Flashcards in Professional Conduct Deck (56)
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
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
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
atty-client relationship: conflicts of interest in general
atty must avoid relationships that will adversely affect his ability to exercise independent and professional judgment
atty-client relationship: adverse interests
may NOT undertake representation if representing one client would be directly adverse to another or if there is a substantial risk that such representation will materially limit the lawyer's responsibilities to another client. Exceptions: 1-reasonable belief in ability to provide competent and diligent representation to each client; 2-representations are not prohibited by law; 3-does not involve asserting position adverse to another client; 4-each client consents
atty-client relationship: other prohibited transactions
1-Owner and Financial interest adverse to client-must be fair, reasonable, and fully disclosed to client; 2-Proprietary interests in COA-only liens for attorney costs/fees or reasonable contingency fee in civil cases; 3-use of adverse client information-only with client's consent; 4-beneficiary designation-no solicitation, NO gifts, unless close familial relationship and NO preparation of instrument conveying such a gift; 5-literary or media rights-permitted after the conclusion of representation and w/ client consent; 6-financial assistance to client-only to pay/advance court costs and expenses; 7-3rd party compensation-only if client gives informed consent, no interference w/ independent and professional judgment, client information still protected; 8-aggregate settlements prohibited unless client consents; 9-limiting malpractice liability is prohibited; 10-settling malpractice claims with unrepresented clients unless explicitly informed of representation rights in writing; 11-insured clients-provide statement of insured clients' rights and keep the signed copy for 6 yrs; 12-local gov't attys-may not solicit/accept gifts to influence official act. corruptly use position for personal gain, disclose confidential information for personal or others' gain, represent client before branch served
atty-client relationship: former clients
must consent to new client representation where clients' interests are materially adverse, and atty may not use information gained from former client to his detriment or for the benefit of the new client, unless the information in question is "generally known" to the public
atty-client relationship: prospective clients
same as former clients, except: representation by DQ attorney's firm permissible if: 1-both affected and prospective clients consent in writing or DQ atty took reasonable measures to avoid exposure to more information than reasonable necessary, and 2-DQ atty is timely screened from participation and receives no fee, and 3-written notice promptly given to prospective client
atty-client relationship: mediators
3rd party neutrals-must explain NO representation and explain differences in roles
atty-client relationship: atty testimony
no client representation where the atty is likely to be a necessary witness. However, an atty can ethically testify at a client's trial regarding: uncontested matters, matters of formality, nature and value of legal services, and if testimony is necessary and withdrawal would create a substantial hardship to the client
atty-client relationship: corporate representation
represents organization, not individual members, but may represent individuals on other non-conflicting matters; may resign if highest authority requesting action that violates the law