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Bar - FL professional conduct
FL professional conduct

Additional Law Flashcards




Admission to legal profession - FL Supreme court
FL supreme court has exclusive authority to regulate admission to FL bar and to enact requirements for admission, which must bear a rational relationship to an applicant's fitness or capacity to practice law
Requirements for admission - education
-JD degree from accredited law school or unaccredited law school within one year of accreditation, or
-10 years practice of law, good standing, and work product showing scope and character of prevoius experience and practice at the bar
Requirements for admission - legal knowledge
-examination: must pass FL bar exam and MPRE within 25 months of passing FL bar
-basic skills course: for newly admitted attorneys to ensure they begin their careers with thorough and practical understanding of the law, including practicing with professionalism and continuing legal education; member deemed delinquent must show compliance and pay fees to be reinstated
Requirements for admission - character
-evidence of good moral character, adequate knowledge of standards and ideals of professional, and proof of fitness to perform responsibilities of an attorney
-moral turpitude: conduct that involves intentional dishonest and immorality, reflecting an applicant's bad moral character

other conduct
-record manifesting a lack of honesty, trustworthiness, diligence, or reliability of an applicant may constitute basis for denial of admission
-academic misconduct, unlawful conduct, violation of court order, misconduct in employment, evidence of drug or alcohol dependency, denial of admission to bar in another jurisdiction on character and fitness grounds
-disbarment: person not eligible to apply for readmission to FL bar for 5 years from date of disbarment or 3 years from date of resignation
-suspension: person not eligible to apply until expiration of suspension period in foreign jurisdiction, and not eligible to apply to FL bar until reinstated in his home state
-felony convictions and probation: person not eligible to apply for admission until his civil rights have been restored or probation period is over

duty to cooperate, applicant must not:
-knowingly make a false statement of material fact
-fail to disclose a fact necessary to correct a known misapprehension or knowingly fail to respond to a lawful demand for information from an admissions authority
-commit an act that adversely reflects on his fitness to practice law

procedural rights: applicants denied admission as a result of bad moral character can challenge Board's decision by 1) petitioning for judicial review, 2) confronting adverse witnesses, or 3) requesting a hearing before the board
Requirements for admission - age
must be 18 years or older
Withdrawal of bar application
-without prejudice: board can continue its investigation and adjudicative functions to conclusion
-with prejudice: board must immediately dismiss its investigative and adjudicative functions and applicant permanently barred from filing a subsequent application
Authorized house counsel
if exclusively employed by a business organization and are registered with FL supreme court as authorized house counsel, can undertake activities without taking FL bar

authorized activities
-giving legal advise to directors, officers, employees and agents of business organization
-negotiating and documenting all matters for business organization
-representing business organization in its dealings with any administrative agency or commission with jurisdiction

prohibited activities
-make appearances as counsel in any court in FL unless rules otherwise authorize or attorney is specially admitted
-represent any shareholder, owner, employee, or agent in or give advice on a matter unless otherwise permitted, or
-express a legal opinion to be relied upon by any person other than in the course of the authorized house counsel's representation of the business organization
Self-regulating profession
duty to report
-lawyer must inform appropriate professional authority when he knows that another lawyer or judge has committed a RPC violation that raises a substantial question as to lawyer's or judge's honesty, trustworthiness, or fitness to practice law
-lawyer is not required to disclose misconduct if he learned of it through misrepresentation of judge or lawyer, or if it occurred during course of mediation if information is privileged
-lawyer who reports a violation must be available to testify as to his knowledge of the violation

conduct while not practicing law: lawyer is subject to RPC at all times and a lawyer who fails to meet professional standards of conduct set forth in RPC will be subject to discipline
Continuing legal educaiton
-min requirements: 30 credit hours of approved CLE activity every three years
-failure to complete will result in member being delinquent

exemptions for
-active military service
-undue hardship
-non-resident members not delivering legal services or advice on matters governed by FL law
-members of full-time federal judiciary prohibited from engaging in private practice of law
-justices of FL supreme court and district courts of appeal, circuit courts, county courts, and other judicial officers/employees
-inactive members of FL bar
Conduct that constitutes practice of law
licensed attorney: can appear in proceedings, depositions, and other actions before court, can participate in negotiating and finalizing settlements, and may draft or sign documents that affect legal rights

unlicensed attorney: can interview clients, draft legal memos, and fill in blanks on standardized legal forms
Types of practices
law firm: lawyer or lawyers in partnership, professional corp, etc. authorized to practice law, or lawyers employed in legal department of organization; sharing office space or occasional consultation or assistance does not qualify; holding out to public as a firm does qualify
-partnership must in fact hold themselves as a partnership
-firm name: cannot use false, misleading or deceptive name
-must not use a name that implies a connection with government agency or public or charitable legal services organization, imply that firm is something other than private law firm, be false, misleading or deceptive, and be fictitious
-use of member's name who holds public office not permitted
-if multi jurisdictional firm, can use same name in different jurisdictions but must clearly indicate jurisdictional limitations on lawyers

legal corporation: no limited liability to clients, no non-lawyer members, but favorable tax treatment

legal services organizations: cannot serve persons having interests adverse to a client of lawyer, and cannot knowingly participate in an organization if it would have a material adverse effect or cause COI between organization's client and lawyer's client

voluntary pro bono work: strongly encouraged to provide at least 20 hours annually or pay $350 to legal aid organization and must report pro bono legal services annually to FL bar
Limitations on association with non-lawyers
partnership: not permitted with non-lawyer if activities consist of practice of law

other authorized business entities: cannot practice law for profit if non-lawyer owns any interest in entity, is a corporate officer or director, or has right to control or direct lawyer's professional judgment

sharing legal fees with non-lawyers: not permitted unless lawyer
-has an agreement with firm over a reasonable period of time after lawyer's death
-bought a deceased/disabled/disappeared lawyer's practice
-undertook to complete unfinished legal business of deceased lawyer
-pays bonuses to nonlawyer employees for work performed based on their extraordinary efforts on a particular case or over a specified time period
-shares court-awarded fees with a nonprofit, pro bono legal services organization that used lawyer
-pays a qualified pension, profit-sharing, or retirement plan
Lawyers' responsibilities and liabilities to each other in a firm - in general
lawyer is responsible for another lawyer's violation of RPC if lawyer
-orders/ratifies specific conduct, or
-has managerial authority or direct supervisory authority over other lawyer and knows conduct when consequences can be avoided/mitigated but fails to take reasonable remedial action
Lawyers' responsibilities and liabilities to each other in a firm - partners in a law firm
partners with comparable managerial authority must take reasonable measures (depending upon type and size of firm) that all lawyers in the firm conform to RPC
Lawyers' responsibilities and liabilities to each other in a firm - direct supervisor
must make reasonable efforts to ensure the other lawyer conforms to the RPC and is liable for any misconduct for failing to do so
Lawyers' responsibilities and liabilities to each other in a firm - duties of subordinate lawyers
-must conform to RPC even if acting under direction of a supervising lawyer, but not violating RPC if acting in accordance with supervising lawyer's reasonable resolution of an arguable question of professional duty
-subordinate lawyer has responsibility to undertake own analysis of the law to determine if supervising lawyer's conduct is reasonable
Lawyers' responsibilities and liabilities to each other in a firm - non-lawyer assistants
ex: paralegal, legal assistant, ex.

supervisory responsibility
-lawyer with comparable managerial authority must take reasonable measures (depending on type and size of firm) to ensure that firm has measures giving reasonable assurance that non-lawyer's conduct is compatible with professional obligations of the lawyer
-lawyer with direct supervisory authority over non-lawyer must make reasonable efforts to ensure that person's conduct is compatible with professional obligations of lawyer
-lawyer is responsible for non-lawyer's conduct that is in violation of RPC if lawyer ratifies conduct, or if lawyer is a partner with comparable managerial authority or direct supervisory authority and did not mitigate conduct by failing to take reasonable remedial action
Unauthorized practice of law
assisting non-lawyers
-lawyer may not assist non-lawyer in conduct that constitutes the unauthorized practice of law, but if he does so, may be subject to civil and criminal penalties as well as discipline under RPC
-non-lawyer who engages in unauthorized practice of law is subject to civil and criminal penalties, but not to discipline under RPC
-law school practice program: law students may provide direct representation to clients in litigation under supervision of admitted attorneys

court clerks and judges: may not practice law while serving in office

lawyers not admitted to practice in FL
-prohibits law office or regular presence in FL, claim FL bar admission, or appear in court unless otherwise authorized to do so
---authorized temporary practice: undertaken with FL bar-admitted lawyer who actively participates in a proceeding in which the lawyer has pro hac vice authorization
---appearance in a FL court: must be in good standing and eligible to practice in home state and associated with FL bar admitted lawyer who actively participates in proceeding where lawyer has pro hac vice authorization
---FL arbitration proceeding: no pro hac vice authorization required, and must be for client located in lawyer's home state or services are reasonably related to lawyer's practice or home state
Ancillary services
ex: trust services, accounting, real-estate counseling, tax preparation, that can be provided by non-lawyer

not typical protections of attorney-client relationship
-distinct from legal services: lawyer providing non-legal services is subject to RPC only if lawyer knows or reasonably should know that recipient might believe that she is receiving protection of client-lawyer relationship
-not distinct from legal services: subject to RPC for both legal and non-legal services

separate entity controlled by lawyer:
-lawyer who is affiliated with an entity providing non-legal services is subject to RPC if lawyer should reasonably know that the recipient might believe she is receiving the protection of attorney-client relationship

effect of disclosure of nature of service
-if lawyer makes reasonable efforts to avoid any misunderstanding by recipient receiving non-legal services, then lawyer is not subject to RPC
-efforts must include advising in writing that the services are not legal services and that the protection of client-attorney relationship does not exist
Fees - no excessive or illegal fees
-fees that were obtained through advertising or solicitation not in compliance with RPC are not permitted
-fees that are excessive are not permitted

clearly excessive fees:
-lawyer of ordinary prudence has definite and firm conviction that cost exceeds reasonable fee for services provided to such degree as to constitute clear overreaching or an unconscionable demand by attorney, or
-cost obtained by means of intentional misrepresentation or fraud upon client, non-client party or any court

reasonableness of fee factors
-time and labor required
-novelty and difficult of the questions
-skill required to perform the legal services properly
-likelihood that acceptance of client's employment will preclude other employment for lawyer
-customary fee charged in locality for similar services
-amount involved and results obtained
-time limitations
-nature and length of client relationship
-reputation, experience, diligence, and ability of lawyer
-fixed or contingent fees

reasonableness of costs factors
-nature and extent of disclosure about costs
-existence of agreement about client costs and how costs are calculated
-actual amount charged by third-party providers of services
-identification/allocation of costs or reasonable basis for costs
-reasonable charges for providing in-house services to client
-past course of conduct
Fees - retainers
advance-on-fees retainers: if attorney is discharged or withdraws from representing client, unused portion must be returned to client

availability retainer: lawyer earns money instantly and can put it directly into his account
Fees - fee contracts
enforceable, unless found to be illegal, clearly excessive, or obtained through advertising or solicitation not in compliance with RPC
Fees - contingent fees
specific requirements
-must be in writing, signed by client and lawyer, and state fee determination method
-fee determination methods include: lawyer's percentage, litigation and other expenses, and whether expenses are deducted before or after contingent fee is calculated
-no lawyer or firm may participate in the fee without the client's written consent

prohibited in criminal and domestic relations causes

requirements for personal injury, property damages, death, or loss of services due to tortious conduct cases
-K provisions: must state that: 1) client read, understands, signed and received a copy of Statement of Client's Rights before signing the K, 2) K may be cancelled within 3 business days of signing, and 3) client not obligated to pay attorney fees if K is cancelled
-division of fees: 1) lawyer with primary responsibility gets min 75% of total fees, 2) lawyer with secondary responsibility gets max of 25%, 3) any fee in excess of 25% is presumed to be clearly excessive (but it does not apply to cases where 2 or more lawyers or firms accept substantially equal active participation in providing legal services)

limitations: need prior court approval for any contingent fee exceed RPC guidelines or fee is presumed to be clearly excessive (rebuttable)
-settlement before filing of answer or demand for arbitration: 1) 33 1/3% of recover up to 1M, plus 2) 30% of recovery between 1M and 2M, plus 3) 20% of recovery exceeding 2M
-settlement after filing of an answer, demand for arbitration, or expiration of time period for either: 1) 40% of recovery up to 1M, plus 2) 30% of recovery between 1M and 2M, plus 3) 20% of recovery exceeding 2M
-trial on damages: 1) 33 1/3% of recovery up to 1M, plus 2) 20% of recovery between 1M and 2M, plus 3) 15% of recovery exceeding 2M
-post judgment: additional 5% of any recovery on judgment
-fee arrangements exceeding limitations: client can petition court for approval of any fee K if client has complete understanding of his rights and terms of K
-medical liability claim: client is entitled to receive no less than 70% of first 250k of all damages received, exclusive of reasonable and customary costs, and client is entitled to 90% of all damages in excess of 250k, exclusive of reasonable and customary costs

-contingent fee must not be excessive
-recovery received on future structured or periodic basis: calculated only on cost of structured verdict or settlement, or, if costs unknown, on present money value of structured verdict of settlement
Fees - credit plans
lawyer can accept payment but may not charge higher fee or additional charges
Fees - no mandatory arbitration clause
without advising client in writing that he should seek independent legal advice, and if used, lawyer must notify client in writing that he waives right to go to court to resolve any fee disputes
Fee splitting
lawyers in same firm: may legitimately share or split fees

lawyers from different firms: total fee must be reasonable and division is proportional to services performed, or lawyer assumes joint legal responsibility through written agreement with client and fully discloses basis of division of fees

referral fees: prohibited by RPC for mere recommendation of another lawyer, but referring attorney can inform client of a fee-sharing agreement, and fees can be divided if there is a joint legal responsibility, client agrees in writing, and total fee is reasonable
Sale of law practice
-permitted if entire practice or area of practice is bought or sold
-purchaser must honor all fee agreements and fees charged may not be increased as a result of the sale
-no substitution or termination of counsel during pending litigation unless authorized by court
-non-service cannot be included in proposed sale
Procedures for leaving law firms and dissolution of law firms
contact with clients
-departing lawyer: no unilateral contact unless lawyer's bona fide negotiations for joint communications through authorized representative are unsuccessful
-dissolution of a law firm: no unilateral contact unless lawyer's bona fide negotiations on method to notify clients are unsuccessful
-liability for fees and costs: client notice regarding liability for legal fees

nonresponsive clients
-departing lawyers: remains a client of the firm until he advises firm otherwise
-dissolution of law firm: remains client of lawyer until he advises otherwise
Advertising - communication that violates RPC
-contains material misrepresentation of fact or law
-implies existence of a material nonexistent fact
-fails to disclose material information necessary to prevent advertising from being false or misleading
-contains any reference to past successes or results obtained unless verifiable
-promises success or specific results
-states or implies that the lawyer can achieve results by means that violate the RPC or other law
-compares lawyer's services with other lawyer's services, unless factually substantiated
-contains testimonial that is false, written by lawyer paid for, or does not include a disclaimer
-uses government branch title before or after lawyer's name without saying "former" or "retired"
-uses words that characterize skills, experience, reputation or record unless objectively verifiable
-is potentially misleading

general rule: no false, misleading, or deceptive advertising
Advertising - application of rules
apply to written and spoken advertising in print and electronic form to lawyers advertising in FL, but not to communication between lawyers and other lawyers, family members, or current or former clients
Advertising - permissible content
truthful information
Advertising - general requirements
-who is responsible for the ad
-location of practice
-clear appearance and language of required statements
-must file ad with FL bar and maintain copies for three eyars
Advertising - specific requirements
no dramatization unless prominent display of statement: dramatization, not an actual event

television and radio ads must not
-deceive, mislead, manipulate or confuse viewer
-use publicly recognizable spokesperson, except the voice or image of local announcer or radio personality if person does not endorse or offer testimonial
-use voice or image that creates erroneous impression of being lawyer or her employee, unless with prominently displayed notice that voice or image is not an employee or member of firm
-have background sound other than instrumental music

no unsolicited e-mails unless they follow solicitation rules, disclose office locations, and labeled as ads in subject line
Advertising - contents
-no descriptive statements about quality of services, unless objectively verifiable
-ad only about areas of law currently practicing
-no stating or implying FL bar approval
-use of celebrity prohibited
-fees in ads must be honored and additional expenses must be disclosed
Advertising - public-service announcements
exempt from filing and review requirements
Solicitation - general rule
lawyer, his employees, or agents must not solicit professional employment from a prospective client in person, by telephone, or by other electronic device when a significant motive for doing so is pecuniary gain, but permitted for pro bono service

exception for family members or current or former clients
Solicitation - written communications
-page and envelope must be plainly marked "ad" in ink that contrasts with background and test and if email subject line must say ad
-must be accompanied by a written statement detailing background, training, and experience of lawyer or firm
-contract mailed with communication must be clearly labeled sample in red ink on top of each page of K and words do not sign must appear on signature line
-must no resemble legal pleadings, legal documents, brochures or pamphlets

-no communication for personal-injury, wrongful-death, or personal disaster action unless it occurred more than 30 days prior to mailing
-no communication if lawyer should know that addressee is represented by lawyer in specific matter or does not want to receive communications in general
-no communication that involves coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence, or contains false, misleading, or deceptive statement
-no communication if physical, emotional or mental state of addressee makes it unlikely that she would exercise reasonable judgment in employing a lawyer
Solicitation - lawyer-referral services
lawyer must not accept referrals unless service engages in no communication with public and in no direct contact with prospective clients in a manner that would violate RPC if communication or contact were made by lawyer
Attorney-client relationship - formation
initial client meeting
-attorney-client relationship is formed when a prospective client meets with a lawyer to seek legal advice, even if relationship ends after initial meeting
-no duty to accept representation of any client
-lawyer should not accept representation of a client unless she can perform such representation competently, promptly, without improper conflict of interest, and to completion

appointment by the courts: cannot avoid except for good cause

client with diminished capacity: must maintain a normal lawyer-client relationship to the extent reasonably possible
Attorney-client relationship - scope, objectives, and means of representation
client has ultimate authority of objectives of representation and attorney decides means to reach client's objectives

decisions made by client
-acceptance of settlement: lawyer must communicate all bona fide offers to client and final decision rests with client unless apparent authority to accept on client's behalf
-in criminal case, client decides to testify, right to trial by jury, and entry of plea

decisions made by attorney
-procedural tactics
-lawyer must exercise independent judgment and render candid advice

lawyer prohibited from counseling or assisting client in conduct that lawyer reasonably should know is criminal or fraudulent
-lawyer subject to discipline and criminal and civil liability, but can discuss legal consequences of conduct
-must avoid further assisting client in continuing conduct in violation of RPC and withdraw from representation

lawyer's representation of client: not an endorsement of client's political, economic, social or moral views or activites
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