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FL Professional Conduct Bar Exam 2020 > Prof Resp > Flashcards

Flashcards in Prof Resp Deck (43)
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1

Partnerships to practice law ____________  include non-lawyers as partners.

can't

  • Non-lawyer can't:

    1. own any interest (exception: wrapping up estate of deceased lawyer);

    2. be corporate director, officer, etc.;

    3. direct/control lawyer's professional judgment; or

    4. share fees

      • Exceptions: deceased atty estate payments for work done before death; sale of a deceased/disabled atty's practice; bonuses for extraordinary work performed; Sharing court-awarded fees w/ nonprofit pro bono organizations; & retirement plans.

2

LAWYER'S DUTIES AND OBLIGATIONS TO A CLIENT:

Communication with Client:

A lawyer must:

 

  1. Keep the client reasonably informed;

  2. Promptly reply to requests for information; and

  3. Convey ALL settlement or pleas offers promptly, unless the client agrees otherwise.

3

A lawyer is responsible for another lawyer's misconduct if:

  1. Atty orders conduct, or ratifies with knowledge; or

  2. Atty has supervisory authority over other atty and knows of conduct when it could be remedied, but fails to take reasonable remedial action.

4

Partners must make ________ efforts to ensure that lawyers and non-lawyers comply with the RPC.

 

reasonable

  • Atty or law firm can be responsible for misconduct of non-lawyer assistants, including secretaries, paralegals, and law clerks, if he fails to reasonably supervise and train subordinate attys and staff.

5

A subordinate lawyer may do what the supervising attorney orders only if it is a reasonable _____________ of an _____________ question of professional duty.

 

resolution

arguable

  • Example 9: Partner concludes that the representation of a prospective client by subordinate lawyer does not involve a conflict of interest and therefore does not require the client's informed consent to the representation. The subordinate lawyer disagrees with this conclusion, though after careful consideration determines the issue is arguable. The subordinate lawyer may represent the client, and will not be disciplined even if a court or disciplinary authority determines that there was a conflict in the representation.

6

Unauthorized Practice of Law:

Exceptions

Authorized temporary practice is allowed when:

  1. Association w/ & active participation by FL atty;

  2. Pro hac vice admission (required if appearing before a court);

  3. Alternative dispute resolution proceedings in Florida for client from home state, or when services  related to atty's practice in home state, unless pro hac vice admission is required; or

    4. Services performed for a client from atty's home state, or are related to atty's practice in home state, unless pro hac vice admission is required.

7

Communication of fees:

New Clients: Atty must communication the basis or rate of the fee, preferably in writing upon commencement of the representation.

Old (Existing) Clients: Atty need not explain the fees in writing if a basic understanding already exists as to the basis or rate of the fee.

  • New Clients: Atty must communication the basis or rate of the fee, preferably in writing upon commencement of the representation.

  • Old (Existing) Clients: Atty need not explain the fees in writing if a basic understanding already exists as to the basis or rate of the fee.

8

Contingent Fees Requirements:

 

Contingent Fees Requirements:

  1. written fee agrement

  2. signed by client AND all participating attys

  3. % that accrue to atty in the event of settlement, trial, or appeal must be specified in the agreement;

  4. Must include whether expenses will be deducted from recovery; and

  5. Must include whether expenses are deducted before or after contingent fee is calculated.

  6. Extra Requirements in Personal Injury Torts Cases:

    • Statement of Client's Rights (Must state  client can cancel within 3 business days & does not have to pay atty for any work done if it is cancelled) signed by client & atty; Copy given to client & retained by atty

  • Example 23: Assume Client has agreed to pay a 50% contingency fee. The recovery is $1 million, and the expenses are $500,000. If the expenses are deducted from the recovery before the contingency is taken out, the client will recover $250,000. If expenses are deducted from the recovery after the contingent fee is taken out, the client will recover nothing.

9

Contingent Fee Caps?

 

Fees exceeding caps presumed to excessive, unless rebutted.

  • Before filing of answer or demand:
    • 33 1/3% of any recovery up to $1m;

    • 30% of any portion of recovery between $1-2m;

    • 20% of any portion of recovery above $2m

  • After filing answer or demand:

    • 40% of any recovery up to $1m;

    • 30% of any portion of recovery between $1-2m;

    • 20% of any portion of recovery above $2m

  • Limits are lower if the trial is on damages only:

    • 33 1/3% of any recovery up to $1m;

    • 20% of any portion of recovery between $1-2m;

    • 15% of any portion of recovery above $2m

  • Additional 5% can be added if an appellate proceeding or post-judgment action to recover the judgment is required.

10

Prohibition on Contingent Fees?

 

  • Barred in criminal cases

  • Barred in domestic cases when the outcome is contingent on securing divorce, alimony, support, or a property settlement

  • Example 24: Husband and Wife divorce and the court orders Wife to pay $1,000 per month in child support. Wife stops paying, and Husband hires Lawyer to bring a child support enforcement action. Lawyer can charge a contingency fee in this case because the payment of the fee is not contingent on divorce (they are already divorced) or support amount (that is already set).

11

Contingent Fees:

Medical Liability Cases

  1. Must provide client with notice, orally & in writing, with Florida Constitution's fee limit provision
  2. Inform client, unless waived, he may receive no less than 70% of the first $250,000 of all damages received, exclusive of costs. Client entitled to 90% of all damages excess of $250,000, excl of costs.

  3. Atty refuses represention absent waiver: atty must inform client & specify, orally & in writing, of alternative terms atty would agree to & client's right to seek rep from another atty who will comply with Constitution's terms/atty willing to accept representation on a non-contingent basis.

  4. Waiver constitutional right is possible: Client must do so in writing, under oath, and in a form provided by the RPC.

12

Contingent Fees:

Division of Fees:

In cases involving contingent fees in personal injury/tortious property damages cases, lawyers NOT in the same firm may divide fees as follows:

 

  1. 75%/25% split: 75% of the fee goes to atty assuming primary authority & 25% goes to the lawyer assuming secondary authority.
  2. Court authorization: If both lawyers participate equallly, a court may authorize fees that do not comport with the 75%/25% requirement.

13

Contingent Fees:

Division of Fees:

In cases not involving contingent fees in personal injury/tortious property damages cases, lawyers NOT in the same firm may divide fees if the total fee is

 

  1. reasonable; AND
  2. either:
    • Division is in proportion to the service performed; OR

    • By written agreement with the client, each lawyer assumes joint legal responsibility for the representation, agrees to be available for consultation, and fully discloses the basis upon which the division of fees will be made.

Referral fees violate the RPC unless they meet above requirements.

14

Advertisements

public communications targeted at a broad audience.

  • Ads cannot be false, misleading, or deceptive (applicable to non-FL lawyers  if ads target Floridians; ads run as referral lawyer services)

  • Dramatizations permitted only if contain a prominent notice stating: DRAMATIZATION. NOT AN ACTUAL EVENT.

  • No recognizable spokeperson voice or image. Exception: local announcer/radio personality if she does not provide an endorsement or testimonial.
  • No background sound except instrumental music.
  • Atty must honor stated fee for 90 days unless ad states otherwise; Yearly publication: (e.g., yellow pages), must honor for a year

15

Advertisements:

General Requirements

 

  1. name (an atty responsible for ad) & address
  2. Filing Requirements/Copies

    • Filed w/ Bar for evaluation of compliance at least 20 days prior to 1st dissemination.

    • May run ad w/o discipline if Bar does not respond w/in 15 days.

  3. Atty must maintain copies of and records regarding ads for 3 years after last dissemination.

16

SOLICITATION

communication targeting a specific individual with specific legal needs

  • Solicitations are advertisements subject ad rules
  • Solicatation permitted: family, current/former clients, & pro bono solicitation
  • Emails: Begin subject line w/ "Advertisement"
  • Letters: 1) marked as ad on envelopes 2) accompanied by a written statement re:

    training and experience of lawyer or firm; & 3) if contract for employment included in solicitation, it must be marked SAMPLE in red ink, and Do Not Sign in large font; and 4) not be made to resemble any legal documents

  • Personal injury or wrongful death cases: Atty may not send written communications unless accident or disaster occurred more than 30 days prior to mailing.

17

Solicitation:

Requirements for Written Solicitation Triggered by "Specific Occurrence"

 

any written solicitation must comply with the following:

  1. First sentence reads: "If you have already retained a lawyer for this matter, please disregard this letter";

  2. States who will handle the matter;

  3. Says how the lawyer learned of prospective client's

    need for legal services; and

  4. Envelope must not reveal the nature of the client's legal problem.

18

Scope, Objectives, and Means of the Representation:

Client vs. Atty

  •  Client—controls the scope and objectives of the representation
  • Lawyer—in charge of the means of representation (with client consultation)

19

Scope, Objectives, and Means of the Representation:

Client Decisions

Civil Cases: Acceptance of Settlement

  • Atty must inform client that a settlement offer has been received.
  • Client has ultimate authority.
  • A settlement made with apparent authority is binding.

Criminal Cases

  • Client must decide whether to testify

  • Client must decide whether to waive jury trial right.

  • Client must decide whether to accept or enter a plea agreement

20

Scope, Objectives, and Means of the Representation:

Counseling Crime or Fraud Prohibited:

A lawyer may not __________ or __________ the client in conduct the lawyer knows or reasonably should know is criminal or fraudulent.

counsel

assist

  • Atty may discuss the legal consequences of any proposed course of action with the client.
  • Ex: Mob client asks Lawyer: "Would it violate RICO if I killed a material witness?" Although the question technically requests only a discussion of the legal consequences of a proposed course of action, answering the question in this instance (when killing is contemplated) would likely be treated as assisting crime rather than merely discussing legal consequences.

  • Ex: Client asks Lawyer: "Would it violate tax law if I take this deduction?" Lawyer may answer the question because it constitutes a discussion of the legal consequences of a proposed course of action.

21

CONFLICTS OF INTEREST:

A lawyer must NOT represent a client if (i) the representation is ___________ to the client, or (ii) ___________ the representation of a client, unless the conflict is "consentable."

adverse

materially limits (substantial risk that representation of one or more clients (C1) will be materially limited by the lawyer's responsibilities to another client, a former client (FC2), a third person (3P), or a personal interest of the lawyer (L).)

 

22

CONFLICTS OF INTEREST:

Consentable Conflicts

 

Atty reasonably believes he can provide;

  1. Competent & diligent representation to each affected client;

  2. Representation is not prohibited by law;

  3. Lawyer will not have to assert a position adverse to one client when he represents two or more clients in the same proceeding before a tribunal; &

  4. Consent after consultation must be given and confirmed in WRITING or clearly stated on the record at a hearing.

23

CONFLICTS OF INTEREST:

Conflicts Involving Former Clients:

Representations _________to a former client in the same or a substantially related matter are prohibited without _________.

materially adverse; informed consent

  • Informed consent CURES all former client conflicts

  • Lawyer may NOT use confidential information against a_________ client or _________ confidential info.

    • Exception: Ethics rules allow revelation of information that has become generally known to the public

24

BUSINESS TRANSACTIONS WITH CLIENTS AND IMPUTED DISQUALIFICATION:

Business Transactions with Clients Requirements:

 

 

  1. Client's written consent;
  2. Advise client to seek independent counsel in writing; &
  3. Transaction is fair and reasonable
  • A lawyer is prohibited from negotiating for, or acquiring literary or media rights relating to the representation of a client prior to THE CONCLUSION of all aspects of the matter that gave rise to the representation.

  • A lawyer may not solicit substantial gifts unless the lawyer is related to the client.

25

BUSINESS TRANSACTIONS WITH CLIENTS AND IMPUTED DISQUALIFICATION:

Influence on Representation by a 3rd Party:

A lawyer may not accept payment for representation from someone other than the client unless:

  1. Client gives informed consent

  2. No interference with independent professional judgment or with client-lawyer relationship; and

  3. Confidentiality is must be protected

26

BUSINESS TRANSACTIONS WITH CLIENTS AND IMPUTED DISQUALIFICATION:

IMPUTED DISQUALIFICATION:

Lawyers in Firms?

Non-Lawyers in Firms?

  • Tainted atty: every lawyer in the firm is tainted by the conflict and disqualified

  • Tainted Non-Lawyers in Firms: conflict is NOT imputed to the firm.

    • Screening of the non-lawyer is required.

27

BUSINESS TRANSACTIONS WITH CLIENTS AND IMPUTED DISQUALIFICATION:

IMPUTED DISQUALIFICATION:

Switching Firms:

Lawyers Leaving Old Firms?

When a lawyer leaves a firm, the old firm may not represent persons if:

  1. Their interests are materially adverse to those of the clients of the lawyer who left;

  2. Matters are same or substantially related; &

  3. Any remaining atty in firm acquired confidential information about former client

 

28

BUSINESS TRANSACTIONS WITH CLIENTS AND IMPUTED DISQUALIFICATION:

IMPUTED DISQUALIFICATION:

Switching Firms:

Lawyers Joining New Firms?

 

Neither the new lawyer joining a firm nor his new firm may represent a person in the:

  1. Same or substantially similar matter in which new atty or his old firm previously represented a client whose interests are;

  2. Materially adverse to that person; and

  3. About whom the lawyer has acquired confidential information about the former client.

  • Ex: Lawyer worked as an associate in the real estate department of MegaFirm. MegaFirm represented Apple in antitrust matters. Lawyer moves to MiniFirm. MiniFirm wishes to represent Microsoft in an antitrust suit against Apple. Lawyer is unlikely to have acquired confidential information about Apple while working on real estate matters. Therefore, MiniFirm may represent Microsoft.

29

LAWYER'S DUTIES AND OBLIGATIONS TO A CLIENT:

Safekeeping a Client's Property:

 Florida attorneys must deposit short-term funds belonging to clients and third parties in an_________.

Interest on Trust Accounts (IOTA)

  • No commingling of property.
  • Interest accrues to Florida Bar Foundation

  • Trust accounting records must be kept.

30

LAWYER'S DUTIES AND OBLIGATIONS TO A CLIENT:

Attorney-Client Privilege

  • A-C Privilege: Testimonial/evidentiary privilege that applies in proceedings before a tribunal where the lawyer may be asked to testify or produce evidence about a client communication.

  • Applies to: Confidential communication b/w atty & client made for purposes of recieving or seeking legal advice
  • Client holds privilege
  • ACP is indefinite, lasts after client's death
  • Exceptions: Future crime fraud; 2Disputes b/w attorney and client or b/w clients

  • Ex: A court orders a lawyer to testify in court regarding a client's fraudulent conduct. The lawyer's testimony falls into the crime-fraud exception to the ACP. After testifying, the lawyer walks out onto the courthouse steps and a reporter asks, "What did you say about what your client told you?" Lawyer may not respond because it would violate his ethical duty of confidentiality to do so.