Flashcards in Professional Conduct Deck (66)
regulatory controls: general sources of regulation
1-state regulations-FL BAR-"integrated"-requires all attys who practice in FL to join; inherent authority vested in FLSC; regulated by courts, legislature, and FL Bar. 2-fed regulations: admission requires membership in state bar; allows for "pro hace vice" appearances. 3-ABA-voluntary organization-model rules have been adopted w/ changes by FL Bar
admission requirements to FL Bar
1-Character & fitness: "good moral character;" 2-New admissions: Practicing w/ professionalism course (12 months before & 12 months after admission), 3 basic skills review courses-may defer, and CLE 30 hrs/3 years; 3-graduation from an accredited law school, accreditation w/i 12 months, or 10 years of prior practice & good standing in another state; 4-pass bar exam: MBE, FL, and MPRE; 5-must be 18
disciplinary process in general
every atty s charged with knowledge of the rule
disciplinary process: general prohibitions
assisting or violating the model rules; commit a criminal act or "intentionally" (deliberate and knowingly) engage in any conduct involving honesty, trustworthiness, or fitness; attempt or imply ability to improperly influence gov't officials; engage in conduct prejudicial to the administration of justice; assist judiciary in violating the rules; knowingly or through callous indifference disparage, humiliate or discriminate against legal professionals on basis of protected status; fail to participate in disciplinary proceedings; fail to pay child support; sex with clients
disciplinary process: procedure
complaint filed w/i 6 years; grievance committee hearing; procedural protections; right to counsel; cross; against self-incrimination; probable cause found-formal complaint with Bar filed; no PC-can be revisited
disciplinary process: sanctions
disbarment; suspension; public reprimand or admonishment; probation; enhancement programs
unauthorized practice of law
if not admitted to practice, may not 1-establish office/regular presence for purpose of practicing law; 2-falsely represent or advertise admission status; 3-make court appearances, unless authorized by court rules. Judges may not practice; no "specialized" attorneys, unless certified; nonlawyers may not own firms, share attorney fees, or influence attorney's independent judgment; work delegated to nonlawyers must be supervised
Law firms in general
3 categories of practitioners: partner-responsible/liable; associates-limited liability; of counsel. "General counsel"-firm devotes substantial amount of time to client's representation. Name of firm: not false or misleading; trade name not in connection w/ gov't agency/employee.
must ensure "firm has in effect measures" that all attorneys comply with PRC. A "direct" supervising atty must ensure compliance of subordinates. Direct instruction to violate rules or ratification of actions creates liability for misconduct.
generally liable for own actions unless instructed by supervisor and arguably not a violation of the rule
no contractual restrictions on right to practice in a law firm
unless it concerns retirement benefits or settlement of clent controversy
sale and purchase of law practice
allowed with 30 day notice to client to obtain consent; pending litigation requires court approval; existing fee arrangement is binding
advertising and solicitation in general
applies to public media or written communications intended to elicit business from/in FL. Advertising is communication w/ the public at large; commercial speech is protected by the 1st and 14th amendments.
advertising and solicitation: prohibitions and limitations
commercial speech prohibited only if "false, misleading, deceptive, or use of testimonial," but may limit by regulations that: 1-serve a substantial gov't interest, 2-directly and materially advance" that interest, and 3-are "narrowly tailored" to serve the substantial interest.
advertising and solicitation: basic rule
statements may not include: 1-material representation of law or fact-false, misleading, unsubstantiated in fact or deceptive, including by omission of material information; 2-references to past successes or results obtained; 3-promises of results or improper methods to receive certain results that violate the RPC; 4- comparisons to other lawyer services unless factually substantiated; 5-testimonials
advertising and solicitation: content for advertisements and unsolicited written communications
required content: name of at least one lawyer in firm or lawyer referral service and location of office. Permissive content: specific information that if sole content of communication will exempt attorney from filing and evaluation requirement: 1-lawyer's name, office location, and phone number; 2-date of bar admission; 3-professional licenses and educational degrees; 4-foreign language ability; 5-fields of law practiced; 6-fee schedules; 7-military service; 8-participation in prepaid legal services; 9-credit card accepted; 10-firm member as PSA rep; 11-scales of justice; 12-common salutary and punctuation.
pro hac vice
admission to practice in another district; when in front of tribunal it is required; fill out a form and pay a fee
advertising and solicitation: rules for advertisements only
1-no statement contending "approved by the FL Bar;" describing quality of services; or advertising in areas of law not currently practicing; 2-may contain illustrations, visual or verbal descriptions, etc. as long as not deceptive, misleading, or confusing; 3-may not contain the voice or image of a publicly recognizable celebrity; 4-if going to be referred to another atty, must say so in ad; 5-annual published ads w/ fees must be honored one year from publication, all others 90 days, unless expiration date specified
advertising and solicitation: internet communications
websites must disclose all: 1-jurisdictions of lawyer(s) licensed to practice; 2-office locations; 3-subject to advertising rules; 4-additionally emails must state "legal advertisement."
advertising and solicitation: evaluation of advertisements
must file a copy of the ad with the FL Bar 20 days prior to first dissemination if TV or radio, or prior to or concurrently with all other mediums. Exemptions from filing requirement include: permissive content only; PSAs that identify charitable contribution; professional announcements; publication listings; communications mailed to existing or former clients or other lawyers
advertising and solicitation: payment
no payments for referrals and no payment for another lawyer's advertisement not within same firm
advertising and solicitation: solicitation definition
individual contact with the intent to entice the person to hire you; compliance by attorney or agent.
advertising and solicitation: prohibited solicitation
solicitation to prospective clients with no prior relationship and significant motive is pecuniary gain
advertising and solicitation: permitted solicitation
WRITTEN communication that is: 1-marked "advertisement" in red ink on envelope and first page and sent regular US mail, 2-no coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence, 3-recipient not already represented, 4-lawyer not previously advised to not send communication, 5-lawyer is unaware of recipient's mental health status in exercising reasonable judgment in selecting a lawyer, 6-minimum of 30 days since litigious incident occurred, 7-does not resemble pleading or other court document, 8-sent by US mail only
advertising and solicitation: referral services
lawyer may accept referral from RS only if: 1-RS complies with communication rules of FL Bar; 2-RS receives no fee that constitutes fee-sharing; 3-referrals made only to those permitted to practice; 4-carries or requires each lawyer to carry $100k malpractice insurance per claim/occurrence; 5-furnishes FL Bar quarterly updates of all participating lawyers and FBNs and those permitted to act on behalf of RS; 5-responds to FL Bar inquiries regarding misconduct w/i 15 days; 7-no representation of "approved by the FL Bar;" 8-uses legal or fictitious name in all communications; 9-affirmatively states in ads "lawyer referral service."
FL certification standards are met and "Board Certified ____ Lawyer" "Specialist in ____" or "B.C.S. _____"
atty-client relationship in general
lawyer has a fiduciary duty to the client. This includes a duty of loyalty, confidentiality, diligence, communication, and competence in representation. An atty must always act in the best interest of his client; duty to render public interest legal service; report and aspire to 20 annual pro bono hours or $350 to legal aid
atty-client relationship: accepting representation
must not avoid appointments unless good cause shown; may not refuse to represent indigent appointment; disabled clients are treated normally, but may appoint a guardian if reasonable belief client cannot adequately act in own interest; may not avoid appointment unless violates law, unreasonable financial burden, repugnant
atty-client relationship: scope of representation
may be contractually limited. Client made decisions: sue, settle (must tell client of all offers), testify, plea, jury/bench trial, appeal. Atty made decisions: procedural and tactical: court, depositions, discovery, continuances, exceptions: atty must defer to client when it comes to money to proceed