Florida Professional Responsibility
Terms in this set (22)
A reasonable fee is determined by factors such as the matter of time spent on the matter, the nature of the issue (complexity), lawyer's skill experience and reputation), and what is customarily charged in the area.
A contingency fee is when the lawyer is paid a percentage of recovery if a client is successful. Contingency fees are proper when the attorney's percentage is consistent with the standards set out by FL statutes and the case is not a domestic relations or criminal matter. A contingency fee agreement must be in writing and signed by the client and every practicing lawyer. The writing must state the method of calculation (the percentage in the event of settlement/trial/appeal), whether or not the expenses will be deducted BEFORE or AFTER the percentage is take. At the conclusion of the case, there must be an additional closing statement with calculations and final fee must be provided.
Client Canceling Representation Under Contingency Agreement
Florida law requires contingency agreements to include wording that permits the client to cancel the contract within 3 business days of signing the agreement, but e must do so in writing. The client owes no fees to the attorney billed during the three day period, but must repay funds advanced by the attorney to other people in connection with the case.
Sharing fees with lawyers in the same firm is permitted (even if the lawyer did NO work on the case). however, sharing fees with a lawyer in a different firm is only allowed if the total fee is reasonable and the fee is split based on the amount of work, or it is approved by the client in writing, asserting the lawyers joint responsibility and explanation for the proposed split. The percentage for the split depends on the role of the lawyer. A lawyer that assumes primary responsibility for services gets a minimum of 75% of the total fee, the lawyer who assumes secondary responsibility, gets a maximum of 25% of the total fee. A fee in excess of 25% is presumed excessive. As for sharing fees with non-lawyers, this is NOT permitted.
Accepted Fees from Third Parties
A lawyer may accept fees from third parties as long as the lawyer provides the client with informed consent and maintains independence of judgement and client confidentiality. The consent does not have to be signed or in writing, and the rules of confidentiality still apply.
A lawyer may not make a false, misleading or deceptive communications about the lawyer's services. When a lawyer uses a photograph in his ad, it must be simply a photo of the lawyer or other lawyers who are members of or employed by the firm against a plain background consisting of a solid color or a plain unadorned set of law books. When a lawyer advertises his fee in the yellow pages or other media, not published more frequently than once a year, he must honor the advertised fee or range of fees for no less than one year following pulication.
What is NOT allowed in Solicitation
Solicitation is prohibited if it is for pecuniary (financial) gain. However, solicitation will be permitted if the motive is not financial gain (public interest exception). Solicitation includes procurement in person, by telephone, fax, and email. Solicitation by mail involves a letter sent to a person who the lawyer knows needs a lawyer. This cannot be sent within 30 days after a personal injury or wrongful death. Additionally, the letter cannot be sent to a person who is already represented and cannot send to a person whose physical, emotional or mental state is such that client could not exercise reasonable judgement.
Solicitation that is allowed
If a lawyer is soliciting an individual he knows needs a lawyer, the lawyer must wait 30 days if the action involves personal injury or wrongful death. The letter must state "ADVERTISEMENT" in red on the envelope. The letter cannot reveal the legal problem. The lawyer must include a statement of the lawyer's qualifications. the retainer agreement found therein must be marked "sample" and "do not sign", and the lawyer must disclose how the lawyer learned of the problem.
Business Deals with Clients (Conflicts on Interest)
A lawyer shall not enter into a business transaction with a client or knowingly acquire ownership, possessory, security or other pecuniary interest adverse to a client, unless the transaction and terms are fair and reasonable to the client, fully disclosed and transmitted in writing to the client in a manner reasonably understood by the client. The lawyer must also advise the client that he should seek independent legal counsel and the client has to be given an opportunity to do so. The client must give informed consent, signed in a writing to the essential terms of the transaction and the lawyer's role, including whether the lawyer is representing the client. A lawyer can attach a lien to secure fees and expenses, but not on a property that is the subject matter of the litigation.
Two Clients wanting to hire the same lawyer (Conflict of Interest)
A lawyer cannot represent two clients if: 1) the client's interests are directly adverse, or 2) the lawyer's representation of one client creates a substantial risk of material limitation of ability to represent the other. Clients can waive this conflict by consenting, but only if the attorney reasonably believes that there will be no adverse effect. The waiver must be based on informed consent, in writing, or stated on the record. The lawyer must also explain to each of the clients the implication of common representation and the advantages and risks involved.
Lawyer's New Client Suing Former Client (Conflict of Interest)
A lawyer cannot represent a client who is suing a former client in the same or substantially related matter without the consent of the former client. the attorney may not use knowledge gained in the course of representing the former client against the former client for the benefit of the current client. If a lawyer is disqualified from representation under this rule, no in a firm which that lawyer is associated with may knowingly undertake or continue representation in such a matter, unless both the affected client and the prospective client given informed consent in writing. While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by the rules.
Under Florida law, a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is prospective client, and the lawyer shall not divulge or use information gained during such discussion.
Lawyers Contacting Adverse Partes
A lawyer may not speak to a party that is represented by counsel about the subject matter of the litigation without the represented party's lawyer's consent. In dealing on behalf of a client with a person not represented by counsel, a lawyer may speak to them, but shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstood the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. In Florida, a lawyer is allowed to talk to a former employee of a business even if the employees actions, when previously employed, are related to the litigaiton.
A lawyer shall not reveal confidential communications unless the client consents. The lawyer has a duty confidentiality that applies even if the lawyer is NOT hired, and continues even after the relationship is over. The court will find that there are a few exceptions to the disclosure of confidential communications. A lawyer MUST reveal communications to: prevent future crime, prevent the death or substantial bodily injury of someone, or if ordered by the court. A lawyer MAY reveal the communications if: the lawyer is being sued by the client.
A lawyer shall provide competent representation to a client, which required legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Factors that determine the required level of legal knowledge and skill include: the complexity of the matter, the attorney's experience, the feasibility in referring the matter, the preparation the lawyer is able to give to the matter, etc.
Prevention of Unlawful Activity
A lawyer may not permit any witness, including a criminal defendant, to commit perjury. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer has offered material evidence and thereafter comes to know its falsity, the lawyer shall take reasonable remedial measures.
Lawyers Destroying Client's Documents
In Florida, a lawyer shall not unlawfully destroy, conceal,or alter a document that the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding. In the event that opposing counsel did not specify that the type of document be turned over during discovery, the attorney cannot destroy it.
Financial Help to Clients
A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter, and a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client, but he may not advance personal costs to the client such as medical or living expenses.
The Client's Property
A lawyer must hold in trust, separate from the lawyer's own property, any funds and property of a client or third person that are in a lawyer's possession in connection with a representation (costs, expenses, etc.) Such funds must be kept in either a separate bank/savings account or elsewhere provided that the account is clearly labeled and designated as the trust account. Money or other property entrusted to an attorney for a specific purpose is held in trust and must be applied only to that purpose. Upon receiving the funds, the lawyer must promptly notify the client/third person.
Assisting in Criminal Act
A lawyer cannot assist or participate in assisting someone in committing a crime. If a client represented by lawyer persists in using the lawyer's services to commit an illegal act that the lawyer reasonably belies is criminal or fraudulent then the lawyer may (but is not required to) withdraw.
Lawyer Drafting Wills and Trusts
Under the Florida Probate Cost, if an attorney drafts a will and a gift is made to the attorney in that will gift is deemed void, unless the attorney is family member of the testator. However, if such a void gift is conveyed to a subsequent bona fide purchaser for value, then the subsequent bona fide purchase take property free and clear of any liability.
Lawyer Limiting Liability
A lawyer may not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless such agreement is permitted by law, and the client is independently represented by counsel when signing such and agreement (independent counsel must be present).
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