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Flashcards in FL Professional Responsibility Deck (18)
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1

Fees: Reasonable Fees

Lawyer's fees have to be reasonable and not excessive.

Factors:

  • What the customary fee in the community for similar work is.
  • The time and work involved.
  • What experience, reputation and ability does the lawyer have for the type of work

 

2

Fees: Receiving Fees from 3rd Parties

Generally, a lawyer cannot receive fees from third parties to pay for the cost of client's representation, unless:

  1. Client gives consent
  2. There is no evidence of interference with the attorney/client relationship (independent) judgment making (decision making); and,
  3. Attorney confidentiality is maintained

3

Fees: Court ordered Attorney Fees

Not usually given unless:

  1. There is a contractual agreement
  2. Sanctions against opposing counsel 
  3. Statute provides fees  

 

4

Fees: Contingency Fee

Contingency fees are not allowed in criminal matters or family matters.

Requirements:

  1. Needs to be in writing
  2. How fee is calculated (generally depending on when/how fees will be collected is 15-40%).
    • Cannot go beyond the 40% statutory guidelines and is thus considered excessive.
  3. If case is settled/trial/appeal: then delineating at what stage and what percent will be awarded
  4. What expense are deducted and when are they deducted?
    • Before or after percentage is calculated. Net or gross.
  5. BEFORE agreement is signed, must give client a “STATEMENT OF CLIENT RIGHTS” relating to the fees and have 3-days to retract the agreement.

5

Trust Accounts

A client's money/property is held in a trust account –

  1. all property has to be kept separate from lawyer's own account (no comingling of law firm funds) AND
  2. needs to be labeled “TRUST ACCOUNT”

6

Court Costs

attorney cannot give financial assistance to clients, but an attorney can advance funds for court or expenses.

7

Fees: Referral Fees

  • Cannot split fees with non-lawyers

Permitted when:

  1. amount is broken into the proportional percentage of work done by each attorney
  2. Written agreement with client that there is a joint (agreement) responsibility of representation and sets out exactly what is going to happen

8

Conflicts of interest: general rule and exception

Generally, a lawyer may not represent a client if doing so would be directly adverse to other clients

or

If the lawyer's independent judgment would be limited in their responsibilities to another client.

Unless:

  1. The lawyer reasonably believes his independent judgment and decision making will not be adversely affected and
  2. the client gives informed consent in writing or states on the record in a hearing.

9

Conflicts of Interest: Business relationships

Lawyer cannot enter into a business transaction or take financial interest adverse to a client except:

  1. The transaction is fair and reasonable
  2. Full disclosure in writing is given to the client
  3. The client gives informed consent after a reasonable opportunity to confer with independent counsel

10

Conflict of Interest: Conflicting former Client Representation

A lawyer cannot represent a new client whose position is materially adverse to a former client in matters that are substantially similar, unless, the former client gives informed consent.

11

Conflict of interest: Imputed disqualification

if a lawyer has a conflict of interest with a present or former client then that conflict is imputed to the firm. EXCEPT:

  • If the lawyer leaves the firm, the firm may represent a client whose interest is adverse to the former client,
    • UNLESS
      • it is the same or substantially same case as the prior case OR:
      • the remaining lawyer at the firm has confidential information on the former client.

12

Conflict of Interest: Multiple Parties

If multiple clients want to be represented by one lawyer, they must be informed of the risks of doing so.

13

Solicitation 

An attorney cannot solicit clients if they do not have a preexisting familial or professional relationship, if the lawyer's motive is pecuniary (monetary) gain. 

14

Advertisement and Mailings

A lawyer can advertise through various mediums as long as the

  1. name of the lawyer and
  2. location of the practice is provided.

The advertisement cannot have:

  • Unverifiable past results
  • False or misleading or deceptive info
  • Reference legal fields that do not regularly practice
  • Information about other lawyers (no shit talking)
  • Gurentees about outcome
  • State attorney specialization unless Florida Board Certified

(Verifed Testimonial Permitted but it cannot be by someone not qualified, not the person who has the actual experience, and must contain a disclaimer that clients may not get same result obtained.)

A potential Tort plaintiff cannot be contaced within 30 days of accident

Mailings: Envelope must have in red ink "Advertisement" on bottem left of envolpe and first page.

Must contain a written detailed background and training and experiance of the lawyer

15

Solicitation: Already Represented Potential Clients

Can't talk to another lawyer's client without their lawyer present.

16

Professionalism: Conduct

  1. lawyer must at all times act in a courteous, professional, and respectful manner.
  2. When dealing with opposing counsel or judge: always act with integrity and always be timely in responding and how others respond.
  3. A lawyer cannot do anything to embarrass, harassing, or to threaten opposing counsel.
  4. When dealing with claims or motions make sure they are backed up with fact–nothing can be done to delay and no frivolous claims.
  5. Lawyer must be independent and not be persuaded to act by the client, must always be fair to the interest of justice.

17

Professionalism: Confidentiality

Confidentiality: lawyer must maintain confidentiality. lasts forever. Has to be maintained at all costs UNLESS:

  • Lawyer knows the client is going to commit a crime,
  • Knows the client is going to cause great bodily harm or death, OR
  • Client consents to waiving confidentiality.

18

Profesionalism: Competency

lawyer has to maintain the level of skill, care, and competency in the area of law to be able to represent clients in that area of law.

 (Real estate lawyer not handling criminal matter). If don’t have resource or capacity to learn cannot take case.