38 terms

Florida Professional Conduct


Terms in this set (...)

Attorney Report misconduct anonymously
NO, law says you must be available to testify against the attorney or judge
Law Firms - Partnerships
Partnerships to practice law may not include non-lawyers as partners
Law Firms - Partnerships Mixed with Non Lawyer
Must not allow a non lawyer :

1. To own any interest

2. To be a corporate director, officer, etc;; or

3. To direct or control the lawyer's professional judgment
Fee Sharing - Lawyers to Non Lawyers
May not share legal fees with non lawyers.
Fee Sharing - Lawyers to Non Lawyers (Exceptions)
The exceptions (when fees may be shared with non-lawyers) are:

1. Payments to the estate of deceased lawyers for work done before death;

2. Sale of a deceased, disabled, or
disappeared lawyer's practice;

3. Bonuses for non-lawyer employees based on extraordinary work performed;

4. Sharing of court-awarded fees with non-profit pro bono organizations; and

5. Pensions or retirement plans.
Unauthorized Practice of Law - Authorized Temporary practice is allowed when:
1. Association with and active participation by a Florida lawyer in the matter;

2. Pro hac vice admission;

3. Alternative dispute resolution proceedings in Florida for client from your home state, or when services are related to the lawyer's practice in home state, unless pro hac vice admission is required; or

4. Services are performed for a client from the lawyer's home state, or are related to the
lawyer's practice in the home state, unless pro hac vice admission is required.

o Pro hac vice admission is required if the lawyer will be appearing before a tribunal in a jurisdiction where she is not licensed.
Fees- Old Existing Clients- Communication
The lawyer need not explain the fees in writing if an understanding already exists as to the basis or rate of the fee.
Fees- new Clients- Communication
The lawyer must Communicate the basis or rate of the fee, preferably in writing, upon commencement of the representation.
Continent Fees- Prohibited
Barred in Criminal Cases

Barred in Domestic relation cases when the outcome is contingent on securing divorce, alimony, support, or a property settlement.
communication targeting a specific individual with specific legal needs.
Solicitation Permitted
Family members

Current Clients

Former clients

Pro Bono Solicitation
Solicitation - Specific Prohibitions - Personal injury or wrongful death cases
The lawyer may not send written communications
unless the accident or disaster occurred more than 30 days prior to mailing
Solicitation - Specific Prohibitions -Communication to a person already represented by counsel in specific matter
The lawyer may not send a solicitation regarding a specific matter if the lawyer knows or should know the person is already represented by counsel.
Solicitation - Specific Prohibitions - Person has requested no solicitation:
if person says "no", you cannot solicit
Solicitation - Specific Prohibitions -Violence Injunctions:
The lawyer may not contact the respondent named in an injunction for
protection when he knows or has reason to know the respondent has not been served with
notice of process.
Attorney-Client - Prospective Clients
Initial Client Meeting: Lawyer must preserve client confidences.
Attorney-Client - Client Decisions - Civil Acceptance of Settlement
Lawyer must inform client that a settlement offer has been received.

Client has ultimate authority.

A settlement made with apparent authority is binding.
Attorney-Client - Client Decisions - Criminal Cases
Client must decide whether to testify.

Client must decide whether to waive jury trial right.

Client must decide whether to accept or enter a plea agreement.
Conflict of Interest
A lawyer must NOT represent a person if

(i) the representation is directly adverse to a current client

(ii) materially limits the representation of a current client, unless the conflict is "consentable."
Consentable Conflicts
A conflict is consentable if the lawyer reasonably believes he can provide:

1. Competent and diligent representation to each affected client:

2. Representation is not prohibited by law;

3. Lawyer will not have assert a position adverse to one client when he represents two or more clients int eh same proceeding before a tribunal; and

5. Consent after consultation must be given confirmed in writing or clearly stated on the writing at a hearing.
Conflicts Involving Former Clients
Representations materially adverse to a former client in the same or substantially related matter are prohibited without informed consent.
Business Transactions with Clients
1. Transaction and terms must be Fair and reasonable, fully disclosing in WRITING.

2. Must advise client to seek independent counsel in writing; and

3. Client must consent in writing
Literary and Media Rights Rule
A lawyer is prohibited from negotiating for, or acquiring literary or media rights relating to
the representation of a client PRIOR TO THE CONCLUSION of all aspects of the matter that gave rise to the representation.
Soliciting Gifts Rule
A lawyer may not solicit substantial gift unless lawyer is related to the client.

Example 49: Lawyer says to client, "Why don't you give me your Jaguar?" RPC are violated.

Example 50: Grateful client gives lawyer his Jaguar as a present. Lawyer may accept it, but the gift is voidable by the client.
Special Rule for Third Party Payments
A lawyer may not accept payment for representation from someone other than the client

1. Client gives informed consent.

2. No interference with independent professional judgment or with client-lawyer
relationship; and

3. Confidentiality is protected
Organization as Client
Normally, the organization is the only client. A lawyer may represent both the organization and its constituents (for example, the CEO) as long as their interests are aligned.

However, dual representations always require Consent.
Imputed Disqualification - Lawyers in Firms
If a lawyer is tainted by a conflict, every lawyer in the firm is tainted by the conflict and disqualified
Imputed Disqualification - Non-Lawyers in Firms
If a non-lawyer in the firm is tainted by a conflict, the conflict is not imputed to the firm

Screening of the non-lawyer is required
Imputed Disqualification Switching Firms - Lawyers Joining New Firms
Neither the new lawyer joining a firm nor his new firm may represent a person in the:

in which the new lawyer or his old firm previously represented a client whose interests are;

2. Materially ADVERSE to that person; and

3. About whom the lawyer has ACQUIRED CONFIDENTIAL information about the former client.
Imputed Disqualification Switching Firms - Lawyers Leaving Old Firms
When a lawyer leaves a firm, the old firm may not represent persons if:

1. Their interests are MATERIALLY ADVERSE
to those of the clients of the lawyer who left;

2. The two matters are the SAME or substantially related; and

3. Any lawyer remaining in the firm has acquired confidential information about the former
Attorney-Client Privilege- - wAIVER
Only by client
Communications with Persons Represented by Counsel
A lawyer must NOT communicate with a person known to be represented by counsel, unless:

1. The opposing lawyer consents; or
2. Authorized by law.
Represented Organization
Absent consent from the organization's lawyer, there is no communication with Employees who fall into one of these three categories:

1. Employees who exercise managerial authority in the matter (e.g., CEO);

2. Any employee in the organization alleged to have committed the wrongful acts at issue; or

3. The employees who have authority to make decisions about the course of the litigation.
Represented Organization - Former employees of an organization:
Consent of the organization's lawyer is not required
False Testimony
Lawyer must take reasonable remedial measures when the lawyer knows the client intends
to lie to the tribunal.

Persuade the client not to lie;
Refuse to offer testimony; and
Elicit only truthful portions of testimony.
Communication with Judge or Official
Only allowed in:

1. In the official proceeding;
2. In writing, with a copy promptly delivered to opposing party;
3. Orally, upon notice to opposing party; or
4. As otherwise authorized by law.
Trial Publicity
• Don't say bad things about the tribunal during a trial.

• Attorney may be disciplined if statements create a substantially likelihood of materially prejudicing adjudicative proceedings.
Permissive Withdrawal by lawyer
1. No material adverse effect on the client (i.e., no harm, no foul).

2. Client insists upon a course of action that is repugnant, imprudent, or with which lawyer has fundamental disagreement.

3. Client does not pay after reasonable warning that the lawyer will withdraw.

4. The representation imposes an unreasonable financial burden on the lawyer, or is rendered unreasonably difficult by the client.

5. any good cause