FL PROF RES Flashcards
(103 cards)
1
Q
General Grounds for Discipline
A
- violation of a professional conduct rule or knowingly assisting another
- failure to disclose material information in bar app
- refusal to cooperate w/ disciplinary investigation
- crime that reflects adversely on honesty or trustworthiness or fitness as lawyer
- intentionally engaging in conduct thats dishonest, fraudulent, deceitful, or misrepresentation (except when undercover)
- conduct in connection w/ law practice that is prejudicial to administration of justice
- stating or implying ability to influence govt official or achieve results by unethical means
- knowingly helping judge to violate judicial conduct rules
- willfully failing to pay for child support
- engaging sexual conduct w/ client that exploits or adversely affects atty-client relationship
- disparagement, humiliation, or discrimination of litigants, jurors, witnesses, or other lawyer
2
Q
Duty to Report
A
Lawyer who knows of another atty’s violation that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer must report that violation
Exceptions :
- confidential information of client
- lawyer’s assistance programs
- mediation
3
Q
Unauthorized practice of law
A
- out of state lawyer cannot advertise in Florida
- cannot establish office in FL
- cannot hold self out to public as being admitted in FL
4
Q
Temporary Practice by Out of State Lawyer
A
- associate w/ FL licensed lawyer
- pro hac vice (litigation)
- services are performed for client who resides or has an office in state where lawyer licensed
- temporary practice reasonably relates to the lawyer’s home state practce
5
Q
Permanent Practice by Out of State Lawyer
A
A lawyer admitted in another state or foreign jdx can provide legal services in FL under the following circumstances
1. Lawyer is authorized by federal or local law to practice a restricted branch of law or
2. lawyer is an authorized in house counsel for organization
6
Q
Partnership With Nonlawyer
A
Cannot form a partnership or other organization with a nonlawyer if any of the organization’s activities consist of the practice of law
7
Q
Nonlawyer Control of Firm
A
Law firms must not be set up where nonlawyer (1) owns an interest of the firm (2) is a corporate officer or director or (3) has the right to direct or control a lawyer’s professional judgment
8
Q
Overarching Obligation
A
A partner or other managing lawyer must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all members of the firm conform to the RPC
9
Q
Restriction on Right to Practice
A
No partnership or employment agreements that restrict right to practice upon termination
Exception - reasonable one upon retirement
A lawyer may not make a settlement agreement for a client that restricts the right of the lawyer to practice law (ex, settling with opposing party under condition the lawyer will never represent another client against that party again)
10
Q
Sale of Law Practice
A
- sell entire practice, or entire area of practice
- purchaser must be authorized in FL
- written notice to clients (consent presumed w/n 30 days)
- purchaser cannot increase fees because of sale
11
Q
Fees
A
- Cannot be clearly excessive
- Cannot violate the advertising or solicitation rules
12
Q
Communicating fee to client
A
- must communicate basis or rate of fee at outset of the matter (except for regularly represented client)
- writing preferable, but not required (exception, non refundable fees) (exception, contingency fees)
13
Q
Contingent Fees
A
A fee that is dependent on the successful resolution of the client’s case.
Must be
1. In writing
2. Signed by client
3. Singed by each participating lawyer
4. Specific disclosure requirements
- method of calculation
- whether expenses deducted before or after legal fee taken out
- closing statement (how settled, where money went, etc)
14
Q
Where contingency fee prohibited
A
- domestic relations case (recovering child support/alimony is a collections case if the client comes and asks you to try to get it from the individual)
- criminal cases
15
Q
Contingency Fee in PI or Property Damage Cases - Statement of Client Rights
A
- right to cancel w/n 3 days of signing by written notification (client obligated to pay reasonable expenses incurred by lawyer)
- lawyers experience and education
- whether lawyer will bring in another atty
- right to closing statement
- right to be kept fully infomred
- right to decide on settlement (fully informed)
16
Q
Caps on Fee if Defendant admits liability
A
First $1 million - 33 and 1/3%
Next $1-2 million — 20% limit
Beyond 2 million - 15%
17
Q
Cap on fee if recovery comes after Ds answer is filed
A
First $1 mil - 40%
Next $1-2 mil - 30%
Beyond $2 mil - 20%
18
Q
Appeal Fee Cap
A
Additional 5% allowed
19
Q
Cap on Fee if settlement before Ds answer filed
A
1st million - 33 & 1/3%
Next $1-2 Mill - 30%
Beyond 2 mil - 20%
20
Q
Caps on Contingency Fees in Medical Malpractice Cases
A
30% for first $250k in damages, and 10% of all damages over $250k
21
Q
Conditions for Dividing Fee w/ Outside lawyer
A
- total fee reasonable and
- either
1. Split based on each lawyer’s work OR
2. By written agent with client (a) lawyer assumes joint responsibility (b) lawyer agrees to be available for consultation (c) basis of split disclosed to client (most common)
22
Q
Dividing Contingent Fee w/ Outside Lawyer in PI or Property Damage
A
- Lawyer w/ primary responsibility gets at least 75% (can ask court to waive if both working equally)
23
Q
Dividing Fees w/ Nonlawyers
A
Can’t share w/ nonlawyer
Exceptions
- bonus to nonlawyer employee for extraordinary effort (not based on generation of business and not calculated as percentage of fees)
- sharing court awarded atty fees w/ not-for-profit organization that hired or recommended lawyer in matter
24
Q
Forms of Payment
A
May accept in any form - cash, credit cards, real property, or personal property
Problem if lawyer has knowledge of the greater value of the property than the client
Cannot charge more than actual charge the credit card imposes for transaction
25
Mandatory Arbitration Agmt
An agreement containing a mandatory arbitration clause for fee disputes must include language stating that the client is advised to consult with independent counsel before signing the agreement and that the client waives any right to go to court to resolve fee disputes.
26
Court Appointments
A lawyer must not seek to avoid appointment unless there is good cause (unreasonable financial burden, strong feelings against client, or if representing may result in violation of the RPC)
27
Rejecting Cases for Ethical Reason
A lawyer may be obligated to reject case b/c the representation would lead to ethical violation
28
Scope of Representation
Can limit scope of representation if (1) reasonable and (2) client gives informed consent
29
When client always has final decision
1. Settling a civil case
2. In criminal cases — (a) whether to take plea (b) whether to waive jury (c) whether to testify
3. Activities relating to fees
30
Competence
1. Includes legal knowledge, skill, thoroughness, preparation reasonably necessary for the representation
2. Can solve competence problem by (a) learning (b) consult with another lawyer
31
Diligence
Must act with reasonable diligence and promptness in representing a client. As such, a lawyer must control their workload so that each matter can be adequately handled. Diligence also includes acting with dedication to the client's interests and pursuing the matter to completion.
32
Communication
- keep client reasonable informed and respond to reasonable requests for info
- explain matter to client so that they can make informed decisions
- discuss offers to settle and plea bargains
33
Duty of Confidentiality
1. Must not disclose information relating to representation without consent
2. Applies even if not ultimately hired
3. continues after relationship ceases
Broader than the atty client privilege. It prohibits any disclosure of any type of information relating to the representation, no matter its source.
34
Exceptions to Duty of Confidentiality
Where exception applies — allowed to share only to the extent reasonably necessary
1. To prevent the client from committing ANY FUTURE crime (not just where death or serious bodily injury)
2. Prevent death or substantial bodily injury (can include past crimes)(i.e., i stabbed my boss and he’s in my basement probably still alive)
35
Permissive Exceptions to Confidentiality
1. To serve client’s interest
2. Establish defense or claim on behalf of the lawyer in controversy w/ client
3. Establish a defense in other proceeding or respond to allegations in any proceeding concerning lawyer's representation of the client
4. To detect and resolve conflict of interest due to change (such as merger or consolidation) (basic info only)
5. Otherwise allowed by rules, or ordered by court
36
Does the Duty of Confidentiality Apply to Physical Evidence
NO
37
Protecting Client’s Information
Must take reasonable measures to prevent inadvetent disclosure or unauthorized access.
38
Must Not Commingle Funds
A lawyer generally must never place their own money or their firm's money into the client trust account. However, the lawyer may keep enough of their own funds in the trust account to cover bank service charges and to replenish a shortage.
39
Trust Accounts
OK to have one trust account for clients money but must keep good accounting
A lawyer must not authorize overdraft protection for any account that contains trust funds
Advances for legal fees go into client trust account and are withdrawn by lawyer as earned
40
Non refundable Fees Earned on Receipt
- non refundable availability retainer (guarantees availability, confirmed by letter to client)
- a flat fee (must be confirmed in writing)
^^ Goes into operating account - if client ends up needing you, they have a credit
41
Combined Advance and Nonrefundable payment
If client gives the lawyer a negotiable instrument that represents both payments, deposit the entire amount in the client trust account then withdraw nonrefundable portion
42
Other Rules for Safekeeping Property
1. Promptly notify client/third person of receipt of funds
2. Promptly deliver funds to client/third person
3. In even of dispute, keep the disputed portion
4. Keep records for 6 years
43
Mandatory Withdrawal
1. If staying on the case would lead you to violate the RPC
2. Lawyer gets fired
3. Physical or mental condition materially impairs ability
4. client persists in criminal or fraudulent COA involving lawyer’s services
5. Client already used services to perpetuation crime or fraud
44
Permissive Withdrawal
1. For any reason if it wont have material adverse effect on client
2. Client or cause so repugnant or objective imprudent to you
3. Unreasonable financial burden on the lawyer
4. Client makes representation unreasonably difficult
5. Client failed to fulfill obligation and has been given reasonable warning
6. Other good causes
45
General Types of Conflict with Current Client
1. Direct adversity - representation directly adverse to another current client
2. Material limitation - substantial risk that representation will be materially limited by lawyer’s responsibilities to other current client, former client, third person, or by lawyers own interests
46
Representing Co parties (Material Limitation)
Where a lawyer is representing multiple parties on the same side of a matter and the parties have potentially conflicting interests
May be waivable in civil cases, frowned upon in criminal cases
47
Waiver of Direct Adversity or Material Limitation Conflict
1. Lawyer reasonably believes that they can provide competent and diligent representation
2. Each affected client gives informed consent either confirmed in writing or clearly stated on record
CANNOT be on both sides of same litigation, unwaivable
48
Business Transactions w/ Client
A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to a client, unless
Fair and reasonable to client
Put in understandable writing
Advise client to get independent counsel
Client consents in signed writing
Examples: Accepting non-monetary property as payment for services
49
Gifts from Clients
1. Cannot solicit gift from client
2. Cannot prepare will or other instrument that gives gift to lawyer or the lawyer’s relative
Prohibition does not apply if the client is related to the recipient of the gift
50
Literary or Media Rights
If portrayal will be based on information relating to the representation, cannot obtain such rights until after the client’s legal matter is entirely completed, appeals and all
51
Stake in Outcome
Cannot acquire proprietary interest in COA or subject matter of litigation
Except, (1) contingency fee or (2) lien on the case
52
Financial Assistance to Client
Prohibited in connection w/ actual or contemplated litigation except
1. Can advance court costs and litigation expenses (can be contingent on outcome)
2. For indigent clients, can pay court costs and litigation expenses outright
53
Misuse of Confidential Information
A lawyer must not use confidential information to a client's disadvantage unless the client gives informed consent or some exception to the duty of confidentiality applies
54
Settling Existing Malpractice Claim
A lawyer must not settle a claim or potential claim for malpractice liability with an unrepresentative client or former client w/o first advising that person in writing that independent representation is appropriate in making the Agmt
55
Prospectively Limiting Malpractice Liability
A lawyer must not make an Agmt prospectively limiting the lawyer’s liability for malpractice unless doing so is permitted by law and client is independently represented in making the Agmt
56
Aggregate Settlements
A lawyer must not participate in the making of an aggregate settlement Agmt unless the (1) layer discloses to each client the existence and nature of all the claims or pleas involved and the participation of each in the settlement and (2) each client gives informed consent to the Agmt in writing signed by the client
57
3rd Party Paying Client’s Legal Fees
Lawyer must not accept compensation for representing a client from someone other than the client unless (1) the client gives informed consent (2) there is no interference w/ lawyer’s independence of profession judgment or w/ lawyer-client relationship and (3) confidential info relating to the representation of the client is protected
58
Atty For Insured Hired By Insurance Company
A lawyer who represents insured at the expense of an insurance company and in regard to an action must provide the insured w/ a statement of insured client’s rights at the beginning of the representation
59
Opposing Counsel Is Immediate Family member
Cannot proceed without client’s informed consent and confirmed in writing or clearly stated on the record at a hearing — not imputed to other lawyers within a firm
60
Sexual Conduct with Clients
Cannot engage in sexual conduct with client that exploits or adversely affects atty client relationship
Relationship that started after representation began presumed to violate this rule
61
Representing Organization
- Client is organization, not individuals w/n it
- If no conflict, can represent individual and organization but address conflicts
- Report violations to higher authority (if highest authority refuses to act, can resign)
62
Conflicts with Former Clients
- Cannot represent client against former client in same or substantially related matter (substantially related = same transaction or dispute, or attacking own prior work)
- cannot use confidential information against former client, unless generally known or otherwise allowed by rules
63
Prospective Clients
If lawyer obtained confidential information, cannot represent another client in same or substantially related matter if information could be used to prospective client’s material disadvantage
Other lawyers at the firm can take the case with screening and notice
64
Conflicts Based on Prior Government Work
Cannot represent client in matter in which lawyer was personally and substantially involved in government service (Matter - specific facts and parties)
Cannot use confidential government information while in private practice
If lawyer disqualified, rest of firm can take if lawyer screen and govt given notice
65
Former Judge, Law Clerk, or Arbitrator
A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer or law clerk or mediator or arbitrator.
1. Cannot subsequently act as lawyer in same matter w/o consent from all parties
2. If lawyer disqualified, firm can take case if screen and notice given to parties and court
66
Exceptions to Imputation Recap
1. Immediate Family member is opposing counsel
2. Sexual relation with client
3. Prospective client conflicts
4. Prior govt service
5. Former judge, law clerk or arbitrator
6. Conflicts created by nonlawyers at firm
67
Departed lawyer’s Conflict
If a lawyer represented a client in a matter and then left the firm, and the firm no longer represents that client, the firm is generally not prohibited from representing a client adverse to that former client unless
* matter is the same or substantially related and
* at leas one remaining lawyer in the firm has confidential information
68
Frivolous Claims
All claims and positions require GF.
Can make prosecutor prove every necessary element of the case
69
False Statements to Court
Cannot make false statements to court and must correct it if later discovered
70
Disclosing harmful legal authority
Must disclose directly adverse legal authority from controlling jurisdiction that is directly adverse to the client’s position and that has not been disclosed by opposing counsel.
71
False Evidence
1. If lawyer knows evidence is false, must not offer it
2. If lawyer reasonably believes (but does not know) evidence is false, the lawyer may refuse to offer the evidence
72
Steps for addressing client perjury
- try to persuade client otherwise
- consider withdrawal
- disclose information to court
- in criminal cases, can follow the narrative approach with court’s permission
73
Paying Witnesses
1. cannot pay non-expert witnesses for testimony
2. Can pay expert fees, but cannot be contingent on result
3. Can reimburse any witness reasonable expenses
74
Advising Witness Not to Talk to Other Side
Cannot advise non-client witness to not talk to other side unless relative or employee
75
Trial lawyer as witness
cannot act as trial counsel if a necessary witness in the case
Exception
1. Uncontested matter
2. Nature and value of legal services
3. Lawyer has distinctive value and will cause undue hardship to client
4. Rest of firm usually not disqualified (but considered conflict issue if lawyers testimony is harmful)
76
Trial conduct
At trial, a lawyer must not
1. Assert personal knowledge of facts in issue
2. State a personal opinion
77
Threat to Gain Advantage in Civil Case
Must not bring, or threaten to bring, criminal charges or disciplinary proceedings solely to gain advantage in civil case
78
Communicating with jurors after trial
Cannot talk to jurors after trial except to determine whether verdict is subject to legal challenge
Judge has to approve
79
Trial Publicity
Cannot make public statements that have substantial likelihood of materially prejudicing trial
80
Communicated with Represented Person
When representing client in matter, cannot communicate about matter w/ person represented by counsel in matter w/o counsel’s consent
81
Represented Organizations
Cannot talk to certain individuals w/o consent of orgs counsel
- persons who supervises, directs, or regularly consults w/ organizations counsel about matter
- person w/ auth onto obligate org w/ respect to matter
- person whose conduct could be imputed to org for purposes of liability
Doesn’t apply to former employers
82
Communicating with Unrepresented Person
Cannot act as if disinterested
When persons’s interest may conflict w/ client’s interests, cannot give legal advice
83
Applicability of FLs Advertising Rules
Apply to portions of multi state firm’s website that directly relate to legal services by FL bar members
Apply to all forms of print and electronic communication seeking legal employment
Do not apply to ads broadcast in another sate (as long as disclaimer)
Apply when out of state lawyers are targets ads to FL residents (exception, class actions)
84
Required Content for Ads
- Name of at least one lawyer or firm responsible
- city, town, or county of at least one office location
85
Prohibited results
Cannot predict or guarantee success or specific results
Cannot refer to past results unless objectively verifiable
A comparison to the skill, experience, reputation or record of other lawyers unless objectively verifiable
A dramatization of an actual or fictitious event
A statement that lawyer will engage in improper tactics
Use of authority figure to endorse or recommend the lawyer or act as a spokesperson
The use of an actor without identifying them as an actor
Testimonial that (1) concerns a matter the person making is not qualified to evaluate (2) is not the actual experience of the person (3) is not representative of what clients generally experience (4) has been written or drafted by the lawyer (5) is made in exchange of something of value or (6) does not include disclaimer
A statement that the ad was approved by bar
The use of image, sound or video that is designed to appeal to emotions
The use of the voice or image of celebrity (except local announcer)
An offer for economic incentive
The use of a voice or image that creates erroneous impression
Illustrations — permitted are scales of justice, medications linked to adverse side effect, x ray of damaged lung, person in jail, person on crutches, damaged car
86
Claims of Speciality or Expertise
can identify as specialist or expert in area of practice if
1. Certified by certification plan accredited by FL or ABA OR
2. claim can be objectively verified based on lawyer’s education, training, experience, or involvement in area of practice
87
Trade names
- cannot imply connection w/ govt or charitable org
- can include legal clinic or legal services only if practice is devoted to routine legal services at reduced rate
88
Name of Lawyer Holding Public Office
Cannot be used in firm name during any substantial period where the lawyer is not actively practicing
89
Solicitation Rule
Generally, cannot solicit professional employment for financial gain
Exception - when doing something in the public interest, can solicit family members or former clients
Includes in person contact, by telephone, targeted or direct mail, real time face to face electronic communication
90
Prohibited Targeted mail
- sent within 30 days of accident or disaster
- sent to someone known to have a lawyer
- involves coercion or duress
- false or misleading
- sent to person who doesn’t want to be contacted
- sent to person whose physical, emotion or mental state would effect judgment
- sent to respondent of domestic violence injunction who has not been served yet
91
Labeling and Content Requirements for Targeted Mail
- the word advertisement must appear and be conspicuous
- cannot resemble legal pleadings or document
- must include statement of qualification or experience
- simple K need “sample” and “do not sign”
92
Professionalism
Unprofessionalism means “substantial or repeated violations” of the following
1. The bar Rules
2. The oath of admission to the bar
3. The FL Bar Creed of Professionalism
4. The FL Bar professionalism expectations and
5. The decisions of the FL Supreme Court
93
Commitment to equal Justice
1. Avoid even the appearance of impropriety
2. Promoting the public’s understanding of the lawyer’s role in the legal profession
3. Protecting public confidence in a just and fair legal system
4. Exercising professionalism in handling fee arrangements and
5. Endeavoring to resolve fee disputed through alternative dispute resolution
94
Honest and Effective Communication
A lawyers word should be their bond and the lawyer should be honest, diligent, civil and respectful in their interactions w/ others
95
Honor, Integrity and Fair Play
1. Act reasonably - lawyer should not unreasonably oppose an adversary’s motion, should only schedule to ascertain relevant facts, and not to generate income or harass dependents or opposing counsel
2. Fairness in scheduling
3. Communications with the court
4. Conduct during proceedings
96
Fair and Efficient Administration of Justice
A lawyer should always conduct themselves to assure the just, speedy, and inexpensive determination of every controversy
Includes:
- counseling client concerning the benefits of ADR
- maintaining familiarity with court’s administrative orders and local rules and each judge practice and procedures
3. Agreeing to reasonable requests for waivers or procedural formalities when clients interests aren’t adversely effected
- voluntarily withdrawing claims or defenses when it becomes apparent they are merit less, cumulative, superfluous
- being fully prepared during court proceedings
97
Lawyer duty of Courtesy
A lawyer should abstain from rude, disruptive, and disrespectful behavior and should encourage clients and support personnel to do the same. A lawyer should attempt to resolve disagreements before requesting a court hearing, filing a motion to compel, or motion for sanctions
98
Respect for the Time and Commitments of Others
A lawyer should respect the time and commitments of others
99
Factor determining reasonableness of fee
* amount of time spent
* limitations placed on the lawyer
* complexity and novelty of matter
* amount of money involved in the matter
* lawyer's skill, experience, and reputation
* what is customarily charged in the area
* nature and length of professional relationship
* likelihood that accepting employment will preclude other employment by the lawyer
* whether the fee is fixed or contingent
100
Lawyers Leaving Law Firms
Absent a specific agreement otherwise, a lawyer who is leaving a law firm must not unilaterally notify clients of their anticipated departure or solicit representation of the clients. However, the lawyer may do so if they have attempted to negotiate a joint communication to the clients with an authorized representative of the law firm but were unsuccessful.
101
General Rule for Conflicts of INterest
A lawyer owes a duty of loyalty to their client and must avoid or properly address any conflicts of interest. As a general rule, where a lawyer can't take on a matter because of a conflict, the other lawyers in the firm are also prohibited. The conflict is said to be imputed.
102
Direct Adversity Conflicts
A lawyer generally must not represent a client who is directly adverse to a different current client. There is a direct adversity conflict even if the lawyer represents the clients in totally unrelated matters. The main examples are
* a lawyer represents multiple clients in the same matter and their interests are in actual conflict
* a lawyer accepts representation of a client who is an adverse party in a different matter the lawyer/firm is handling for existing client
* lawyer accepts representation of a client in a matter adverse to an existing client of the lawyer/firm
* as part of representing a client, a lawyer must conduct a harmful or embarassing cross examination of another existing client
103
Opposing Client of Former Firm in Substantially Related Matter
If a lawyer's former firm represented a client in a matter and the lawyer actually acquire confidential information that is material to the matter, the lawyer must not subsequently represent another person in the same or substantially related matter adverse to the former firm's client, unless the former firm's client gives informed consent in writing or stated on record at hearing.
