rd parties
What is a lawyer’s obligation under 4-4.4?
Lawyer cannot burden a 3rd party if there is no substantial purpose other than embarrassment
If lawyer receives document inadvertently, must promptly notify sender
What is the broad category of 4-5?
Law firms and associations
What is 4-5.1
Responsibility of partners, managers and supervisory attorneys
What are partners & supervisory attorney’s obligations under 4-5.1
Make sure firm has measures in place to assure all lawyers are in compliance with Rules of Professional Conduct
When is a lawyer responsible for another lawyer’s actions per 4-5.1
-the lawyer orders the conduct
-if lawyer has managerial authority or supervisory authority knows of conduct at a time when they could have mitigated but failed to take remedial action
what is 4-5.2
Responsibilities of subordinate lawyer
What is a subordinate lawyer’s duty under 4-5.2
-sub. lawyer is responsible for their conduct even at the direction of another person
-sub. lawyer not in violation if they acted at direction of supervisor’s reasonable resolution of an arguable question of professional duty
What is rule 4-5.3
Responsibilities regarding nonlawyer assistants
Lawyer’s duty of paralegals and legal assistants per 4-5.3
Paralegal and legal assistant providing services to public must work under or at direction of lawyer
Lawyer must be sure they have procedure in place to assure nonlawyers conduct is compatible with professional obligations of the lawyer
Lawyer will be responsible for conduct of their nonlawyer staff if the nonlawyer violates rules of professional conduct IF lawyer knew about the conduct or knew before conduct took place and failed to stop it
-Lawyer responsible to review all nonlawyer work
What is 4-5.4
Professional independence of lawyer
Can a lawyer share fees with nonlawyers per 4-5.4?
No, unless
-can may fees to lawyer’s estate upon death
-if lawyer does unfinished business of deceased lawyer can pay estate
-if lawyer purchases practice of deceased lawyer can pay estate agreed upon purchase price
-bonuses can be paid to nonlawyers for extraordinary efforts for a specific case but not for bringing cases to firm and cannot give % of fees received
-lawyer can share court awarded fees with pro bono legal service or nonprofit
-can pay qualified pension plans even if contribution to plan is based on profit-sharing arrangement
Can a lawyer partner with nonlaywer?
4-5.4(c) - NO, not when it involves the practice of law.
Explain rule on nonlawyer governance of not for profit authorized business entity 4-5.4(f)
Generally, lawyer can practice with non for profit business entity (entity providing pro bono work and operating as tax expect public charity under 501(c)(3)) authorized to practice law. A nonlawyer can be on the board but cannot have input on lawyer’s professional judgment. Non for profit business must:
-ensure confidential info inaccessible to board
-ensure communications with lawyer are protected by attorney-client privilege
-inform client that not all communication with not for profit will fall under attorney client privilege
-ensure all nonlawyers assisting abide by professional conduct rules
What is rule 4-5.5
Unlicensed practice of law; multijurisdictional practice of law
Explain lawyer obligation of 4-5.5
Lawyer can only home state 4-5.5(a)
Prohibition on lawyer not admitted to practice in FL per 4-5.5(b)
-Cannot have a a law office in FL;
-Hold out to public that they can practice in FL;
-Appear in any court proceeding unless authorized
Can lawyer be authorized for temporary practice of law?
4-5.5(c) if licensed in another state, not disbarred, suspended or disciplined/contempt by FL due to misconduct, may provide temp legal services IF:
-assisted by lawyer who is FL licensed OR
-for a related proceeding in a tribunal in another jur;
-for a related mediation or alternative dispute resolution proceeding & services do not require pro hac vice admission AND service is performed for a client who resides in or has an office lawyer’s home state, arise from related case in lawyer’s jur
Can foreign lawyer engage in temp practice in FL?
4-5.5(d) - yes, if they find a lawyer admitted in FL, it’s related to proceeding in court in their foreign jur, related to arbitration, mediation, etc. to be held in FL and pro hac vice admission not required IF - service for client who lives in their jur or has office there or arise out of lawyer’s practice,
What is 4-5.6
Restrictions on rights to practice
Explain 4-5.6
A lawyer cannot restrict a lawyer’s right to practice are termination of practice except concerning benefits upon retirement
Cannot restrict lawyer’s right to practice a party of settlement of client controversy
What is rule 4-5.7
Responsibilities regarding nonlegal services
Is a lawyer bound by rules of professional conduct when engaging in representation for nonlegal services
Yes - if services are similar to legal service.
Yes - if lawyer knows recipient thinks they are receiving protection of client-lawyer relationship
-if lawyer rungs nonlegal entity - they are subject to rules if recipients think they are receiving protection of client-lawyer relationship
-not subject to rules if lawyer makes effort to make it clear in writing legal services not being offered
What is 4-5.8
Procedures for lawyers leaving law firms and dissolution of law firms
Explain contractual relationship b/w law firm and client
4-5.8 - The contract for legal services creates the legal relationships between the client and law firm and between the client and individual members of the law firm, including the ownership of the files maintained by the lawyer or law firm. Nothing in these rules creates or defines those relationships.
Client has right to choose lawyer who represents them.
What is lawyer’s right to contact clients upon leaving law firm?
Lawyer must seek permission of authorized representative at law firm to discuss joint to communicating with client and if efforts fail after bona fide effort, then you can communicate.
What is lawyer’s right to contact clients upon dissolution of law firm ?
Lawyer must seek permission of authorized representative at law firm to discuss joint to communicating with client and if efforts fail after bona fide effort, then you can communicate.
What happens if lawyer leaves firm and joint communication with clients cannot be agreed upon?
Unilateral communication must be made to let client know that lawyer is leaving and give them option to choose to remain client of firm or go with departing lawyer.
What happens if firm dissolved and joint communication to clients cannot be agreed upon?
unilateral contact by members of the law firm must give notice to clients that the firm is being dissolved and provide options to the clients to choose representation by any member of the dissolving law firm, or representation by other lawyers or law firms.
In the event a lawyer leaves firm or firm dissolves, what must be communicated to clients regarding liability for fees and costs?
information concerning potential
liability for fees for legal services previously rendered, costs expended, and how any deposits for fees or costs will be handled. In addition, if appropriate, notice must be given that reasonable charges may be imposed to provide a copy of any file to a successor lawyer
What if client does not respond to notice of lawyer departing?
Client remains client of the firm.
What if client does not respond to notice of firm dissolution?
Client remains client of lawyer who handled case primarily.
What the broad rule under 4-6
Public Services
What is rule 4-6.1
Pro bono public services
What is a lawyer’s professional responsibility under rule 4-6.1
Each member of The Florida Bar in
good standing, as part of that member’s professional responsibility, should(1) render pro bono legal services to the poor and (2) participate, to the extent possible, in other pro bono service activities that directly relate to the
legal needs of the poor.
Who does NOT have to comply with professional responsibility under 4-6.1
-members of the judiciary or their staffs
-government lawyers
-members of the bar who are retired, inactive, or suspended,
or who have been placed on the inactive list for incapacity not related to discipline
Are lawyers obligated to conduct pro bono legal services?
No - it’s aspirational in nature and you cannot be disciplined.
How can a lawyer satisfy professional responsibility for pro bono services?
provide 20 hours pro bono per year or
contribute $350 to legal aid
Are lawyers obligating to report pro bono fulfillment?
Yes - failure to report will subject you to disciplinary action.
Can lawyer carry forward credit for pro bono hours to following year?
YEs
What is out of state lawyer’s responsibility for pro bono?
Out-of-state members of the
bar may fulfill their professional responsibility in the states in which they practice or reside.
What is 4-6.2
Accepting appointments
What is lawyer’s responsibility under 4-6.2
Lawyer cannot avoid appointment absent good cause:
-representing the client is likely to result in violation of the Rules of
Professional Conduct or of the law
-representing the client is likely to result in an unreasonable financial
burden on the lawyer;
-the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent
the client
What is rule 4-6.3
Membership in legal service organization
Can a lawyer service as a director for an organization apart from its law firm?
Yes, unless it would be a conflict of interest or have adverse effect of representation of client of organization
What is rule 4-6.4
Law reform activities affecting client interest
Can a lawyer be involved in reform of law that the reform may affect interest of a client?
When the lawyer knows that the interests of a client may be materially affected by a decision
in which the lawyer participates, the lawyer shall disclose that fact but need not identify the client.
What is rule 4-6.5
Voluntary pro bono
What is the purpose of voluntary pro bono
Increase the availability of legal service to the poor and expand pro bono legal service programs
Who appoints standing committee on pro bono legal service
President elect of FL BAR
What is 4-6.6
Short term limited legal services programs
What is the broad subject of 4-7
Information about legal services
What is rule 4-7.11
Application of rules
Who do rules of professional conduct apply to
All forms of advertising and any lawyer who says they practice here & it applies to referral sources about legal services
What is rule 4-7.12
required content
What must all advertisement for legal employment include
the name of at least 1 lawyer, the law firm, the lawyer referral
service if the advertisement is for the lawyer referral service, the
qualifying provider if the advertisement is for the qualifying provider, or the lawyer directory if the advertisement is for the lawyer directory, responsible for the content of the advertisement; and
(2) the city, town, or county of 1 or more bona fide office locations
of the lawyer who will perform the services advertised.
-if case will be referred to another lawyer or law firm, advertisement must say so
-disclaimer must be in same language as the language requiring disclaimer
What is 4-7.13
Deceptive and inherently misleading advertisements
When is ad deceptive or inherently misleading?
contains a material statement that is factually or legally inaccurate;
(2) omits information that is necessary to prevent the information supplied from being misleading; or
(3) implies the existence of a material nonexistent fact.
Name Examples of Deceptive and Inherently Misleading
Advertisements.
(1) statements that guarantee results
(2) references to past results unless the information is objectively
verifiable
(3) comparisons of lawyers or statements, words, or phrases that
characterize a lawyer’s or law firm’s skills, experience, reputation, or
record, unless the characterization is objectively verifiable;
(4) references to areas of practice in which the lawyer or law firm does not practice or intend to practice at the time of the advertisement;
(5) a voice or image that creates the erroneous impression that the
person speaking or shown is the advertising lawyer or a lawyer or
employee of the advertising firm. The following notice, prominently
displayed would resolve the erroneous impression: “Not an employee or member of law firm”;
(6) a dramatization of an actual or fictitious event, unless the
dramatization contains the following prominently displayed notice:
“DRAMATIZATION. NOT AN ACTUAL EVENT”;
(7) an actor purporting to be engaged in a particular profession or occupation, unless the advertisement includes the following prominently displayed notice: “ACTOR. NOT ACTUAL [ . . . ]”
(8) statements, trade names, telephone numbers, Internet
addresses, images, sounds, videos, or dramatizations that state or
imply that the lawyer will engage in conduct or tactics that are prohibited by the Rules of Professional Conduct or any law or court rule;
(9) a testimonial:
(A) regarding matters on which the person making the testimonial is unqualified to evaluate;
(B) that is not the actual experience of the person making the testimonial;
(C) that is not representative of what clients of that lawyer or law firm generally experience;
(D) that has been written or drafted by the lawyer;
(E) in exchange for which the person making the testimonial has been given something of value; or
(F) that does not include the disclaimer that the prospective
client may not obtain the same or similar results;
(10) a statement or implication that The Florida Bar has approved an advertisement or a lawyer, except a statement that the lawyer is licensed to practice in Florida or has been certified pursuant to chapter 6, Rules Regulating The Florida Bar;
(11) a judicial, executive, or legislative branch title, unless
accompanied by clear modifiers and placed after the person’s name in
reference to a current, former or retired judicial, executive, or legislative branch official currently engaged in the practice of law; or
(12) a statement or implication that another lawyer or law firm is
part of, is associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.
What is 4-7.14
Potentially Misleading Advertisements
What are considered potentially misleading ads?
(1) advertisements that are subject to varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context;
(2) advertisements that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;
(3) references to a lawyer’s membership in, or recognition by, an entity that purports to base the membership or recognition on a lawyer’s ability or skill, unless the entity conferring the membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based on objective and uniformly applied criteria, and that includes among its members or
those recognized a reasonable cross-section of the legal community the entity purports to cover;
(4) a statement that a lawyer is board certified or other variations of that term unless:
-the lawyer has been certified
-the lawyer has been certified by an organization whose specialty certification program
has been accredited by the American Bar Association or The Florida Bar
-the lawyer has been certified by another state bar if the state bar program grants
certification on the basis of standards reasonably comparable to the standards of the
Florida Certification Plan
(5) a statement that the lawyer is a specialist or an expert in an area of practice, or other variations of those terms, unless the lawyer is certified under the Florida Certification Plan or an American Bar Association or Florida Bar
(6) a statement that a law firm specializes or has expertise in an area of practice, or other variations of those terms, unless the law firm can objectively verify the claim as to at least 1 of the lawyers who are members of or employed by the law firm as set forth in subdivision, but if the law firm cannot objectively verify the claim for every lawyer employed by the firm, the advertisement must contain a reasonably prominent disclaimer that not all lawyers in the firm specialize or have expertise in the area of practice in which the firm claims specialization or expertise;
(7) information about the lawyer’s fee, including those that indicate no fee will be charged in the absence of a recovery, unless the advertisement discloses all fees and expenses for which the client might be liable and any other material information relating to the fee
What is rule 4-7.15
Unduly manipulative or intrusive advertisements
When is an advertisement unduly manipulative?
(a) the ad is dramatized to appeal to prospective clients emotion rather than lawyer’s suitability to rep that client
(b) uses an authority figure as an actor to endorse lawyer
(c) uses voice of celebrity
(d) offers economic incentive to hire lawyer (but you can offer discount or special fee or cost structure and you can offer free advise)
What is rule 4-17.16
Presumptively valid content
What is deemed presumptively valid ad content
(1) the name of the lawyer or law firm, name of lawyers in firm, office and parking arrangement, office locations and parking arrangements, disability accommodations,
telephone numbers, website addresses, and electronic mail addresses, office and telephone service hours, and a designation such as “attorney” or “law firm”;
(2) date of admission to bar
(3) technical and prof license (military service, foreign language, fields of law, prepared group service, acceptance of credit cards, fee for consultation, common salutations, punctuation marks, illustrations of scales of justice that aren’t similar to cert logos or Florida bar logo
Can you use lawyer referral service?
Yes - but only to advertise name, location, phone, fees, business hours, process of how referral is made, geographic area of lawyer.
What is rule 4-7.17
Payment for advertising and promotion
What is rule on payment to other lawyers?
Lawyer cannot directly or indirectly pay cost of ad for lawyer not in its firm
Can lawyer pay referral fees?
A lawyer cannot give anything of value to a person for recommending lawyer’s service except lawyer can pay usual charge of referral service
Can nonlawyer pay lawyer ads?
4-7.17 - NO
What is rule 4-7.18
Direct contact with prospective clients
What is the rule on lawyer’s solicitation of clients?
Cannot solicit clients if lawyer has no family or processional relationship
Cannot enter into agreement to have someone solicit for you
no written solicitation - cannot hit up a respondent in a DV case who hasn’t yet been served
What is rule 4-7.19
Evaluations of Advertisements
Explain 4-7.19
Must file a copy of advertisement with FL BAR 20 days before it is disseminated
FL Bar will evaluate to make sure it complies with all rules (4-7.11; 4-7.15 and 4-7.18) . If they don’t say anything after 15 days - you’re gucci
Can be subject to discipline if you fail to timely file ad with FL BAR; disseminate a noncompliance ad; file ad with misrep; disseminate an ad after FL bar told you dissemination portion of lawyer firm site that aren’t in compliance with 4-7.14 & 4-7.15
must maintain copy of your ad for 3 years and record where and when used
What is rule 4-7.20
Exemptions from filing and review requirement
Explain rules 4-7.20
If the ad has no illustration and no other info other than what is allowed in 4-7.16; brief announcement that lawyer contributed to charity;
Listing or entry in a law list or bar publication
Communication mailed only to clients
Written or recorded communication requested by prospective client
Professional announcement of new firm name
Information on lawyer website
What is Rule 4-7.21
Firm Names & Letterhead
Explain rule 4-7.21
No misleading firm name/letter head
Can use tradename if it isn’t deceptive
Cannot advertise under trade or fictitious name
Name of lawyer holding public office may not be used in law firm name
What is rule 4-7.22
Referrals, directories and pooled advertising
Explain rule 4-7.22
Cannot cut deals that seem like they are splitting legal fees with nonlawyers
What is the overall rule in 4-8
Maintaining integrity within profession
What is rule 4-1.8
BAR ADMISSION AND DISCIPLINARY MATTERS
What are obligations of an applicant for admission to bar or lawyer in connection with bar admission application or disciplinary matter?
Shall not
-knowingly make a false statement of material fact;
-fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not
require disclosure of information otherwise protected by rule 4-1.6; or
-commit an act that adversely reflects on the applicant’s fitness to practice law. An applicant who commits such an act before admission, but which is discovered after admission, shall be subject to discipline under these rules
What is rule 4-8.2
JUDICIAL AND LEGAL OFFICIALS
What are lawyer’s obligations under 4-8.2?
A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, mediator, arbitrator, adjudicatory officer, public legal officer, juror or member of the venire, or candidate for election or appointment to judicial or legal office
A lawyer who is a candidate for judicial office shall comply with the applicable provisions of Florida’s Code of Judicial Conduct.
What is rule 4-8.3
REPORTING PROFESSIONAL MISCONDUCT
What is lawyer’s responsibility to report under 4-8.3?
-A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority.
-A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that
raises a substantial question as to the judge’s fitness for office must inform the appropriate authority.
What are exceptions to a lawyer’s duty to disclose under 4-8.3?
-if info is protected by 4-1.6
-info learned while serving as mediator or mediation participant if info is privileged
-if learned while participating in lawyer’s assistance program
-lawyer for FL BAR if they learned the info performing their job duties for the program
What is rule 4-8.4
MISCONDUCT
Under 4-8.4, what are lawyer’s duties
Lawyer shall not:
-violate rules of professional conduct
-commit criminal act that makes you look dishonest untrustworthy or unfit
-engage in dishonest conduct (unless part of an investigation)
-engage in lawyer practices that are prejudicial to administration of justice
-imply or state ability to influence judge
-assist judge to violate rules of judicial conduct
-fail to respond to FL BAR
-refuse to pay court ordered child support
-have sex w/ client or representative if it adversely affects client - lawyer relationship
What is lawyer responsibility to respond to FL bar inquiry?
-15 days from date of initial inquiry
-10 days from any follow up inquiry
-or whatever time frame in the subpoena
What is rule 4-8.5
JURISDICTION
Explain 4-8.5
A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction although engaged in practice elsewhere
What is rule 4-8.6
AUTHORIZED BUSINESS ENTITIES
What type of entity can lawyers practice law
Professional service corporations, professional limited liability
companies, sole proprietorships, general partnerships, or limited liability partnerships organized or qualified under applicable law
Who are law practices limited to
Only lawyers licensed to practice law here
What is disqualification from law considered for purposes of your law firm practice only permitting fl licenses lawyers to be apart of it
Obviously disqualification but any suspension over 91 days
