Professional Conduct Flashcards
regulatory controls: general sources of regulation
1-state regulations-FL BAR-“integrated”-requires all attys who practice in FL to join; inherent authority vested in FLSC; regulated by courts, legislature, and FL Bar. 2-fed regulations: admission requires membership in state bar; allows for “pro hace vice” appearances. 3-ABA-voluntary organization-model rules have been adopted w/ changes by FL Bar
admission requirements to FL Bar
1-Character & fitness: “good moral character;” 2-New admissions: Practicing w/ professionalism course (12 months before & 12 months after admission), 3 basic skills review courses-may defer, and CLE 30 hrs/3 years; 3-graduation from an accredited law school, accreditation w/i 12 months, or 10 years of prior practice & good standing in another state; 4-pass bar exam: MBE, FL, and MPRE; 5-must be 18
disciplinary process in general
every atty s charged with knowledge of the rule
disciplinary process: general prohibitions
assisting or violating the model rules; commit a criminal act or “intentionally” (deliberate and knowingly) engage in any conduct involving honesty, trustworthiness, or fitness; attempt or imply ability to improperly influence gov’t officials; engage in conduct prejudicial to the administration of justice; assist judiciary in violating the rules; knowingly or through callous indifference disparage, humiliate or discriminate against legal professionals on basis of protected status; fail to participate in disciplinary proceedings; fail to pay child support; sex with clients
disciplinary process: procedure
complaint filed w/i 6 years; grievance committee hearing; procedural protections; right to counsel; cross; against self-incrimination; probable cause found-formal complaint with Bar filed; no PC-can be revisited
disciplinary process: sanctions
disbarment; suspension; public reprimand or admonishment; probation; enhancement programs
unauthorized practice of law
if not admitted to practice, may not 1-establish office/regular presence for purpose of practicing law; 2-falsely represent or advertise admission status; 3-make court appearances, unless authorized by court rules. Judges may not practice; no “specialized” attorneys, unless certified; nonlawyers may not own firms, share attorney fees, or influence attorney’s independent judgment; work delegated to nonlawyers must be supervised
Law firms in general
3 categories of practitioners: partner-responsible/liable; associates-limited liability; of counsel. “General counsel”-firm devotes substantial amount of time to client’s representation. Name of firm: not false or misleading; trade name not in connection w/ gov’t agency/employee.
supervising attorneys
must ensure “firm has in effect measures” that all attorneys comply with PRC. A “direct” supervising atty must ensure compliance of subordinates. Direct instruction to violate rules or ratification of actions creates liability for misconduct.
subordinate attorneys
generally liable for own actions unless instructed by supervisor and arguably not a violation of the rule
no contractual restrictions on right to practice in a law firm
unless it concerns retirement benefits or settlement of clent controversy
sale and purchase of law practice
allowed with 30 day notice to client to obtain consent; pending litigation requires court approval; existing fee arrangement is binding
advertising and solicitation in general
applies to public media or written communications intended to elicit business from/in FL. Advertising is communication w/ the public at large; commercial speech is protected by the 1st and 14th amendments.
advertising and solicitation: prohibitions and limitations
commercial speech prohibited only if “false, misleading, deceptive, or use of testimonial,” but may limit by regulations that: 1-serve a substantial gov’t interest, 2-directly and materially advance” that interest, and 3-are “narrowly tailored” to serve the substantial interest.
advertising and solicitation: basic rule
statements may not include: 1-material representation of law or fact-false, misleading, unsubstantiated in fact or deceptive, including by omission of material information; 2-references to past successes or results obtained; 3-promises of results or improper methods to receive certain results that violate the RPC; 4- comparisons to other lawyer services unless factually substantiated; 5-testimonials
advertising and solicitation: content for advertisements and unsolicited written communications
required content: name of at least one lawyer in firm or lawyer referral service and location of office. Permissive content: specific information that if sole content of communication will exempt attorney from filing and evaluation requirement: 1-lawyer’s name, office location, and phone number; 2-date of bar admission; 3-professional licenses and educational degrees; 4-foreign language ability; 5-fields of law practiced; 6-fee schedules; 7-military service; 8-participation in prepaid legal services; 9-credit card accepted; 10-firm member as PSA rep; 11-scales of justice; 12-common salutary and punctuation.
pro hac vice
admission to practice in another district; when in front of tribunal it is required; fill out a form and pay a fee
advertising and solicitation: rules for advertisements only
1-no statement contending “approved by the FL Bar;” describing quality of services; or advertising in areas of law not currently practicing; 2-may contain illustrations, visual or verbal descriptions, etc. as long as not deceptive, misleading, or confusing; 3-may not contain the voice or image of a publicly recognizable celebrity; 4-if going to be referred to another atty, must say so in ad; 5-annual published ads w/ fees must be honored one year from publication, all others 90 days, unless expiration date specified
advertising and solicitation: internet communications
websites must disclose all: 1-jurisdictions of lawyer(s) licensed to practice; 2-office locations; 3-subject to advertising rules; 4-additionally emails must state “legal advertisement.”
advertising and solicitation: evaluation of advertisements
must file a copy of the ad with the FL Bar 20 days prior to first dissemination if TV or radio, or prior to or concurrently with all other mediums. Exemptions from filing requirement include: permissive content only; PSAs that identify charitable contribution; professional announcements; publication listings; communications mailed to existing or former clients or other lawyers
advertising and solicitation: payment
no payments for referrals and no payment for another lawyer’s advertisement not within same firm
advertising and solicitation: solicitation definition
individual contact with the intent to entice the person to hire you; compliance by attorney or agent.
advertising and solicitation: prohibited solicitation
solicitation to prospective clients with no prior relationship and significant motive is pecuniary gain
advertising and solicitation: permitted solicitation
WRITTEN communication that is: 1-marked “advertisement” in red ink on envelope and first page and sent regular US mail, 2-no coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence, 3-recipient not already represented, 4-lawyer not previously advised to not send communication, 5-lawyer is unaware of recipient’s mental health status in exercising reasonable judgment in selecting a lawyer, 6-minimum of 30 days since litigious incident occurred, 7-does not resemble pleading or other court document, 8-sent by US mail only
advertising and solicitation: referral services
lawyer may accept referral from RS only if: 1-RS complies with communication rules of FL Bar; 2-RS receives no fee that constitutes fee-sharing; 3-referrals made only to those permitted to practice; 4-carries or requires each lawyer to carry $100k malpractice insurance per claim/occurrence; 5-furnishes FL Bar quarterly updates of all participating lawyers and FBNs and those permitted to act on behalf of RS; 5-responds to FL Bar inquiries regarding misconduct w/i 15 days; 7-no representation of “approved by the FL Bar;” 8-uses legal or fictitious name in all communications; 9-affirmatively states in ads “lawyer referral service.”
attorney certifications
FL certification standards are met and “Board Certified ____ Lawyer” “Specialist in ____” or “B.C.S. _____”
atty-client relationship in general
lawyer has a fiduciary duty to the client. This includes a duty of loyalty, confidentiality, diligence, communication, and competence in representation. An atty must always act in the best interest of his client; duty to render public interest legal service; report and aspire to 20 annual pro bono hours or $350 to legal aid
atty-client relationship: accepting representation
must not avoid appointments unless good cause shown; may not refuse to represent indigent appointment; disabled clients are treated normally, but may appoint a guardian if reasonable belief client cannot adequately act in own interest; may not avoid appointment unless violates law, unreasonable financial burden, repugnant
atty-client relationship: scope of representation
may be contractually limited. Client made decisions: sue, settle (must tell client of all offers), testify, plea, jury/bench trial, appeal. Atty made decisions: procedural and tactical: court, depositions, discovery, continuances, exceptions: atty must defer to client when it comes to money to proceed
atty-client relationship: conflicts of interest in general
atty must avoid relationships that will adversely affect his ability to exercise independent and professional judgment
atty-client relationship: adverse interests
may NOT undertake representation if representing one client would be directly adverse to another or if there is a substantial risk that such representation will materially limit the lawyer’s responsibilities to another client. Exceptions: 1-reasonable belief in ability to provide competent and diligent representation to each client; 2-representations are not prohibited by law; 3-does not involve asserting position adverse to another client; 4-each client consents
atty-client relationship: other prohibited transactions
1-Owner and Financial interest adverse to client-must be fair, reasonable, and fully disclosed to client; 2-Proprietary interests in COA-only liens for attorney costs/fees or reasonable contingency fee in civil cases; 3-use of adverse client information-only with client’s consent; 4-beneficiary designation-no solicitation, NO gifts, unless close familial relationship and NO preparation of instrument conveying such a gift; 5-literary or media rights-permitted after the conclusion of representation and w/ client consent; 6-financial assistance to client-only to pay/advance court costs and expenses; 7-3rd party compensation-only if client gives informed consent, no interference w/ independent and professional judgment, client information still protected; 8-aggregate settlements prohibited unless client consents; 9-limiting malpractice liability is prohibited; 10-settling malpractice claims with unrepresented clients unless explicitly informed of representation rights in writing; 11-insured clients-provide statement of insured clients’ rights and keep the signed copy for 6 yrs; 12-local gov’t attys-may not solicit/accept gifts to influence official act. corruptly use position for personal gain, disclose confidential information for personal or others’ gain, represent client before branch served
atty-client relationship: former clients
must consent to new client representation where clients’ interests are materially adverse, and atty may not use information gained from former client to his detriment or for the benefit of the new client, unless the information in question is “generally known” to the public
atty-client relationship: prospective clients
same as former clients, except: representation by DQ attorney’s firm permissible if: 1-both affected and prospective clients consent in writing or DQ atty took reasonable measures to avoid exposure to more information than reasonable necessary, and 2-DQ atty is timely screened from participation and receives no fee, and 3-written notice promptly given to prospective client
atty-client relationship: mediators
3rd party neutrals-must explain NO representation and explain differences in roles
atty-client relationship: atty testimony
no client representation where the atty is likely to be a necessary witness. However, an atty can ethically testify at a client’s trial regarding: uncontested matters, matters of formality, nature and value of legal services, and if testimony is necessary and withdrawal would create a substantial hardship to the client
atty-client relationship: corporate representation
represents organization, not individual members, but may represent individuals on other non-conflicting matters; may resign if highest authority requesting action that violates the law
atty-client relationship: imputed disqualification
if one atty in firm DQ-all attys in firm DQ; including former clients of new associate; and firm may represent after conflict atty is terminated, but not the same or substantially related matter and no remaining atty may retain protected information
atty-client relationship: gov’t attys
gov’t agencies must give consent before former gov’t atty may privately represent client in matter where atty participated as a public official; NOT imputed to private firm if DQ gov’t atty SCREENED AND FILED WRITTEN NOTICE TO AGENCY
Fees and Costs: generally
must be REASONABLE. Reasonableness factors: time and labor involved; novelty and difficulty of questions involved; requisite skill; interference with other employment by atty; local customary fee for similar work; amount involved and the end result obtained; nature and length of relationship between parties; experience, ability, and reputation of atty; time limitations by client or circumstances; fixed v. contingent fee
Fees and Costs: contingency fees
RPCs set out detailed guidelines for CF. Unethical and prohibited in family and criminal law. a fee in excess of guidelines (15-40%) is presumed excessive, but can be rebutted. Allowable fee amounts depend upon whether the case is settled before or after the answer is filed, the trial is on damages only, or a notice of appeal is filed. The fee amount also turns on the amount received. Must be IN WRITING and state METHOD OF FEE DETERMINATION
Fees and Costs: referral fees
unethical and prohibited
statement of clients rights: atty relationship
client must always receive a statement of client’s rights
Fees and Costs: mandatory arbitration of fee disputes
advise client of right to consult independent lawyer before signing and explicitly waives any right to go to court and resolve fee disputes
Fees and Costs: writing
duty to communicate fees, preferably in writing, non-refundable must be in writing
Fees and Costs: property as a fee
may accept property as a fee if not a conflict of interest in business transaction or improper proprietary interest
responsibilities to client: competence
legal knowledge, skill, thoroughness, preparation, prompt actions that keep client reasonably informed
responsibilities to client: confidentiality
atty-client privilege-confidential communications by client or prospective client seeking legal advice; continues indefinitely, even past death. Corporate clients-covers communications between atty and high-ranking official; possibly w/ employee if: subject is w/i scope of employee’s duties; communication is at direction of employee’s supervisor; assists corporation in obtaining legal advice
responsibilities to client: disclosure of confidential information
MUST NOT disclose ANY information RELATED TO REPRESENTATION, regardless of when or where information was acquired. Duty continues after termination of A-C relationship. Exceptions: consent; permissive disclosure-laywer may reveal information reasonably believed necessary to serve clients best interest and/or establish a claim or defense in controversy between atty and client; mandatory disclosure-lawyer MUST reveal information reasonably believed necessary to prevent client form committing a crime or prevent death or substantial bodily harm to another
responsibilities to client: confidentiality and prospective clients
confidentiality in consultation
trust accounts of clients
funds must be kept in a separate trust account, clearly labeled trust, except for funds necessary to cover trust charges; lawyer must 1-notify client/3rd party when client/3rd party entitled funds or property are received, 2-deliver funds or property to client/3rd party, and 3-render an accounting regarding funds or property when requested; TA records must be preserved for 6 years; interest or dividend bearing accounts-nominal clients funds kept for a short time MUSt be placed in IOTAs if benefits client or 3rd party; disbursement-over draft protection prohibited, only disburse collected funds if lawyer knows of insufficient funds and personally secures funds for other clients; sanctions-theft from client=disbarment
duties during representation: in general
must be honest, fair, and not undertake frivolous claims or defenses
duties during representation: 3rd parties
no action that will embarrass, delay or burden, or violate legal rights
duties during representation: represented parties
lawyer prohibited from communicating with represented person about subject of litigation, unless that person’s counsel grants consents
duties during representation: unrepresented parties
permitted and requires lawyers to 1-not represent she is disinterested; 2-clearly inform person of her role; 3-give no legal advice except to obtain counsel
duties during representation: inadvertent communications
documents inadvertently received by atty require prompt notification to sender
duties during representation: candor towards tribunal
MUST NOT: 1-make false statement; 2-fail to disclose material facts; 3-fail to disclose controlling legal authority; or 4-offer false evidence
duties during representation: fairness to opposing counsel
MUST NOT: 1-obstruct access to evidence or alter/destroy evidence; 2-fabricate evidence; 3-knowingly disobey an obligation; 4-make frivolous discovery requests; 5-allude to any matter not supported by admissible evidence; 6-request a person to refrain from giving voluntary info unless relative, agent, or client, or person will be adversely affected by disclosure; or 7-present criminal or disciplinary charges solely to obtain an advantage in a criminal matter.
duties during representation: jury
no improper contact w/ jury; NO extrajudicial statements (trial publicity) that would materially prejudice the pending proceedings
duties during representation: termination
protections continue past termination. Mandatory: 1-violation of RPC; 2-lawyer’s physical or mental incapacity; 3-discharged; 4-client persists in or used lawyer’s services to perpetrate crime or fraud actions, unless client agrees to disclose and rectify crime or fraud. Permissive: 1-may w/d if no adverse material effect on client; 2-client fails substantially to fulfill obligation to atty; 3-unreasonable financial burden on atty; 4-other good cause shown. Prohibited: when continued representation court-ordered w/ other good cause
responsibilities to the legal profession: non-legal services performed
if connected to legal services-RPC applies to both; if not connected, RPC applies only if client believed non-legal service fell under ACP and lawyer did not take steps to resolve misunderstanding
responsibilities to the legal profession: judicial or legal officials
no known false or defamatory statements about others; code of judicial conduct
responsibilities to the legal profession: prosecutors
must not: 1-file charge without probable cause or seek waiver of pretrial rights from unrepresented defendant; must make timely discovery disclosures of all evidence
responsibilities to the legal profession: reporting misconduct
mandatory if conduct raises a substantial question to lawyer’s honesty or fitness; applies to judges with judicial code of conduct
responsibilities to the legal profession: dissolution of firms
no unilateral contact by lawyer leaving firm, unless after a bona fide negotiations with firm, unable to agree on method of notice to clients, which must allow client to choose representation by anyone in or outside firm, and explain fee implications
responsibilities to the legal profession: lawyers leaving a firm
no unilateral contact by lawyer leaving firm, unless after a bona fide negotiations with firm, unable to agree on method of notice to clients, which must allow client to choose to remain at firm, choose departing firm, or outside firm; and notice of fee implications. Non-responsive clients remain with atty who initiated representation
