56 terms

Florida Professional Responsibility


Terms in this set (...)

Sale of Law Practice:
Permitted, but must meet:

Entire practice may be sold to one purchaser OR you can break up the firm with pieces being sold to different purchasers:

1) Purchaser must be authorized to practice law in Florida--no nonlawyers or someone NOT authorized to practice in FL

2) written notice must be sent to the firm's clients informing them of the sale of the firm AND their right to retain other counsel.
--Client consent is presumed if the client does not object within 30 days of the notice

3) purchaser can't increase fees charged to clients
Unauthorized practice of law: prohibitions for lawyers not admitted in florida
1) cannot advertise to provide legal services in FL

2) cannot establish an office in FL or hold out to the public that the lawyer is admitted in FL
Unauthorized practice of law: exceptions
1) areas of pure federal law, a lawyer admitted in another jurisdiction may provide legal services in FL, but services must be limited to these specific areas of federal law

2) pro hac vice
Pro hac vice rules
--non-Florida lawyer can appear in Florida court in a particular case:

1) first, must file a motion with the court. If approved, attorney can appear before the court for that case only

2) more than 3 initial appearances in a year is presumed to constitute the general practice of law and therefore the lawyer is ineligible for admission pro hac vice

3) not eligible
--inactive lawyers; suspended lawyers, former members of the Florida bar

4) Florida residents are not eligible for pro hac vice unless an application has been filed
Limitations on Non-lawyers
1) lawyer cannot assist a non-lawyer to engage in the unauthorized practice of law

2) a lawyer must supervise non-lawyer staff, but a non-lawyer can only do work specific delegated tasks

3) a non-lawyer paralegal can do work that is specific delegated task

4) Lawyer cannot accept employment by a non-lawyer group the purpose of which is to supervise non-lawyers
--a suspended or disbarred lawyer cannot be employed under the supervision of another lawyer who was supervised by the individual at the time of the acts that caused the suspension or disbarment
Temporary Practice of law:
allowed under the following:

1) you associate with a FL licensed lawyer who actively participate

2) services are reasonably related to a potential or pending proceeding where the lawyer is admitted OR

3) services are performed for a client who resides where the lawyer is admitted, client resides in home state where lawyer is admitted

OR reasonably related to the lawyers' home state practice
Restrictive covenants for lawyers
not permitted
Pro bono work in Fl
1) not required --only aspiration that you perform 20 hours per year or $350 donation to organizations who do the work

2) Mandatory: reporting of pro bono hours worked or how much money you have donated
--if you lie, grounds for discipline
Naming Your firm:
1) no false, deceptive or misleading firm names

2) Trade names: generally permitted in FL, BUT
--(i) cannot be false or deceptive
--(ii) cannot imply a connection with a government agency or public charitable legal services organization
--(iii) law firm can include "legal clinic" or "legal services" in its name if the law firm's practice is devoted to routine legal services at reduced rates
--(iv) Name of a lawyer holding public office may not be used in the name of the law firm during any period in which the lawyer is not actively and regularly practicing with the firm
--(v) "nonsense name" cannot be used to only gain an advantageous position in the telephone directory but if the lawyer actually practices under the that name, then its ok
Fees: general rules
1) cannot be clearly excessive

2) cannot be generated through employment based on violating the advertising or solicitation rules, or by fraud

3) cannot exceed a reasonable fee or constitute clear overreaching or unconscionable demand
Overreaching Fees: factors
1) amount of time spent on the matter
2) time limitations
3) complexity and novelty of the matter
4) amount of money involved in the matter
5) lawyer's skill, experience and reputation
6) what is customarily in the geographic area
Contingency fees:
1) must be in writing and signed by the client

2) signed by every participating lawyer

3) Non-contingency fee agreements are not required to be in writing unless any portion of fee is NON-refundable
Contingency fees: writing requirements
1) agreement must state method of calculation

2) whether expenses will be deducted before or after the percentage is taken

3) at conclusion of case, a closing statement with calculations and final fee must be provided to client
Case types where contingency not allowed
1) domestic relations
--except: in an action to recover a post-judgment balance of support or alimony (collections cases)

2) criminal cases
FL specific rules for personal injury and property damage cases
Client must be given Statement of Client rights:

1) client has right to cancel within 3 days of signing and will owe no fee-- except client is obligated to pay reasonable expenses advanced by lawyer

2) must disclose lawyer's experience and education

3) must disclose whether lawyer will handle the case alone, or bring someone else in

4) must disclose right to a financial closing statement, which calculates the fee

5) must disclose right of client to be kept fully informed

6) must disclose that its the client's right to make a decision regarding settlement
FL limits on percentage of recovery in PIP or property damage cases: if settlement is reached before defendant's answer is filed
1) up to $1 million -- 33 and 1/3 % limit

2) between 1-2 million -- 30% limit

3) over 2 million -- 20 % limit
FL limits on percentage of recovery in PIP or property damage cases: if recovery comes after the defendant's answer is filed
1) up to 1 million -- 40% limit

2) between 1 and 2-- 30 %

3) over 2 million -- 20 %
FL limits on percentage of recovery in PIP or property damage cases: if defendant admits liability
1) up to 1 mil: 33 and 1/3 %

2) between 2 and 3: 20%

3) over 2: 15&

--plus 5% can be added in the event of an appeal
FL special Rules: medical malpractice cases:
top contingency fee is 30% for first, $250K in damages; and 10% of all damages over $250K
Sharing of fee with a lawyer in a different firm: allowed if
1) Total fee is reasonable and EITHER:
---(i) fee split based on the amount of work done by each lawyer OR
---(ii) there is a written agreement with client and
------(a) each lawyer assumes joint responsibility and
------(b) each lawyer is available for consultation and
------(c) the basis of the fee split must be disclosed to client
------(d) lawyer need not actually do any work to share in fee

2) Advertisements must state any intention of a lawyer to refer the case to another lawyer
Dividing legal fees: personal injury or property damage contingency fees
1) 75% minimum for lawyer with primary responsibility

2) waiver from this rule is permitted with court permission if there is equal participation by the lawyers
Non-client paying fee: permitted if
1) client consents

2) there is no interference with AC relationship

3) confidentiality is protected
Special Rules for attorney hired by insurance company
if a lawyer is paid by insurance company to represent the insured, insured must receive Statement of Client rights:

1) lawyer will follow instructions from insurance company if insurance policy so provides

2) lawyer may share confidential information from insured with ins. co.

3) insurance policy may give insurance company the right to decide whether to settle
Fees: media rights
transfer of media rights before the conclusion of case is not permitted
Fees: expenses
all expenses must be reasonable. consider actual expenses
Conflicts of Interest: Business deals
Can create a conflict of interest BUT ARE PERMITTED IF :

1) deal is fair and reasonable to client, AND

2) deal must be in writing AND

3) client given reasonable opportunity to get independent counsel AND

4) client consents in writing
Conflict of Interest: Client insists on gift to lawyer
then the entire law firm cannot prepare the instrument
--entire firm is disqualified from preparing will
Financial help to client:
1) generally not allowed; no loans; no paying client bills

2) exception: lawyer can advance court costs and litigation expenses OR if client is indigent, then paying court costs and litigation expenses is permitted
Conflict of interest: malpractice
lawyer cannot limit liability for malpractice unless the client is independently represented by another lawyer
Conflict of interest: agreement for mandatory arbitration of fee disputes
allowed if client is advised in writing to retain independent counsel
Conflict of interest: settlement of malpractice cases
lawyer cannot settle with client without telling client IN WRITING to get independent counsel
Family Member as OC
1) not permitted in the same case
---family members include parents, children, siblings, and spouse

2) client waiver is permitted

3) law firm is not disqualified when family members are int eh same case --conflict is not imputed to the whole firm;
Representation of multiple clients not permitted if:
1) clients' interests are directly adverse OR

2) lawyer's representation of one client creates a substantial risk of material limitation of ability to represent the other

3) client can waive conflict thru consent, but only if attorney reasonably believes that there will be no adverse effect
--waiver must be IN WRITING
Representation of multiple clients in civil case
generally permitted, however must consider whether interests are likely to become adverse during the case
Conflict of interest: aggregate settlement offer
all clients must consent after consultation and disclosure
Representation of multiple criminal defendants in same criminal case
1) not ineffective assistance of counsel as a matter of law, so technically permitted to represent more than one criminal client

2) however, conflict between co-defendants, lawyer should decline to represent more than one co-defendant
Conflict of interest: former client
1 ) lawyer cannot represent a new client who is suing a former client in the same or substantially related matter

2) cannot use confidential information against former client on behalf of new client --but if info public, then its ok

3) former client can consent and waive conflict
Rule of Imputation:
1) general Rule: if one lawyer is imputed, the entire firm is disqualified because of the the conflict

2) exceptions
--(i) a family member who is OC created conflict

--(ii) conflict is a personal interest conflict

--(iii) if newly associated ex-governmental lawyer or ex-judge joins the firm but is screened and does not share in the fee
-----screening works for any lawyer
Exceptions to duty of confidentiality: must be revealed
1) to prevent any future crime-- broader than ABA rules -- any crime

2) to prevent death or substantial bodily injury

3) if court orders lawyer to reveal, then lawyer MUST reveal
Exceptions to duty of confidentiality: MAY reveal
1) only what is reasonably necessary to defend the lawyer in a controversy between lawyer and client; disclosure not permitted solely for the purpose of retaliation

2) to establish a defense in any case against the lawyer, perhaps in a criminal case

3) to detect and resolve a conflict of interest, but may not reveal anything that would prejudice the client
Confidentiality: prospective clients
1) confidential even if not hired, but it has to be a sincere consultation, not just meeting to conflict lawyers out

2) if obtained confidential information from prospective client may not represent another client in the same or substantially related matter

3) other lawyers at the firm are NOT disqualified so long as the lawyer with confidential information is screened
Confidentiality: implied authority exception to confidentiality
1) when a client hires a lawyer, they have hired the firm. What is reasonably necessary to carry out the representation can be disclosed

2) disclosures to co-workers is permitted, but no gossip
Confidentiality: Possession or touching of physical evidence:
confidentiality does not apply to physical evidence that the lawyer has touched or taken possession of --lawyer must turn it over
Litigation issues: what is not considered frivolous
1) position was a loser in the past but there is a good faith argument for reversal

2) lawyer thinks case is a loser now, but a good faith argument exists

3) current facts are insufficient but discovery is upcoming
Litigation issue: false testimony/perjury
1) if the lawyer knows that testimony is false: MUST NOT OFFER IT

2) if lawyer has a reasonable belief that the testimony is false; then its lawyer's option whether to offer it
Litigation issue: if client wants to commit perjury
1) tell client not to do it or to correct past testimony

2) if client refuses to listen to lawyer, lawyer should withdraw

3) if withdrawal is not possible, FL says the lawyer should disclose information to court

4) criminal case: follow same approach as in civil cases

---Exception: if court gives permission to follow a narrative approach-- in FL, only allowed if court permits
Litigation Issues: Witnesses
1) cant pay fact witnesses or give them any benefit to testify as fact witness

2) expert fee allowed for expert witness, but cannot be contingent on the result

3) reimbursement for reasonable expenses permitted for all witnesses (fact and expert)

4) telling a wit not to talk to other side is prohibited unless witness is your client or a relative or employee of the client
Exception to prohibition of lawyer as a witness
1) matter is uncontested

2) NATURE and value of legal services are at issue
Lawyer as witness: law firm disqualification
1) entire firm NOT disqualified if lawyer must testify;

2) exception: if lawyer's testimony is against or contrary to the client's position
Litigation issues: communication with juror
1)prohibited before and during trial

2) after trial: permitted only to determine whether the verdict is subject to legal challenge and court approval required -- unique to FL
Florida Overdraft Protection:
not permitted for client trust accounts
Lawyer financial accounts:
1) no commingling of funds

2) advance for fees and expenses go into client trust account

3) must keep records for 6 years

4) Nonrefundable fee to guarantee availability of lawyer IS permitted, but must be confirmed by letter to client
Mandatory Withdrawal
1) continued representation would violation of any Rule

2) lawyer is fired/discharged

3) physical or mental condition requires withdrawal

4) client persists in course of action involving lawyer's services that lawyer reasonably believes is criminal or fraudulent

5) client has used lawyer's services to perpetrate a crime or fraud
Permissive withdrawal
1) client insists on criminal or fraudulent conduct

2) client or cause is repugnant or seeks imprudent objective

3) lawyer will suffer unreasonable financial burden

4) client insists on action with which the lawyer has fundamental disagreement
Communication with unrepresented parties
1) cannot act as if disinterested

2) cannot give legal advice-- except to tell them tot get a lawyer
Process for advertisement
1) any lawyer who advertises in Florida must file with the Florid abar a copy of each ad at least 20 days prior toe hte ad's first dissemination. If the bar does not respond within 15 days, lawyer cannot be disciplined for an improper ad

2) lawyer can also request advisory opinion for future ads

3) pre-filin is not required for brief announcements that identify the lawyer as the sponsor of a charitable even