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Florida parts edited > Professional Conduct > Flashcards

Professional Conduct Flashcards

1
Q

regulatory controls: general sources of regulation

A

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

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2
Q

admission requirements to FL Bar

A

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

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3
Q

disciplinary process in general

A

every atty s charged with knowledge of the rule

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4
Q

disciplinary process: general prohibitions

A

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

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5
Q

disciplinary process: procedure

A

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

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6
Q

disciplinary process: sanctions

A

disbarment; suspension; public reprimand or admonishment; probation; enhancement programs

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7
Q

unauthorized practice of law

A

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

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8
Q

Law firms in general

A

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.

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9
Q

supervising attorneys

A

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.

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10
Q

subordinate attorneys

A

generally liable for own actions unless instructed by supervisor and arguably not a violation of the rule

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11
Q

no contractual restrictions on right to practice in a law firm

A

unless it concerns retirement benefits or settlement of clent controversy

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12
Q

sale and purchase of law practice

A

allowed with 30 day notice to client to obtain consent; pending litigation requires court approval; existing fee arrangement is binding

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13
Q

advertising and solicitation in general

A

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.

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14
Q

advertising and solicitation: prohibitions and limitations

A

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.

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15
Q

advertising and solicitation: basic rule

A

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

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16
Q

advertising and solicitation: content for advertisements and unsolicited written communications

A

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.

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17
Q

pro hac vice

A

admission to practice in another district; when in front of tribunal it is required; fill out a form and pay a fee

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18
Q

advertising and solicitation: rules for advertisements only

A

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

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19
Q

advertising and solicitation: internet communications

A

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.”

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20
Q

advertising and solicitation: evaluation of advertisements

A

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

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21
Q

advertising and solicitation: payment

A

no payments for referrals and no payment for another lawyer’s advertisement not within same firm

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22
Q

advertising and solicitation: solicitation definition

A

individual contact with the intent to entice the person to hire you; compliance by attorney or agent.

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23
Q

advertising and solicitation: prohibited solicitation

A

solicitation to prospective clients with no prior relationship and significant motive is pecuniary gain

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24
Q

advertising and solicitation: permitted solicitation

A

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

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25
Q

advertising and solicitation: referral services

A

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.”

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26
Q

attorney certifications

A

FL certification standards are met and “Board Certified ____ Lawyer” “Specialist in ____” or “B.C.S. _____”

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27
Q

atty-client relationship in general

A

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

28
Q

atty-client relationship: accepting representation

A

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

29
Q

atty-client relationship: scope of representation

A

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

30
Q

atty-client relationship: conflicts of interest in general

A

atty must avoid relationships that will adversely affect his ability to exercise independent and professional judgment

31
Q

atty-client relationship: adverse interests

A

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

32
Q

atty-client relationship: other prohibited transactions

A

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

33
Q

atty-client relationship: former clients

A

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

34
Q

atty-client relationship: prospective clients

A

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

35
Q

atty-client relationship: mediators

A

3rd party neutrals-must explain NO representation and explain differences in roles

36
Q

atty-client relationship: atty testimony

A

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

37
Q

atty-client relationship: corporate representation

A

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

38
Q

atty-client relationship: imputed disqualification

A

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

39
Q

atty-client relationship: gov’t attys

A

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

40
Q

Fees and Costs: generally

A

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

41
Q

Fees and Costs: contingency fees

A

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

42
Q

Fees and Costs: referral fees

A

unethical and prohibited

43
Q

statement of clients rights: atty relationship

A

client must always receive a statement of client’s rights

44
Q

Fees and Costs: mandatory arbitration of fee disputes

A

advise client of right to consult independent lawyer before signing and explicitly waives any right to go to court and resolve fee disputes

45
Q

Fees and Costs: writing

A

duty to communicate fees, preferably in writing, non-refundable must be in writing

46
Q

Fees and Costs: property as a fee

A

may accept property as a fee if not a conflict of interest in business transaction or improper proprietary interest

47
Q

responsibilities to client: competence

A

legal knowledge, skill, thoroughness, preparation, prompt actions that keep client reasonably informed

48
Q

responsibilities to client: confidentiality

A

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

49
Q

responsibilities to client: disclosure of confidential information

A

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

50
Q

responsibilities to client: confidentiality and prospective clients

A

confidentiality in consultation

51
Q

trust accounts of clients

A

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

52
Q

duties during representation: in general

A

must be honest, fair, and not undertake frivolous claims or defenses

53
Q

duties during representation: 3rd parties

A

no action that will embarrass, delay or burden, or violate legal rights

54
Q

duties during representation: represented parties

A

lawyer prohibited from communicating with represented person about subject of litigation, unless that person’s counsel grants consents

55
Q

duties during representation: unrepresented parties

A

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

56
Q

duties during representation: inadvertent communications

A

documents inadvertently received by atty require prompt notification to sender

57
Q

duties during representation: candor towards tribunal

A

MUST NOT: 1-make false statement; 2-fail to disclose material facts; 3-fail to disclose controlling legal authority; or 4-offer false evidence

58
Q

duties during representation: fairness to opposing counsel

A

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.

59
Q

duties during representation: jury

A

no improper contact w/ jury; NO extrajudicial statements (trial publicity) that would materially prejudice the pending proceedings

60
Q

duties during representation: termination

A

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

61
Q

responsibilities to the legal profession: non-legal services performed

A

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

62
Q

responsibilities to the legal profession: judicial or legal officials

A

no known false or defamatory statements about others; code of judicial conduct

63
Q

responsibilities to the legal profession: prosecutors

A

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

64
Q

responsibilities to the legal profession: reporting misconduct

A

mandatory if conduct raises a substantial question to lawyer’s honesty or fitness; applies to judges with judicial code of conduct

65
Q

responsibilities to the legal profession: dissolution of firms

A

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

66
Q

responsibilities to the legal profession: lawyers leaving a firm

A

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

Florida parts edited (22 decks)

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