90 terms

Florida Professional Responsibility

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What are the requirements to sell a law practice?
1. purchaser must be authorized to practice law;

2. written NOTICE must be sent to clients advising of sale AND their right to retain other counsel (consent to stay client presumed if no objection w/in 30 days)

3. Purchaser CAN NOT increase fees charged to clients

Pending litigation - need court approval to substitute
When will a client's consent be PRESUMED to stay w/the new law firm purchaser ?
If they do not object w/in 30 days of written notice that the firm is being sold.
How may a law firm be sold? (the breakdown)
Either to one purchaser OR break up the firm (ex. tax part, real estate part) w/pieces being sold to different purchasers
A lawyer not admitted in Florida cannot:
1. practice in florida or
2. advertise to provide legal services in florida or
3. establish an office in florida or
4. hold out to public she is admitted in florida
(example: lawyer not admitted in florida cant use a florida business address on their business car when they simply spend winter there)
What is the exception that allows a lawyer not admitted in FL to practice in FL?
Areas of pure Federal Law (immigration, patent, tax law)

A lawyer admitted in another jurisdiction may provide legal services in Florida but must be limited to those specific areas of federal law
What are the requirements for Pro Hac Vice?
A non-Florida lawyer can appear in Florida court in a particular case IF:
1. file's motion w/the court (for that case only)

However:
- 3 initial appearances in 365 day period = general practice of law and therefore, lawyer ineligible for admission pro hac vice
- an inactive, suspended, former FL bar member is not eligible
Limit of non-lawyer
Lawyer must supervise a non-lawyer staff and cannot assist non-lawyer in un-authorized practice of law
What can non-lawyer paralegal or clerk do?
work that is specifically delegated. I.E. research this issue for me.

NOT: hey figure out defenses/theory of the case
Lawyer cant be hired by group of non-lawyers to supervise
cant have one lawyer supervising 30 paralegals
Can you supervise your boss who got disbarred?
No, a suspended or disbarred lawyer cannot be employed under the supervision of another lawyer who was supervised by that individual at the time of the acts caused the suspension or disbarment.
When is temporary practice of law allowed in Florida?
1. you associate w/a Florida lawyer who is actively participating on a case;
2. services are reasonbably related to a potential or pending proceeding where a lawyer is admitted; OR
3. Services are performed for a client who resides where the lawyer is admitted, meaning its really coming out of the home state because client resides in home state where lawyer is admitted; OR
4. the act is reasonably related to home state practice (you have to interview witnesses in another state or review documents in another state)
Is pro bono work required in Florida?
No. It is aspirational.
What are the pro bono requirements in Florida?
Aspirational 20 hours or $350 per year to organizations who do pro bono...

YOU MUST REPORT THE HOURS OR MONEY TO THE BAR.
What cant your Firm Name be?
False, deceptive, or misleading

Ex. Helen & Associates (but its just me) DECEPTIVE!
Are trade names allowed in Fl for law firm?
yes, but cant be:
1. false, deceptive or misleading;
2. imply connection w/gov agency or public charitable legal service organization;
3. include lawyer holding office for any period that the lawyer is not actively and regularly practicing w/firm;
4. nonsense name - AAA to be first in phone book unless actually practice under it
Can a law firm include "legal clinic" or Legal services in its name?
Yes if it is devoted to routine legal services at reduced rates
Lawyer fees cannot be:
unreasonable
Factors used to determine whether lawyer's fees are reasonable:
time, labor, and skill required;
customary fee w/in locality for similar work;
amount involved and obtained;
experience, ability, reputation of lawyer;
difficulty of the work;
time limitations;
w/fee is fixed or contingent
What can fees not be generated through?
employment based on violating the advertising or solicitor rules or by fraud
Requirements for contingency fee
in writing, signed by client and every participating lawyer
Lawyer cannot share legal fees with non-lawyer UNLESS:
1. an agreement to pay over reasonable time after lawyers death to the lawyer's estate, or to one or more persons;
2. proportionate payment for services rendered by deceased lawyer;
3. payments pursuant to compensation or retirement plan even if based on profit sharing;
4. bonus paid to non lawyer if not tied to generation of business and not % of fees; and
5. court awarded fees shared w/nonprofit, pro bono organization that employed, retained, or recommended employment of lawyer
Lawyer fees must be:
reasonable;
communicated before or w/in reasonable time of commencing (if not regular client), preferably in writing.
A non-refundable lawyer fee must be:
in writing and explain intent of parties as to nature and amount of non-refundable fee
What is a retainer?
simply guarantees lawyers future availability, not payment for services.

If termed non-refundable, then should NOT be put in trust account. is automatically the lawyers' property
what is flat fee?
Money paid for all legal services to be provided.

If termed non-refundable, then should NOT be put in trust account. is automatically the lawyers' property
what is an advance fee?
Client pays and lawyer bills as services are provided.

Advance fee MUST BE held in client trust account and may only be withdrawn as earned.
What are the requirements for a contingent fee?
Must be In writing, signed by client and all lawyers,

Must include:
--method of fee calculation,
(35% if settled; 40% if trial) AND
--whether expenses will be deducted before or after % is taken.

At end of trial, closing statement must be given to client w/calculations and final fee
When cant a contingency fee be obtained?
Domestic Relations cases (alimony, custody, support) OR
Criminal cases.

However - can be used in an action to recover post-judgment balance of support (essentially a collection case)
Referral fees require:
client consent AND division in proportion to services performed by each lawyer; OR
written agreement w/client and each lawyer assumes joint responsibility for the representation.

In all cases, total fee must be reasonable
A mandatory Arbitration in Fee Agreement must include:
language stating client is advised to consult another lawyer before signing AND client waives any right to go to court to resolve the fee dispute
Statement of Client Rights must include:
1. client has right to cancel w/in 3 days of signing and will owe no fee;
2. disclose lawyers experience and education;
3. whether lawyer will handle case alone or bring someone in;
4. disclose clients right to closing statement;
5. disclose client's right to be fully informed;
6. disclose a client's right to make a decision regarding settlement
Personal injury & Property Damage % of recovery
Florida limits to:

Settled before def files answer-
33 1/3 % - up to a million
30% - between 1-2 million
20% - over 2 million

After def files answer (in litigation) -
40% - up to a million
30% - between 1 - 2 million
20% - over 2 million

If D. admits liability (only try damages) -
33 1/3 % - up to a million
20% between 1 - 2 million
15% - over 2 million

5% add in event of appeal
Med Mal Fee rule
Top contingency fee is 30% of first $250k and 10% of all damages after that
Personal Injury of Property Damage Contingency Referal Fee limit
there cant be more than 25% referral fee
A non-client can pay legal fees IF:
1. client consents;
2. no interference w/attorney-client relationship;
3. confidentiality is protected.
What are the special rules for attorney hired by insurance company?
Statement of client rights must indicate:
-lawyer will follow instructions from company if policy provides;
-lawyer may share confidential information from insured w/company;
-insurance policy may give company right to decide whether to settle
Fees paid w/credit card cannot...
include a credit card fee.
Use of property to pay for legal fees is allowed IF:
lawyer does not have superior knowledge as to the property's worth. Lawyer cant take advantage of client by taking property worth a lot more than fees owed if client doesn't know
Transfer of media rights is not permitted as payment until
conclusion of the case, including appeals and all BECAUSE it could influence the litigation
What does frivolous mean?
Lawyer may not bring frivolous claim.

Frivolous = to harass or not in good faith
What type of actions are NOT considered frivolous?
-position that was a loser in the past, but good faith argument for reversal;
-lawyer thinks case is loser now, but good faith argument exists;
-current facts are insufficient but discovery is upcoming.
When must a lawyer disclose adverse authority/case law?
if the authority is from the CONTROLLING jurisdiction and DIRECTLY ADVERSE to client and not disclosed by opposing counsel
Offering false or potentially false testimony...
Lawyer may NOT offer testimony he knows is false;
Lawyer w/reasonable belief that testimony is false has the OPTION to offer it.
What must a lawyer do if client wants to commit perjury ?
-tell the client not to do it or correct past testimony;
-if client refuses, lawyer should make a motion to withdraw;
-if withdraw is not possible, the lawyer should disclose the info to the Court

Exception: In criminal case, if court gives permission, use narrative approach.
What type of witness cannot be paid/given any benefit?
A FACT witness (can only pay for reasonable expenses)
Expert witness fee cannot be ...
contingent on the result
Telling a witness not to talk to the other side is prohibited UNLESS
the witness is your client, or relative, or employee of the client
Lawyer cannot be witness in trial he is an advocate in UNLESS the testimony is about:
-the matter is uncontested or ministerial; OR
-the nature and value of the attorney's legal services is at issue
- withdraw would result in substantial hardship to client because of distinctive value of lawyer or law firm to the case
If a lawyer must testify -
generally the entire firm is NOT disqualified. The lawyer that testifies cant handle the case but another lawyer can.

But cant have partners cross other partners.
unlawful destruction of documents is prohibited when...
the documents are relevant to a pending or reasonably foreseeable proceeding.
Rules for communicating w/jurors
Before trial - none allowed
During trial - none allowed
After trial - permitted only to determine whether verdict is subject to legal challenge and court approval is required
A lawyer may not give a statement to the media which...
has a substantial likelihood of materially prejudicing the trial
There is NO commingling of funds. The only exception is:
lawyer can have money in client trust account to cover bank fees
a lawyer may have _______ trust account for all clients
one
________________ protection is not allowed for client trust accounts
overdraft
An advance for fees and expenses goes :
into client trust account and is withdrawn as earned
Lawyer must keep client financial account records for :
6 years
A non-refundable retainer fee is permitted IF
confirmed in a letter to client
A lawyer MUST withdraw from representation if:
1. continuing would violate any rule;
2. lawyer is fired/discharged
3. their physical or mental condition requires withdraw;
4. client persists in action involving lawyers services which lawyer reasonably believes is criminal or fraudulent
5. client has used lawyers services to perpetrate a crime or fraud
A lawyer MAY withdraw if:
1. client insists on committing criminal or fraudulent conduct (lawyers services haven't been used to do so yet)
2. client or cause is repugnant to lawyer;
3. lawyer will suffer unreasonable $ burden
4. client insists on action which lawyer has fundamental disagreement

BUT if ordered by court to stay in, must continue representation
It is ALWAYS a clients decision to:
accept settlement - civil case
plea, waive jury, testify - criminal case
Lawyer's communication with represented person
Not allowed without other counsel's consent;
Unless person is seeking a second opinion (lawyer cant solicit)
Lawyer's communication with people of a represented corporation
Not allowed with persons having MANAGERIAL RESPONSIBILITY, unless corporate counsel consents.

No contact rule does NOT apply to former employees of the organization.
Lawyers communication with non-represented person
Lawyer cannot act like he is a disinterested party. (cant give legal advise - best to advise them to get lawyer)
Advertising rules for multi state law firm
Florida rules only apply to portions of website that directly relate to services provided by Florida bar member or relate to services provided in Florida

FL rules don't apply to broadcasts in another state (even if firm has FL member) IF the ad is not broadcast in FL or targeted at FL residents
National media ads
FL rules do not apply as long as ad says "cases not accepted in Florida"

FL rules do apply to lawyers not admitted in florida who target FL residents for legal employment (IL attorney cant seek work in miami herald on pro hac vice basis)
Exception: class actions
Full time judge or court officer CAN NOT
practice law
If your firm has multiple locations...
You Need to list where the specific attorneys are licensed to practice
Responsibility of lawyer with supervisory authority ...
Must ensure the firm has in effect measure giving reasonable assurances that all lawyers conform to and non-lawyers compatible with RPC
Responsibility of Lawyer who directly supervises
i. Must ensure lawyer conforms or nonlawyer's conduct compatible with RPC
ii. If you hire outside assistance of nonlawyer, must ensure carried out with accordance of professional obligations under RPC
When will a lawyer be responsible for the misconduct of another?
if they order,
ratify, or
fail to take action to avoid or mitigate wrongful conduct, you are responsible for it.
When is a subordinate lawyer responsible for acting the direction of another?
still responsible but does not violate RPC if acting in accordance with a:
Reasonable resolution of an arguable question of professional duty
Do not advertise lawyer is "specialized" unless:
1. lawyer is certified by FL Bar, another comparable state bar, or organization certified by FL Bar; AND
2. name of organization is included
What must every ad include?
1. Name of at least lawyer, firm, directory or referral service responsible for the content, AND
2. Office location of the lawyer who will perform the services advertised
What is the process of having your ad evaluated?
1. Must file a copy with FL Bar 20 days before first dissemination
2. Bar must notify lawyer if in compliance with rules within 15 days of receipt of the filing. If No response, lawyer is ok
3. Bar can change its finding and send lawyer letter of noncompliance
What are the exceptions to mandatory filing of ads with florida bar before disseminating?
a. If only presumptively valid content - don't have to file
b. Info on website
c. Info mailed to existing and former clients, other lawyers
d. Safe Harbor - can file for advisory opinion
Once your ad is disseminated, do you have to keep a copy of it?
YES for 3 years and include where and when it was used as ad
Payment for ads
-lawyer cant pay for another lawyers ads
-non-lawyer cant pay for lawyer ads
You cannot solicit someone unless:
you have a family,
personal, or
prior professional relationship with them.

solicit = for money.
if for free its ok
if because you want to take case to S.Ct. its ok
Permitted written communication must include:
must wait 30 days from occurrence of accident.

Must include:
"advertisement" on envelope face and each enclosure in ink contrasting with background and other text on same page
-- if self mailing - on address panel and inside brochure or pamphlet and each enclosure
-- if email - subject line must begin with Advertisement

CAN NOT resemble legal pleading or document

if contract included -the top of each page must say "SAMPLE" and "DO NOT SIGN" on signature line

First sentence must read: "if you have retained a lawyer for this matter, please disregard this letter"
-disclose how u learned of the matter
-explain if matter will be referred to another lawyer
if your client is under a disability:
-maintain normal attorney-client relationship to extent possible
-seek an appointment of guardian or protective action ONLY IF reasonably believe client cant adequately act in their own interest
Lawyer cannot enter into business transaction with client or acquire ownership interest adverse to the client UNLESS:
i. Transaction and terms are fair and reasonable to client and fully disclosed in writing in manner reasonably understood;
ii. Advised in writing to seek independent counsel and given a reasonably opportunity to do so;
iii. And client gives informed consent in writing to essential terms, including whether attorney is representing the client in the transaction
Lawyer cant prepare an instrument giving gift to lawyer or person related to lawyer, UNLESS
Only valid if close familial relationship
lawyer may not provide financial assistant to client UNLESS
i. Advance court cost and expense litigation, repayment which may be contingent upon outcome; or
ii. its for Court costs and expenses on behalf of indigent client
Don't make aggregate settlement or plea UNLESS:
obtain informed consent in signed writing, disclosing nature of settlement
don't make an agreement to limit your malpractice UNLESS
-allowed by law; and
-client is independently represented
A lawyer cannot settle claim for malpractice with an unrepresented client or former client without advising that person:
i. In writing that
ii. Independent counsel is appropriate
If the adverse lawyer in an action is related by blood:
a. Need client's consent in writing or on the record, and
b. Conflict is not imputed to other lawyers at firm
Former client conflicts - lawyer who has represented a client must not:
a. Thereafter represent another client in the SAME OR SUB. RELATED MATTER in which the client's intersts are materially adverse to the interest of the former client, UNLESS the former client gives informed consent

b. Use info obtained to disadvantage of former client unless permitted by the RPC or when the info has become generally known; or

c. Reveal information relating to the representation unless rules permit or require
a lawyer must not act as a third party neutral (mediate between two parties) UNLESS:
- Must inform she is not representing them
- If she knows or reasonably should know a party does not understand, must explain the difference between her role as neural vs. counsel