Professional Responsibility (Kaplan) Flashcards
An applicant for admission to the bar, or a lawyer in connection with a disciplinary matter, shall not:
1) Knowingly make a false statement of material fact;
2) 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; OR
3) Commit an act that adversely reflects on the applicant’s fitness to practice law.
Lawyers admitted to practice law in FL are subject to the disciplinary authority of FL:
1) Whether or not they are acting in a professional or some nonprofessional capacity; and
2) Whether or not their conduct occurs in FL or out-of-state.
Note: A lawyer may be admitted to practice law in FL on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis.
A lawyer admitted and in good standing in another jurisdiction may provide legal services on a temporary basis in FL if the services:
1) are undertaken w/ a lawyer who is admitted to practice in FL and who actively participates in the matter;
2) are in or are reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer or a person the lawyer is assisting is authorized by law or order to appear in such proceeding or reasonably expects to be authorized; or
3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction and the services are not services for which the forum requires pro hac vice admission.
What are the forms and types of professional misconduct?
1) Violations of the Rules of professional misconduct;
–This type of misconduct encompasses not only direct violations of the Rules but also attempts to violate the Rules and knowingly assisting or inducing others to violate the Rules.
2) Criminal acts that reflect adversely on a lawyer’s honesty, trustworthiness, and fitness as a lawyer.
3) Conduct involving dishonesty, fraud, or deceit.
4) Conduct that is prejudicial to the admin. of justice; and
5) Statements to the effect or implying an ability to influence a govt agency or official.
–Note: Professional misconduct only requires that there be conduct deemed by the Rules to be unfit for the legal profession.
–A lawyer’s mere negligence does NOT constitute professional misconduct.
–Attempts to violate a rule of professional conduct are defined as a type of “misconduct”.
Do lawyers have a duty to report professional malpractice?
In general, lawyers MUST inform the appropriate professional authority if they have KNOWLEDGE of a violation of a rule of professional misconduct that raises a SUBSTANTIAL QUESTION as to a lawyer’s honesty, trustworthiness, or fitness as a lawyer.
–Note: The only exception is where doing so would require disclosure of a client’s confidential information. (A lawyer’s duty to keep confidential a client’s information is paramount)
–A lawyer’s obligation to report prof. misconduct is NOT triggered by a “belief” but rather by “KNOWLEDGE”.
–The lawyer’s obligation to report is triggered when there is knowledge of a violation that raises a SUBSTANTIAL question as to the lawyer’s fitness to practice law.
In disciplinary proceedings against himself or another lawyer, a lawyer generally must:
1) Respond truthfully to requests for information; and
2) Otherwise cooperate in the investigation.
–Exceptions: However, lawyers may:
(i) assert the 5th amendment privilege against self-incrimination; and
(ii) invoke the duty of confidentiality.
Responsibilities of Partners, Managers, and Supervisory Lawyers
1) Law firm partners and lawyers with similar managerial authority within the firm must make REASONABLE EFFORTS to ensure that the firm has in effect MEASURES AND POLICIES giving reasonable assurances that all lawyers therein conform to the Rules.
2) Lawyers having direct supervisory authority over another lawyer must make REASONABLE EFFORTS to ensure that the other lawyer conforms to the Rules.
When will lawyers be responsible for another lawyer’s violation of the Rules?
If they:
1) ORDER the specific conduct;
2) RATIFY the conduct involved; or
3) fail to take reasonable REMEDIAL ACTION.
Responsibilities of a Subordinate Lawyer
A lawyer is bound by the Rules, notwithstanding that the lawyer acted at the direction of another person.
***However, a subordinate lawyer does not violate the Rules if that lawyer acts in accordance w/ a supervisory lawyer’s REASONABLE RESOLUTION of an ARGUABLE QUESTION of professional duty.
Responsibilities Regarding Non-Lawyer Assistants
The partners and other lawyers in a firm must make reasonable efforts to insure that the firm has in effect measures giving REASONABLE ASSURANCE that the non-lawyer’s conduct is COMPATIBLE w/ the professional obligations of the lawyer.
Similarly, lawyers having DIRECT SUPERVISORY AUTHORITY over a non-lawyer must make reasonable efforts to ensure that the non-lawyer’s conduct is compatible w/ the professional obligations of the lawyer.
When will lawyers be responsible for the conduct of a non-lawyer assistant?
Lawyers be responsible for the conduct of a non-lawyer assistant if it would have been a violation of the Rules had it been engaged in by a lawyer and if they:
1) ORDER the specific conduct;
2) RATIFY the specific conduct; or
3) Fail to take reasonable REMEDIAL ACTION.
–This is the same standard as that for violations by subordinate lawyers.
–Work done by a lawyer’s paralegal or assistant must be reviewed by the lawyer, and it is the lawyer who is ULTIMATELY RESPONSIBLE for their work product.
Rules Concerning Legal Ads in Florida: Who do they apply to?
In general, the Rules concerning advertisements apply to all lawyers who advertise that they provide legal services in FL or whose advertisements seeking legal employment target FL residents.
This rule does NOT apply to:
1) Ads in another jurisdiction;
2) Communications between a lawyer and that lawyer’s own family members; or
3) Communications between a lawyer and a prospective client if made at the request of that prospective client.
Rules Concerning Legal Ads in Florida: Basic Content Requirements
Generally, all advertisements and unsolicited written communications must include:
1) the name of at least 1 lawyer or the law firm (or legal referral service) responsible for the ad’s content; and
2) the location of the lawyer’s or law firm’s practice.
Notes:
–If written in the ad, the required information must be PROMINENT AND CLEARLY LEGIBLE.
–If spoken in the ad, the required info must be INTELLIGIBLE.
–The required info must appear in each language used in the ad.
Rules Concerning Legal Ads in Florida: General Prohibitions
Lawyers may NOT engage in advertising that is:
1) Deceptive or inherently misleading;
2) Potentially misleading; or
3) Unduly manipulative or intrusive.
Deceptive or Inherently Misleading Advertising
An ad is deceptive or inherently misleading if it:
1) contains a material statement that is factually or legally inaccurate;
2) omits information whose non-communication makes the information supplied misleading; or
3) implies the existence of a material non-existent fact.
Examples of Deceptive or Inherently Misleading Advertising
1) Ads that can reasonably be interpreted by prospective clients as a PREDICTION OR GUARANTEE OF SUCCESS (or of specific results);
2) Ads that refer to PAST SUCCESS OR INCLUDE COMPARATIVE CLAIMS unless such info is objectively verifiable;
3) Ads that include statements characterizing a lawyer’s or law firm’s REPUTATION OR RECORD SKILLS, EXPERIENCE, unless such statements are objectively verifiable;
4) Ads that have an image or voiceover that creates the erroneous impression that the person shown or speaking is the advertising lawyer or a lawyer or employee of the advertising firm, unless the erroneous impression can be resolved by a PROMINENTLY DISPLAYED NOTICE saying “not an employee or member of the law firm”;
5) Ads that have a dramatization of an event or actor purporting to be engaged in a particular profession or occupation unless there is a PROMINENTLY DISPLAYED NOTICE saying “dramatization: not an actual event” or “actor: not actual…”;
6) Ads that state or imply that the lawyer will engage in conduct or tactics that are prohibited by the Rules or any law or court rule;
7) Ads that include testimonials (w/ some rare exceptions); or
8) Ads that include reference to a judicial, legislative, or executive title unless accompanied by clear modifiers and placed subsequent to the person’s name.
Examples of Potentially Misleading Advertising
Ads that:
1) are subject to MULTIPLE REASONABLE INTERPRETATIONS at least one of which is materially misleading;
2) are literally accurate but COULD REASONABLY MISLEAD a prospective client regarding a material fact;
3) refer to a LAWYER’S MEMBERSHIP in or recognition by an entity unless that entity is recognized within the legal profession as being a bona fide organization that applies objective criteria uniformly and that includes a reasonable cross-section of the legal community;
4) state that the lawyer is board-certified, a specialist, or an expert unless the lawyer has been certified by the FL Certification Plan or by an organization accredited by the ABA or the FL Bar; or
5) give information about the lawyer’s fee, including those that indicate no fee will be charged in the absence of a recovery, unless the ad discloses all fees and expenses for which the client might be liable and any other material information relating to the fee.
Examples of Unduly Manipulative or Intrusive Advertising
Ads that:
1) Use an image, sound, video or dramatization to solicit a prospective client by an APPEAL TO THE EMOTIONS;
2) Use an AUTHORITY FIGURE (or an actor portraying an authority figure) to endorse or recommend the lawyer;
3) contain the voice or image of a CELEBRITY; or
4) offer consumers an ECONOMIC INCENTIVE to employ the lawyer or review the lawyer’s advertising.
Who may not pay for a lawyer’s advertising?
A lawyer’s advertising may NOT be paid for by:
1) A lawyer of another firm; or
2) a non-lawyer?
What does the term “solicit” mean?
The term “solicit” includes contact in person, by telephone, telegraph, or fascimile, or by other communication directed to a specific recipient and includes any written form of communication, including any electronic mail communication, directed to a specific recipient.
Prohibitions Against Solicitation
A lawyer shall not:
1) Solicit professional employment from a prospective client w/ whom the lawyer has no family or prior professional relationship if a SIGNIFICANT MOTIVE for the lawyer’s doing so is PECUNIARY GAIN;
2) Permit employees or agents to solicit on the lawyer’s behalf; and
3) Charge or collect a fee for professional employment in violation of this Rule.
Unsolicited Written Communications
Lawyers shall not send, or knowingly permit to be sent, on their behalf, an unsolicited written communication directly or indirectly to a prospective client for the purpose of obtaining professional employment if:
1) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, UNLESS THE ACCIDENT OR DISASTER OCCURRED MORE THAN 30 DAYS PRIOR TO THE MAILING of the communication;
2) the written communication concerns a specific matter and the lawyer knows or reasonably should know that the person to whom the communication is directed is REPRESENTED BY A LAWYER IN THE MATTER;
3) it has been made known to the lawyer that the person DOES NOT WANT TO RECEIVE SUCH COMMUNICATIONS from the lawyer;
4) the communication involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence;
5) the communication contains deceptive, inherently misleading, potentially misleading, unduly manipulative, or intrusive material; or
6) the lawyer knows or reasonably should know that the physical, emotional, or mental state of the person makes it unlikely that the person would exercise reasonable judgment in employing a lawyer.
Requirements for Written Communications to Prospective Clients for the Purpose of Obtaining Professional Employment
1) each page of such communication and the face of an envelope containing the communication must be REASONABLY PROMINENTLY MARKED “ADVERTISEMENT” in ink that contrasts w/ both the background it’s printed on and the other text appearing on the same page;
2) every written communication must be accompanied by a STATEMENT detailing the background, training, and experience of the lawyer or law firm;
3) the 1st sentence of any written communication prompted by a SPECIFIC OCCURRENCE involving or affecting the intended recipient of the communication or a family member must be “if you have already retained a lawyer for this matter, please disregard this letter”; and
4) any written communication prompted by a SPECIFIC OCCURRENCE involving or affecting the intended recipient of the communication or a family member must DISCLOSE HOW THE LAWYER OBTAINED THE INFORMATION prompting the communication.
Evaluation of Advertisements
Subject to certain exemptions, lawyers who advertise services shall file with the FL Bar a copy of each advertisement AT LEAST 20 DAYS prior to the lawyer’s first dissemination of the advertisement.
Firm Names and Letterhead
1) Lawyers shall not use a firm name, letterhead, or other professional designation that is false, misleading, or deceptive.
2) Lawyers may practice under a trade name if the name is not deceptive and does not imply a connection w/ a govt agency or a public or charitable legal services org. or that the firm is something more than a private law firm;
3) A lawyer in private practice may use the term “legal clinic” or “legal services” in conjunction w/ the lawyer’s own name if the lawyer’s practice is devoted to providing routine legal services for fees lower than the prevailing rate for such services in the community;
4) The name of the lawyer holding a public office shall not be used in the name of the law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing w/ such firm.
Duty of Competence
A lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Duty With Respect to Fees
Lawyers shall not enter into an agreement for, charge, or collect a CLEARLY EXCESSIVE FEE OR COST.
–A fee is clearly excessive when it 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.
Contingent Fees
Writing Requirement: Contingent fee arrangements must be in a writing that states:
1) the method by which the fee is to be determined;
2) the percentages the lawyer shall receive in the event of settlement, trial, or appeal;
3) when the attorney will be paid; and
4) the expenses that are to be deducted from the recovery and whether those expenses will be deducted before or after the contingent fee is calculated.
–Upon conclusion of the contingent fee matter, the lawyer must provide the client w/ a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
–In a tort, personal injury, products liability, or wrongful death case, the contract between the lawyer and the client must contain certain provisions stating that (1) the client read and understood the rights set forth therein, (2) signed the statement and received a signed copy; (3) the contract may be canceled by written notice within 3 business days of the date the contact was signed, etc.
Prohibited Contingent Fees
1) In a domestic relations matter, fees may NOT be contingent upon the securing of a divorce, an amount of alimony or support, or a property settlement.
2) No contingent fee is allowed for representation of a criminal D.
Sakefeeping Property
In general, a lawyer must HOLD IN TRUST, SEPARATE FROM THE LAWYER’S OWN PROPERTY, any funds and property of a client or 3rd person that are in a lawyer’s possession in connection w/ a representation (e.g., advances for fees, costs, and expenses)
–However, a lawyer may maintain funds belonging to the lawyer in the client trust account in an amount no more than is reasonably sufficient to PAY BANK CHARGES relating to the trust account.
–Upon receiving funds / property in which a client or 3rd party has an interest, a lawyer must PROMPTLY NOTIFY such person (and promptly deliver the same to which the person is entitled to receive).
–Upon request by a client or 3rd person, a lawyer must promptly render a full accounting regarding such property.
Disputed Ownership of Trust Funds
When in the course of representation, a lawyer is in possession of property in which both the lawyer and another person claims interests, the property must be treated as TRUST PROPERTY.
–The portion belonging to the lawyer or law firm may be withdrawn within a reasonable time after it becomes due UNLESS the right of the lawyer or law firm to receive it is DISPUTED.
Trust Accounting Records and Procedures
1) FL imposes STRICT RECORDKEEPING REQUIREMENTS in addition to the requirement to segregate and pay interest on client funds.
2) Lawyers must maintain a separate bank account or accounts in the name of the lawyer of law firm that is CLEARLY LABELED AND DESIGNATED AS A “TRUST ACCOUNT”.
3) Lawyers must:
–(i) do MONTHLY reconciliations of all trust accounts;
–(ii) prepare, at least ANNUALLY, a detailed listing identifying the balance of the unexpended trust money held for each client;
–(iii) annually file with the FL Bar a trust accounting certificate showing compliance w/ the Rules; and
–(iv) keep the record for 6 years.
Prospective Clients
1) A person who discusses w/ a lawyer the possibility of forming a client-lawyer relationship w/ respect to a matter is a prospective client, and the lawyer must not divulge or use the information gained from the consultation.
2) In general, a lawyer shall not represent a client w/ interests MATERIALLY ADVERSE to those of a prospective client in the same or 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.
– However, representation in this circumstance is permissible if BOTH the affected client and the prospective client have given INFORMED CONSENT, CONFIRMED IN WRITING.
Conflict of Interest: Prospective Client; Lawyer Disqualification
In general, if a lawyer is disqualified from representation under the Rules, no lawyer in that lawyer’s firm may knowingly undertake or continue representation in such manner.
HOWEVER, representation by the lawyer’s firm in this circumstance is permissible if:
1) The lawyer who received the information took REASONABLE MEASURES TO AVOID EXPOSURE TO MORE DISQUALIFYING INFORMATION than was reasonably necessary to determine whether to represent the prospective client;
2) The disqualified lawyer is TIMELY SCREENED FROM ANY PARTICIPATION in the matter and is apportioned no part of the fee; and
3) WRITTEN NOTICE is promptly given to the prospective client.
Conflict of Interest: Current Client
In general, a lawyer must not represent a client if:
1) the representation will ADVERSELY AFFECT another client; or
2) there is a SUBSTANTIAL RISK that the representation will be MATERIALLY LIMITED by the lawyer’s responsibility to another client, a former client, a third person, or by a personal interest of the lawyer.
However, a lawyer may represent the client if the following conditions are met:
a) the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client;
b) the representation is not prohibited by law;
c) the representation does not involve a position adverse to another client when the lawyer represents both clients in the same proceeding before a tribunal; and
d) each affected client gives INFORMED CONSENT, CONFIRMED IN WRITING or clearly stated on the record at a hearing.
–When a lawyer represents multiple clients in a single matter, the lawyer must explain to each client the implication of the common representation and the advantages / risks involved.
–A lawyer related to another lawyer as a parent, child, sibling or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.
Prohibited Business Transactions
A lawyer shall not enter into a business transaction w/ a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, except a lien granted by law to secure a lawyer’s fee or expenses, UNLESS:
1) the transaction and terms are FAIR AND REASONABLE to the client, FULLY DISCLOSED AND TRANSMITTED IN WRITING to the client in a manner that can be reasonably understood;
2) the lawyer advises the client in writing that he should seek advice of INDEPENDENT COUNSEL and the client is given the opportunity to do so; and
3) the client gives INFORMED CONSENT, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.
Providing Financial Assistance to a Client
A lawyer shall not provide financial assistance to a client in connection w/ pending or contemplated litigation, except that:
1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
2) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
Compensation for Representing a Client From Someone Other Than the Client
A lawyer may not accept compensation for representing a client from someone other than the client, UNLESS:
1) the client gives INFORMED CONSENT;
2) the lawyer MAINTAINS HIS INDEPENDENCE OR PROFESSIONAL JUDGMENT w/ no interference from the 3rd party; and
3) information relating to the representation of the client is protected as required under client confidentiality.
Aggregate Settlements; Lawyer Representing 2+ Clients
A lawyer who represents 2+ clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contendere pleas, UNLESS EACH CLIENT GIVES INFORMED CONSENT, in a writing signed by the client.
–The lawyer’s disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement.
Agreements Prospectively Limiting Lawyer’s Liability to Malpractice
A lawyer shall not make 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 shall not settle a claim for liability with an unrepresented client or former client w/o first advising that person in writing that the client should obtain independent counsel.
When MUST a lawyer either not represent a client or withdraw from the representation?
1) The representation will result in a violation of the Rules;
2) The lawyer’s ability to represent the client is physically or mentally impaired;
3) The client persists in maintaining a course of action that involves the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent and the client refuses to disclose and rectify the crime or fraud; or
4) The client has actually used the lawyer’s services to perpetrate a crime or commit fraud and refuses to disclose and rectify the behavior.
When MAY a lawyer withdraw from the representation of a client?
1) The withdrawal can be accomplished w/o materially adversely affecting the interests of the client;
2) The client insists on taking action that the lawyer finds repugnant, imprudent or with which the lawyer has a fundamental disagreement;
3) The client fails substantially to fulfill an obligation regarding the lawyer’s services and the client has been given a 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;
5) The representation has been rendered unreasonably difficult by the client; or
6) For good other cause.
Note: If required to do so, a lawyer shall give NOTICE or REQUEST PERMISSION from the tribunal BEFORE terminating representation.
–If ordered to continue representation, the lawyer must do so.
