FLORIDA PROFESSIONAL CONDUCT - Amazon S3s3.amazonaws.com/mythm-vids-prod/FL.Lidsky.Professional... · 2018-11-04 · FLORIDA PROFESSIONAL CONDUCT PROFESSOR LYRISSA LIDSKY UNIVERSITY

FLORIDA PROFESSIONAL CONDUCT PROFESSOR LYRISSA LIDSKY

UNIVERSITY OF FLORIDA LEVIN COLLEGE OF LAW

CHAPTER 1: ADMISSION TO THE LEGAL PROFESSION

Who regulates admission to the Florida Bar? ________________________________________________

A. Requirements for Admission

C _____________________________________

A _____________________________________

K _____________________________________

E _____________________________________

1. Good Moral Character Requirement

o Honesty, trustworthiness, respect for the rule of law, _______________________________, and ________________________________________

o Crimes of "moral turpitude" or bad moral character include: murder, perjury, ________________________________, _______________________________

o Other conduct that indicates a lack of good moral character includes academic misconduct, certain types of involvement in civil lawsuits, ____________________________ misconduct, ________________________________________________________________________.

o Duty to ________________________________________: What conduct in connection with filling out the application for bar admission indicates lack of good moral character? _______________________________ or failing to correct a known misapprehension

2. Age Requirement

o An applicant must be at least ______________________________________.

3. Knowledge Requirement

o New lawyers must pass the bar; o Take a course called Practicing with Professionalism; and o Complete _____________ elective basic CLEs during the _____________________________

reporting cycle

4. Education Requirement

o Must attend an ________________________________________ law school

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B. Regulation after Admission

• Law is a _____________________________________________________ profession—lawyers have a duty to report the _______________________________________ of other lawyers and judges.

• Is the duty to report another lawyer's conduct mandatory?

o Answer: ___________________________

• When does the duty arise?

o When the other lawyer's violation of the RPC raises a _______________________________ question as to the lawyer's honesty, _____________________________________________, or _________________________________ to practice law.

o However, the rule does not require disclosure of information protected by the confidentiality provisions of the RPC.

Example 1: Attorney Ann learns that Attorney Bob fraudulently billed a client for hours he never worked (thereby violating the rules regarding fees). Attorney Ann must report Attorney Bob to the appropriate professional authority because fraudulent billing raises a __________________________________ question as to Attorney Bob's ________________________________________.

Example 2: Same fact as above, but Attorney Ann learns the information about Attorney Bob's billing from her client, who instructs Ann not to reveal it. Attorney Ann may not report Attorney Bob because the information is _________________________________ by the confidentiality provisions of the RPC.

• May the lawyer report the misconduct anonymously?

o Answer: ___________________________ o The law says you must be __________________________________________ to

____________________________ against the attorney or judge you have reported.

• The duty to report applies to judicial misconduct. • Must the lawyer comply with the RPC when she is not acting as a lawyer?

o Answer: ________________

Example 3: A lawyer is subject to discipline (including potential disbarment) for dishonesty while acting as the president of a company or for receiving a felony conviction for possession of a controlled substance.

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CHAPTER 2: THE PRACTICE OF LAW

A. Types of Practices

• Lawyers who share office space ordinarily are not considered a firm, but if they hold themselves out as a law firm they will be treated as a ________________________________ for purposes of confidentiality and ____________________________________.

• Firm names may not be __________________________, misleading, or ________________________________________.

Example 4: The Superhero Law Firm would probably be treated by the Bar as _____________________________________ rather than merely humorous. The same applies with Legal Eagle Law Firm, or the Department of Justice Law Firm as a firm name.

• Is pro bono service to the poor mandatory?

o Answer: _________________. However, annual reporting to the Bar of pro bono services is mandatory.

o Note: The RPC states that attorneys should provide at least 20 hours of services to the poor or contribute at least $350.

B. Limitations on Association with Non-Lawyers

• Underlying principle: A lawyer cannot set up his practice in a way that _______________________________ his professional _________________________________.

• Partnerships to practice law ___________________________ include non-lawyers as partners. • Authorized business entities set up to practice law for a profit must not allow a non-lawyer:

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

2. To be a _______________________________________ director, officer, etc.; or

3. To ____________________________________________________ the lawyer's professional judgment.

Example 5: A lawyer may not form a partnership with an accountant to provide tax advice to clients. A malpractice lawyer cannot set up a partnership with a doctor or nurse to assist with the preparation of cases.

Example 6: May a law firm that is organized as corporation hire a non-lawyer as its CEO? _____________________.

C. Fee Sharing

• General rule: A lawyer or law firm may not share legal fees with _________________________. The exceptions (when fees may be shared with non-lawyers) are:

1. Payments to the ____________________________ of deceased lawyers for work done before death;


2. ___________________________ of a deceased, _______________________________, or disappeared lawyer's practice;

3. ________________________________ for non-lawyer employees based on extraordinary work performed;

Note 1: Fees may not be shared in the form of a bonus when based on referral of cases or calculated by a percentage of fees recovered.

4. Sharing of court-awarded fees with _____________________________________ pro bono organizations; and

5. Pensions or ___________________________________________ plans.

D. Lawyers' Responsibilities and Liabilities to Each Other in a Firm

1. General Rule

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

1. The lawyer ___________________________ the conduct, or ratifies with knowledge; or

Example 7: A partner orders an associate to "pad" the fees billed to a client with hours the associate never worked. Both partner and associate are subject to discipline.

2. The lawyer has _____________________________________ authority over the other lawyer and knows of the conduct when it could be remedied, but fails to take reasonable ________________________________ action.

2. Duties of Partners/Supervisory Attorneys

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

Example 8: A common issue is when partners don't make sure that the non-lawyers know about ______________________________________ obligations.

3. Duties of Subordinate Lawyers

o Can a subordinate lawyer just do whatever she is ordered to do by her supervising attorney? Answer: _____________!

o Rule: A subordinate lawyer may do what the supervising attorney orders only if it is a reasonable _________________________________________________ of an _____________________________________________ question of professional duty.

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 _______________________________________________ even if a court or disciplinary authority determines that there was a conflict in the representation.

4. Duties Regarding Non-lawyer Assistants

A lawyer or law firm can be responsible for misconduct of non-lawyer assistants, including secretaries, paralegals, and law clerks.

Exam Tip 1: Duties regarding non-lawyer assistants is a topic often tested on the bar exam.

a. Training

A managing lawyer or partner must make reasonable efforts to ensure that the firm has reasonable _______________________________ to provide reasonable assurances that the non-lawyer's conduct is compatible with the professional obligations of a lawyer.

Example 10: Lawyer represents Brad Pitt in his divorce from Angelina Jolie. Lawyer (and her paralegal and secretary) learn various "juicy details" that the media would love to hear. Unless both her paralegal and secretary have been trained on the obligations of _________________________________________, the lawyer will be in trouble when one of them sells these details to the media.

Example 11: Lawyer has a small firm and one assistant. Lawyer need not have a formal training session on the rules of professional conduct for his assistant (as he might if he were a large law firm). However, Lawyer must make reasonable efforts to ensure his assistant knows, for example, that client confidences must be safeguarded.

b. Supervision

A lawyer must make _________________________________________________ to ensure that the non-lawyer's conduct is compatible with the lawyer's professional obligations.

Example 12: Lawyer sends out a contract drafted by his paralegal without reviewing it. The contract has a serious error that costs the client lots of money. The lawyer bears "_________________________________________________" for the mistake, and he violated the rules by not reviewing the work product of the paralegal.

Example 13: Lawyer may not send a paralegal to take a deposition because non-lawyer assistants must work under the direction or supervision of a lawyer. This would also violate the rule prohibiting assisting another in the ______________________________________________ practice of law.


E. Unauthorized Practice of Law

1. In General

o The practice of law involves ____________________________________________________. o Conduct is likely to involve the unauthorized practice of law if it involves giving legal

____________________________ or performing services tailored to address the specific needs of an individual client, as opposed to discussing law in the abstract.

Example 14: Filing pleadings involves the practice of law.

Example 15: Providing general advice to landlords on Florida eviction law in a seminar is likely not the practice of law.

Example 16: I am currently giving you advice about the law in Florida. Even if I were not licensed, and even if I didn't have a law degree, this lecture would NOT involve the unauthorized practice of law because I am not applying Florida law to address a specific legal need of a client.

Example 17: The world's foremost expert in Admiralty Law has a winter house in Florida. While he is there for the winter, a friend has an accident on board a ship in Miami and asks Admiralty Law Expert to help him. Admiralty Law Expert drafts a complaint and files it in federal district court in Miami. Assuming Admiralty Law Expert is not licensed in Florida, this conduct would involve the unauthorized practice of law.

o A licensed Florida lawyer may not:

1. Practice in another ______________________________ where she is not admitted; or

2. ___________________________ someone else in unauthorized law practice, except:

a. The lawyer may assist a pro se litigant; and

b. The lawyer may supervise a ______________________________________________________________________.

2. Penalties for Unauthorized Practice of Law

a. Non-lawyers:

1. _____________________________________________________________

2. _____________________________________________________________

b. Lawyers:

1. Civil Penalties

2. Criminal Penalties

3. _______________________________________________________________________


3. Exceptions

o Authorized ________________________________________ practice is allowed when:

1. Association with and ______________________________________________________ by a Florida lawyer in the matter;

2. Pro hac vice admission;

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

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

o Pro hac vice admission is required if the lawyer will be appearing before a ___________________________________ in a jurisdiction where she is not licensed.

CHAPTER 3: FEES

Exam Tip 2: This area is likely to be tested on the bar exam.

A. General Rules

General rules to remember about fees: [Mnemonic: CRACkeD]

1. C___________________________________________ is crucial;

2. R___________________________________________ is required;

3. A___________________________________________ on fees and availability retainers are acceptable;

4. C___________________________________________ fees are constrained (more than other types of fees); and

5. D___________________________________________ fees is dicey (unless you follow the special rules).

B. Communication

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

• New Clients: The lawyer must ____________________________________________ the basis or rate of the fee, preferably in _________________________________________, upon commencement of the representation.


C. Reasonableness

1. General Rule

o Fees must not be illegal, ________________________________________, clearly ___________________________________________, or generated by employment obtained by advertising or solicitation that violate the RPC.

o Fee agreements that violate this rule are ________________________________________. o Costs charged to the client must also be _________________________________________.

2. Excessive Fees

A fee is excessive if:

1. A lawyer of ordinary _________________________________________ would have a definite and firm conviction that the fee exceeds "a reasonable fee" to such a degree it constitutes overreaching or unconscionable _____________________________________; or

2. ______________________________________ or lies were used to obtain the fee.

3. Reasonableness

Reasonableness is judged by a number of factors:

1. _______________________________________________ required to carry out the representation, including novelty, complexity, difficulty, and skill required;

2. Likelihood that it _____________________________________ other employment;

3. ___________________________________________ fee charged in locality for similar legal services;

4. Significance of or amount involved in representation, responsibility involved in representation, results obtained;

5. Time _____________________________________ or special demands;

6. ______________________________________ and __________________________________ of relationship with client;

7. ____________________________________________ or reputation of lawyer; and

8. Whether fee is fixed or ________________________________________________.

Example 18: A rich client asks Lawyer to handle a legal name change. Lawyer declines. Buffett offers to pay $500,000. May Lawyer accept the fee? ________________. Lawyer may be disciplined if he accepts the fee.

Example 19: An intellectual property lawyer takes on a copyright infringement claim on behalf of Microsoft. The lawyer may charge more than usual to compensate for the fact that the representation will cause her to be


________________________________________________ off numerous cases involving Apple in the future.

Example 20: Law firm charges clients 20 times more for copying documents than Kinko's would charge. The costs are probably excessive and would violate the RPC.

Example 21: Lawyer enters into contingent fee arrangement with Client on a case that promises to be complex and difficult to win. To Lawyer's surprise, the case settles for millions after 10 hours of work. The reasonableness of a contingency fee is judged by whether the fee was reasonable when _____________________ into by the lawyer and client, so it is likely reasonable.

D. Advances on Fees and Availability Retainer

1. Advance-on-Fees

o Many lawyers protect their ability to collect a fee by asking for an amount as an "advance" that they put in the client _____________________________________________ and then deduct periodically after work is performed and the client is billed.

Example 22: What if the attorney takes a $10,000 advance-on-fees and only works two hours at $200 per hour. The client then fires the attorney.

o If the attorney is discharged or quits, he must return the _____________________________ portion.

2. Availability Retainers

o These are paid to "_____________________________________" the lawyer's availability for whenever the client needs legal representation.

o The lawyer earns the money instantly upon agreeing to be available for the specified time.

E. Contingent Fees

Fee whose payment or amount ________________________ on the _________________________ obtained for the client

1. Basic Requirements

1. Must be a _________________________________________________________________;

2. Must be ______________________________________ by the client AND all participating _______________________________________________;

3. Percentages that accrue to the lawyer in the event of ________________________________, trial, or _____________________________________ must be specified in the agreement;

4. Must include whether ___________________________________________ will be ______________________________________________ from recovery; and


5. Must include whether expenses are deducted ______________________________________ the contingent fee is calculated.

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 ________________________.

2. Extra Requirements in Personal Injury-Based Torts Cases

1. Written contract

Must state that client has read and understood _________________________________________________________________ and the client must sign it.

• The client must receive a signed copy.

Must state that client can ________________________ within three business days of entering into it and does not have to pay the attorney for any work done if it is cancelled.

Note 2: This is a consumer protection device designed to make sure that clients are entering into contingency contracts in an informed manner.

2. Statement of Client's Rights

Must be provided and signed by the lawyer and client. Client must be given a copy and the lawyer must retain a copy in the client's file.

3. Prohibition on Contingent Fees

o Barred in _________________________________________________ o Barred in _________________________________________________ cases when the

outcome is contingent on securing _________________________________, 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 _______________ 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).

4. Contingent Fee Caps

o Fees that exceed the caps are presumed to be clearly ______________________________, unless rebutted.


o Before filing of answer or demand:

____________________________ of any recovery up to $1 million; ____________________________ of any portion of recovery between $1-2 million; and ____________________________ of any portion of recovery above $2 million

o After filing answer or demand:

____________________________ of any recovery up to $1 million; ____________________________ of any portion of recovery between $1-2 million; and ____________________________ of any portion of recovery above $2 million

o Limits are lower if the trial is on damages only (33 1/3% of recovery up to $1 million, then 20% between $1 and $2 million, then 15% of the portion of recovery above $2 million).

An additional 5% can be added if an appellate proceeding or ____________________________________________ action to recover the judgment is required.

5. Medical Liability Cases

A lawyer who enters into a contingent fee agreement must:

1. Provide client with ___________________________________, orally and in _______________________________, with Florida Constitution's fee limit provision (Art. I, §26).

2. Inform client that unless waived, client may receive no less than _________________ of the first $250,000 of all __________________________________ received, exclusive of costs. The client is entitled to _________________ of all damages in excess of $250,000, exclusive of costs.

3. If the attorney refuses to represent absent waiver, the attorney must inform the client if the lawyer is unwilling to accept the representation under the terms of the ____________________________________________________________________ and specify, orally and in writing, of alternative terms the lawyer would agree to as well as the client's right to seek representation from a lawyer who will comply with the Constitution's terms or a lawyer willing to accept the representation on a non-contingent basis.

4. Waiver of the constitutional right is possible, but client must do so in ________________________, under ___________________________, and in a form provided by the RPC.

F. Division of Fees

Exam Tip 3: These rules are technical, but are likely candidates for testing.

• 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 the lawyer assuming ___________________________ authority and 25% goes to the lawyer assuming _______________________________ authority.


2. Court authorization: If both lawyers participate _________________________________, a court may authorize fees that do not comport with the 75%/25% requirement.

• In other cases, lawyers NOT in the same firm may divide fees if the total fee is ___________________________________________ and:

1. The division is in proportion to the service performed; OR

2. By ___________________________________ 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 the above requirements.

CHAPTER 4: ADVERTISING AND SOLICITATION

Exam Tip 4: These rules are very likely to be tested. Florida is one of the most aggressive states in the nation in regulating lawyer advertising and solicitation, and the Bar recently updated its rules to address online and social media advertising.

A. Difference Between Advertising and Solicitation

• Advertisements are ________________________________ communications targeted at a _________________________________ audience.

• For purposes of the rules, an advertisement includes any written or spoken communication seeking legal employment. This includes_______________________________ communications (e.g., LinkedIn).

• Solicitation is targeted to a _______________________________________ identified as requiring specific legal needs.

• Solicitation is regulated more strictly because it involves a greater danger of ______________________________________ or invasion of privacy by the lawyer.

Note 3: All solicitation is ____________________________________, but not all advertising is solicitation.

B. Prohibited Advertisement Content

• An advertisement may not be ______________________________________, __________________________________, or _____________________________________.

Exam Tip 5: Make sure to analyze whether the advertisement is false and misleading from an ordinary layperson's perspective. The point of this rule is consumer protection.

• An advertisement is false, misleading, or deceptive if it:

o Contains a ____________________________________ misrepresentation of fact or law; o Implies the existence of a material ______________________________________;


o ______________________________________ material information necessary to prevent it from being false or misleading;

o Contains ______________________________ references to past successes or results; o Promises (future) success or specific results; o States or implies that the lawyer can achieve results by means that violate the RPC or other

law; o Compares the lawyer's services with others, unless the claims can be substantiated; o Contains a testimonial that is false, is written or drafted by the lawyer, is paid for, or does

not include a disclaimer that a prospective client may not obtain the same or similar results; o Uses a government title (e.g., judge, senator, president, mayor) unless you clarify with

modifying terms such as "former" or "retired"; o Uses language that characterizes a lawyer's skills, experience, reputation, or record, unless

objectively verifiable

Note 4: A lawyer may not engage in potentially misleading advertising unless it contains information or statements that clarify the potentially misleading portion.

Example 25: An ad refers to an attorney as "The Best Attorney in Florida." The ad violates the RPC because it is not objectively verifiable.

Example 26: An ad states truthfully that a lawyer has won all of the cases he has ever taken to trial. The ad does not violate the RPC because it is verifiable. The context, however, must be careful not to imply that the same success is guaranteed in future cases.

Example 27: An ad states "if you've been injured, you need an attorney." This statement is misleading because an attorney is not always required. It would also be misleading or "manipulative" to have pictures of money bags in an ad, because a layperson would be likely to find this statement misleading.

Example 28: An ad states truthfully that an attorney is Board Certified by the Florida Bar as a criminal defense attorney and that he speaks Spanish. The ad is permissible because it is truthful and not misleading.

Example 28.1: A lawyer advertises that he provides legal services in divorce and criminal law. If the lawyer has not actually handled a divorce case in five years and does not intend to handle any in the future, the ad is misleading.

Example 28.2: A Florida lawyer advertises truthfully that she is "Board Certified by the Florida Bar in Criminal Trial Law." This ad is permissible.

Example 28.3: A Florida lawyer advertises truthfully that she is "Board Certified" by the Academy of Lawyers. This is permissible only if the certification program of the Academy is accredited by the Florida Bar and the lawyer includes the full name of the certifying organization.


C. Applications of the Rules

1. To whom do the rules apply?

o The rules apply not just to lawyers admitted in Florida but also to ___________________________________________________ whose ads target Floridians. They also apply to ads run as __________________________________

2. When do the ad rules not apply?

o Lawyer communications with family members o Lawyer communications with other lawyers o Announcement cards mailed to friends, relatives, and current and former clients telling

them a lawyer has changed association or address

D. Permissible Content

The name and address, date of bar admission, acceptance of credit cards, and technical and professional licenses granted by the state or recognized licensing authorities.

E. General Requirements

1. Name/Location

o Name of _________________________________________________responsible for ad; and o ___________________________________ of the practice

2. Filing Requirements/Copies

o Most ads must be filed with the Florida Bar for evaluation of compliance at least __________________ prior to the first dissemination.

o The lawyer may run the ad without discipline if the bar does not respond within 15 days, at least until the Bar notifies the lawyer of noncompliance and she continues to run the ad.

o The requirement does not apply to information requested by a ________________________________ client.

o Lawyers must maintain copies of and records regarding ads for ______________________________ after last dissemination.

F. Requirements for Specific Types of Ads

1. Visual Portrayals & Illustration

Example 29: An ad contains a picture of a fist. This would be considered misleading and manipulative.

Example 29.1: An ad contains a dramatization of a car wreck, with the attorney counseling a victim. Dramatizations are permitted only if they contain a prominent notice stating: DRAMATIZATION. NOT AN ACTUAL EVENT.


2. Television and Radio

o No content that is deceptive, misleading, _____________________________________, or likely to confuse the viewer.

o No recognizable ___________________________________________ voice or image.

Exception: a lawyer may employ a local announcer or radio personality as long as she does not provide an endorsement or testimonial.

Example 30: A television ad contains the voice of Oprah Winfrey. The ad is deceptive and misleading. It is permissible to use a spokesperson as long as she is not a publically recognizable celebrity.

o No content that makes the spokesperson appear to be the lawyer's employee if the spokesperson is not, though a disclaimer can "cure" any erroneous impression.

o No background sound except instrumental music.

Editor's Note 1: The Rule limiting background sounds to instrumental music has been repealed. Background sounds in television and radio advertisements are permitted.

o Filing for TV & Radio

All ads must be filed at least 20 days before first dissemination.

3. E-mails

o A lawyer may not send or allow to be sent on her behalf unsolicited emails to prospective client unless the emails:

Comply with the rules for solicitation Include the bona fide office location of the lawyer Begin the subject line with "Advertisement"

G. Content of Advertisements

• All characterizations of quality must be ______________________________________________ • All statements regarding areas of practice must be true • A lawyer cannot state or imply Florida Bar approval • A lawyer may not use celebrity endorsements or testimonials • All statements about fees must disclose client's liability for expenses • A lawyer must honor a stated fee for _____________________________, unless the ad provides

otherwise

o If in a yearly publication (e.g., yellow pages), must honor for a year

• If a lawyer claims to be board certified, s/he must be certified by:

o The Florida bar;


o An organization accredited by the Florida Bar, and the ad must contain the full name of the organization; or

o Another state bar that applies standards reasonably comparable to Florida's, and the ad must contain the name of the state bar.

H. Public Service Announcements

A public service announcement briefly identifying a lawyer or firm as a contributor is exempt from the filing requirements for advertisements.

I. Paying Companies to Create Advertisements

A lawyer cannot normally pay for a referral, but may pay reasonable costs to companies that make the lawyer's ads.

Note 5: A lawyer may not pay for the advertisement of a lawyer not within the same firm.

CHAPTER 5: SOLICITATION

A. In General

• Defined: communication targeting a specific individual with specific legal needs. • Solicitation for pecuniary gain is ordinarily ____________________________________ due to

danger of undue __________________________________, intimidation, overreaching of a vulnerable client.

• Solicitation permitted:

o ____________________________ members, ____________________________ clients, or ________________________________________ clients; and

o ______________________________________ solicitation

B. Written Solicitation Requirements

• Marked as advertisement on ____________________________________ and inside; • Marked as advertisement on subject line of email; • Accompanied by a _______________________________ statement with information about

________________________________ and experience of lawyer or firm; • If disseminated by lawyer referral service, must be accompanied by written statement with

lawyer qualification information; • If contract for employment included in solicitation, it must be marked SAMPLE in red ink, and Do

Not Sign in large font; and • Not be made to resemble an ________________________________, such as a pleading

Note 6: Solicitation must not be ________________________________ (all solicitations are also advertisements subject to ad rules).


C. Specific Prohibitions

• Personal injury or wrongful death cases: The lawyer may not send written communications unless the accident or disaster occurred more than _______________________ prior to mailing.

• Communication to a person already represented by counsel in specific matter: The lawyer may not send a solicitation regarding a specific matter if the lawyer knows or should know the person is already represented by counsel.

• Person has requested no solicitation: if person says "no", you cannot solicit • Person is physically or emotionally incapable of using reasoned judgment in hiring a lawyer • Violence Injunctions: The lawyer may not contact the respondent named in an injunction for

protection when he knows or has reason to know the respondent has not been served with notice of process.

Note 7: Solicitation cannot be false, fraudulent, misleading, deceptive, nor may it employ coercion, duress, fraud, overreaching, harassment, intimidation, or undue influence.

D. Requirements for Written Solicitation Triggered by "Specific Occurrence"

Example 31: Lawyer learns that prospective client was arrested for DUI.

In situation where specific occurrence triggers solicitation by lawyer, any written solicitation must comply with the following:

• First sentence must read: "If you have already retained a lawyer for this matter, please disregard this letter";

• Must state who will handle the matter; • Must say how the lawyer ____________________________________ of prospective client's

need for legal services; and • The envelope must not reveal the _______________________________ of the client's legal

problem.

E. Lawyer Referral Services and Directories

1. Referral Service

a. A lawyer must not accept referrals from a service unless the service:

Does not engage in solicitation that the _______________________________ would be prohibited in engaging in by the RPC;

Does not receive a fee that would violate the division of fees rule; Does not refer clients to unauthorized practitioners of law in Florida; Carries, or requires the lawyers to whom it refers to carry, at least $100k per occurrence

professional liability insurance; Furnishes quarterly information to the Florida Bar about its members and employees; Responds within __________________ to bar counsel inquiries; Does not imply endorsement by the Florida Bar;


Uses its legal name or registered fictitious name in all communications with the public; Affirmatively identifies as a lawyer-referral service; and Affirmatively states that lawyers pay to participate in the service.

b. Responsibility of a Lawyer

If you accept referrals from a service, you may be responsible if they advertise in violation of the RPC if you know or should have known that the referral service is not in compliance or if you failed to seek information to determine compliance.

2. Lawyer Directory

a. A lawyer may not advertise in a directory unless the directory:

Does not engage in solicitation that the lawyer would be prohibited from engaging in by the RPC;

Does not receive a fee that would violate the division of fees rule; Does not list practitioners unauthorized to practice law in Florida; Responds within ________________________ to bar counsel inquiries; Does not imply endorsement by the Florida Bar; Uses its legal name or registered fictitious name in all communications with the public;

and Affirmatively identifies as a lawyer-directory service;

b. Responsibility of a Lawyer

If you advertise in a lawyer directory, you may be responsible if they advertise in violation of the RPC if you know or should have known the directory was not in compliance or if you failed to seek information to determine compliance.

CHAPTER 6: THE ATTORNEY-CLIENT RELATIONSHIP

A. In General

• Key Duties of a Lawyer:

1. ________________________________________________

2. ________________________________________________

• Key Roles of a Lawyer:

1. ________________________________________—a relationship of the utmost trust and confidence.

2. ________________________________________—the lawyer is empowered to take actions on behalf of the client that are legally binding.


B. Formation of the Relationship

Test for formation of the attorney-client relationship: _________________________________________________________________________________.

1. Prospective Clients

Initial Client Meeting: Lawyer must preserve client confidences.

Example 32: Client seeks representation from lawyer in criminal matter and confesses that he killed his wife. Lawyer decides to decline representation, but is still bound by the duty of confidentiality.

2. Clients with Diminished Capacity

o Lawyer must maintain ________________________________ relationship to extent reasonably possible.

o If not possible, ask for appointment of _______________________________________

C. Scope, Objectives, and Means of the Representation

• Client—controls the _____________________ and ____________________________________ of the representation

• Lawyer —in charge of the _____________________________________________ (with client consultation)

• Scope of representation can be ___________________________________________ between attorney and client but limitations must be:

1. Reasonable under the circumstances; and

2. Given with ____________________________________________________ after consultation

Example 33: Client has a viable tort claim against a family member but chooses not to pursue it to maintain harmony within the family. Lawyer is bound by Client's limitations on the scope of the representation (e.g., "Sue X, but don't sue Y" or "Pursue claim X, but not claim Y").

Example 34: Client wants Lawyer to draft a will. Lawyer informs Client that a simple will is $300 dollars but that he might be somewhat better served by a trust, the formation of which would cost $10,000 in legal fees. Client opts for the $300 will. Lawyer has not breached the RPC because the client determines the scope of the representation. However, if Lawyer agrees to write a $300 will for Warren Buffett, the limitation on the representation is so severe that the lawyer's representation would not meet minimum demands of competence, and thus would violate RPC.


1. Client Decisions

a. Civil Cases: Acceptance of Settlement

Lawyer must ________________________________ client that a settlement offer has been received.

Client has ultimate authority. A settlement made with __________________________________________ is binding.

Example 35: Lawyer is representing Client at a mediation and Opposing Counsel offers Lawyer $100,000 to settle. Lawyer, believing that is acceptable to Client, agrees on Client's behalf to settle the case. Client is not satisfied and states he did not authorize the settlement. Lawyer, acting with the apparent authority of Client, can bind Client.

b. Criminal Cases

Client must decide whether to ______________________________________________. Client must decide whether to waive _____________________________________ right. Client must decide whether to accept or enter a ________________________________.

Example 36: Criminal defense lawyer reasonably decides not to extensively cross-examine a witness at trial because it would only bring more attention to the adverse testimony. Client insists that Lawyer cross-examine witness further. If disagreement between Lawyer and Client cannot be resolved, Lawyer may withdraw or the client may fire Lawyer, but the decisions on means and tactics are within Lawyer's authority.

Example 37: Lawyer represents Husband in a child custody case. Husband desires to fight to the bitter end for exclusive custody of his child. Lawyer may exercise independent judgment and candidly counsel Husband that this may not be in the best long-term interests of his child. The objectives (whether to seek sole custody) are determined by the client, but the means (whether to adopt "scorched earth" tactics) are determined by the lawyer after consultation with the client.

2. Counseling Crime or Fraud Prohibited

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

o The lawyer may discuss the legal consequences of any proposed course of action with the client.

o Withdrawal is required if necessary to avoid assistance in crime or fraud.

Example 38: 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.

Example 39: 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.

CHAPTER 7: CONFLICTS OF INTEREST

A. Analysis

Steps in analyzing a conflict of interest problem:

1. Who is the _____________________________________? [Identify the client]

2. Is there a ______________________________________? [Tip: Diagram the potential conflict]

3. Is it "consentable?" [If there is a conflict, can it be cured by consent?]

B. Current Client Conflicts

1. General Rule

o A lawyer must NOT represent a person if (i) the representation is _____________________ ___________________ to a current client, or (ii) __________________________________ limits the representation of a current client, unless the conflict is "consentable."

2. Direct Adversity

o Representation of one client (C1) is _____________________________________________ to another client (C2).

o "Directly Adverse": Ask yourself whether the clients will be lined up against each other on opposite sides of the "v" [C1 v. C2].

Example 40: Lawyer represents Client One (C1) in a divorce. Client Two (C2) consults Lawyer about suing C1 for breach of contract. Because the case would then involve C2 v. C1, the representation is _____________________________. Lawyer is unable to provide both clients his undivided loyalty and exercise independent professional judgment on behalf of both. In addition, Lawyer's representation might compromise his obligation to protect client confidences.

Exam Tip 6: Even if you forget the exact wording of the rules, try to remember that any situation involving a current client that might compromise the lawyer's exercise of independent professional judgment, divide the lawyer's loyalty, or tempt the lawyer to use confidential information against the client violates the conflict of interest rules.


3. Material Limitation

o Representation is prohibited if there is a __________________________________________ that the representation of one or more clients (C1) will be materially limited by the lawyer's responsibilities to another client (C2), a _______________________________ client (FC2), a _______________________________________ (3P), or a personal interest of the lawyer (L).

Example 41: Client seeks to hire Lawyer to represent Client in a libel action against Fred, Lawyer's best friend of 20 years. Lawyer's duty to zealously pursue the action with undivided loyalty would likely be compromised by his personal feelings for Fred. Lawyer should decline the representation.

Example 42: Client seeks to hire Lawyer to sue Law Firm X for malpractice. Lawyer's wife is one of three partners at Law Firm X. Lawyer should decline the representation because his personal interest would interfere with his duty of undivided loyalty to the client.

4. Consentable Conflicts

o A conflict is consentable if the lawyer ____________________________________________ he can provide:

1. Competent and ________________________________________ representation to each affected client;

• Disinterested lawyer test: The conflict is not consentable when a __________________________________________________ lawyer would believe the ______________________________ should not agree to the representation under the circumstances.

2. Representation is not prohibited by law;

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

Example 43: Lawyer cannot represent Driver and Passenger involved in a car accident against the car manufacturer for a defect in the car if Driver's negligence will be in issue.

4. Consent after _______________________________________ must be given and confirmed in _____________________________________ or clearly stated on the __________________________ at a hearing.

o Consent required in multiple client representations: always requires consent after consultation.


C. Conflicts Involving Former Clients

Exam Tip 7: Lawyers must provide former clients with complete protection of confidentiality; however, the duty of loyalty is not as strict after a lawyer no longer represents a client. Thus, for example, a lawyer may sue a former client in a matter unrelated to the prior representation.

1. General Rule

o Representations ________________________________________________________ to a former client in the same or a substantially related matter are prohibited without ____________________________________________________.

2. Material Adversity

Example 44: Lawyer negotiated the sale of a residence for Former Client. Two years later, prospective New Client, who bought the residence, wishes to sue Former Client for fraud in failing to disclose flooding in the basement. The representation of New Client is materially adverse to Former Client.

3. Substantially Related Matter

o Test:

Do the two matters involve the same _________________________________________ or legal ____________________________________________?

Would the current matter involve the lawyer attacking work done for the former client?

Example 45: Lawyer previously represented Client in securing environmental permits to build shopping center. New Clients, who own neighboring property, want Lawyer to oppose rezoning of the property, claiming environmental concerns forbid it. The new client matter is substantially related to the former client matter.

Example 46: Lawyer previously represented Client in securing environmental permits to build shopping center. New Client is a tenant in the completed shopping center and is resisting eviction by Former Client for failure to pay rent. Lawyer may represent New Client because the two matters are not the same or substantially related.

4. Informed consent

o _________________________________ all former client conflicts

5. Confidential Information

o Lawyer may NOT use confidential information against a _____________________________ client or ________________________________ confidential information.

o Exception: Ethics rules allow revelation of information that has become __________________________________________________________________.


Example 47: Lawyer previously represented Tiger Woods in an unrelated matter (e.g., purchase of house) and is now suing on behalf of Client for breach of a "morals" clause in an endorsement contract. Lawyer would be allowed to use information regarding Woods' affairs because the information has become generally known. However, if Lawyer knows Woods has an STD by virtue of the prior representation, Lawyer would not be able to use that information to the detriment of Woods.

CHAPTER 8: BUSINESS TRANSACTIONS WITH CLIENTS AND IMPUTED DISQUALIFICATION

A. Business Transactions with Clients

1. General Rule

o Transaction and terms must be ______________________________ and __________________________________________, fully disclosed in writing;

o Must advise client to seek _____________________________________________________ in writing; and

o Client must ________________________________________ in writing.

2. Literary and Media Rights Rule

o A lawyer is prohibited from negotiating for, or acquiring literary or media rights relating to the representation of a client ________________________________ THE CONCLUSION of all aspects of the matter that gave rise to the representation.

o Rationale: You don't want the representation to be distorted by the lawyer's desire to make a good story.

3. Soliciting Gifts Rule

o A lawyer may not solicit _______________________________________ gifts unless the lawyer is _____________________________________________ to the client.

Example 48: Lawyer says to client, "Why don't you give me your Jaguar?" RPC are violated.

Example 49: Grateful client gives lawyer his Jaguar as a present. Lawyer may accept it, but the gift is voidable by the client.

B. Influence on Representation by Persons Other than Client

1. General Rule

o Third parties cannot be allowed to ________________________________ representation or _________________________________________ with the lawyer's professional judgment or other duties to client, including loyalty and confidentiality.


2. Special Rule for Third Party Payments

Example 50: 17-year-old is arrested for driving under the influence of alcohol and his parents hire lawyer. The parents come in to pay the legal fees. The lawyer cannot accept the parents' money unless the conditions below are met.

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

1. Client gives __________________________________________________;

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

3. Confidentiality is _________________________________________________.

C. Organization as Client

Exam Tip 8: Identify the client. Is the lawyer representing only the organization, or the organization AND some of its constituents?

• General Rule: Normally, the organization is the only client. A lawyer may represent both the organization and its constituents (for example, the CEO) as long as their interests are aligned. However, dual representations always require ________________________________________.

• Lawyer must not ___________________________________ a constituent of the organization into thinking he ________________________________ them when he does not.

Example 51: Coca-Cola truck driver runs into school bus, killing several children. While driver is in hospital, Coca-Cola's lawyers interview him and obtain damaging admissions, which they then use to try to shift liability away from Coca-Cola. The lawyers violated the RPC because they failed to explain to the driver that they represented only Coca-Cola and not the driver.

D. IMPUTED DISQUALIFICATION

1. Lawyers in Firms

o If a lawyer is tainted by a conflict, every lawyer in the firm is tainted by the conflict and ____________________________________________________.

2. Non-Lawyers in Firms

o If a non-lawyer in the firm is tainted by a conflict, the conflict is not ____________________ to the firm.

o ______________________________________ of the non-lawyer is required.

3. Switching Firms

a. Lawyers Joining New Firms

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


1. ___________________ or ____________________________________________ matter in which the new lawyer or his old firm previously represented a client whose interests are;

2. Materially ____________________________________ to that person; and

3. About whom the lawyer has _________________________________________________ information about the former client.

Example 52: 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.

b. Lawyers Leaving Old Firms

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

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

2. The two matters are the _____________________________ or substantially related; and

3. Any lawyer remaining in the firm has acquired confidential information about the former client.

CHAPTER 9: LAWYER'S DUTIES AND OBLIGATIONS TO A CLIENT

A. Duty of Competence

• How can a new lawyer be competent in his first case out of law school?

1. Preparation, preparation, preparation

2. Association with experienced lawyer in field

• May a client consent to less than competent representation?

Answer: _____________________!

B. Communication with Client

A lawyer must:

1. Keep the client reasonably _______________________________________;

2. Promptly reply to requests for information; and

3. Convey ALL ___________________________________________ or _______________________ offers promptly, unless the client agrees otherwise.


Example 53: Client says to Lawyer, "Don't even tell me about settlement offers of less than $50,000." It is permissible for Lawyer not to tell Client of a settlement offer for less than $50,000.

Example 54: Client says to Lawyer, "Make sure and notify me as soon as the settlement check comes in because I'm going to Las Vegas next week." Lawyer may not delay in telling Client the check has arrived just because Lawyer thinks Client shouldn't spend it all in Vegas.

C. Duty of Diligence and Promptness

• Lawyers owe clients ____________________________________________________, though this doesn't require offensive tactics.

• How do lawyers violate this duty?

1. Failure to control _____________________________________;

2. ___________________________________ or procrastination;

3. Lack of organization; or

4. Failure to follow matter through to completion.

D. Duty to Prospective Clients

Generally, a lawyer must:

1. Keep confidences; and

2. For conflicts purposes, treat as ______________________________________________

E. Safekeeping a Client's Property

• Cardinal rule: No ______________________________________________ of property. • Contents of a client trust account:

1. Client _________________________________

2. Client _________________________________

3. Property of third parties

4. Funds in which two or more persons have an interest (e.g., the settlement check)

5. Funds over which there is a ______________________________________

6. Advances on fees, costs, expenses

• Interest on Trust Accounts (IOTA): Florida attorneys must deposit short-term funds belonging to clients and third parties in an IOTA account.

o Interest accrues to ___________________________________________________________.

• Trust accounting records must be kept.


o _________________________________________________ required o _________________________________________________ of account required o Florida Bar may audit the account.

F. Attorney-Client Privilege and the Duty of Confidentiality

1. In General

o Attorney-Client Privilege: A _________________________________________ privilege that applies in proceedings before a tribunal where the lawyer may be asked to testify or produce evidence about a client communication.

o Ethical Duty of Confidentiality: The duty of confidentiality applies in a much wider range of situations to protect all information ______________________________________ to the representation of a client, from ________________________________________________.

Example 55: 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.

Example 56: While interviewing an employee of a client, employee told lawyer that the client was an alcoholic. This conversation is not protected by the ACP but the information revealed is protected by the ethical duty of confidentiality because it is information related to the representation.

2. Attorney-Client Privilege

o The attorney-client privilege applies to:

1. ________________________________________________ communication;

2. Between attorney and client;

3. Made for the purpose of seeking or giving ______________________________________.

Example 57: Client comes to see Lawyer to seek legal advice. Client's girlfriend is with him. Client seems nervous and asks if girlfriend may remain with him during the interview. The answer should be no because otherwise the presence of the third party will destroy the attorney-client privilege.

o Who can waive the privilege? _________________________________________________. o How long does the privilege last?

___________________________________________________________________________.

o Exceptions to the ACP:

1. ___________________________________________________________ exception


2. Disputes between attorney and client or between clients

Example 58: Client tells Lawyer that he plans to rob a bank and sketches a detailed plan of the bank and how he plans to proceed. Lawyer may be forced to testify and turn over the document under the future crime-fraud exception to the attorney-client privilege.

Example 59: Lawyer represents John and Fred in establishing a partnership. Later, the relationship between John and Fred deteriorates. John sues Fred and subpoenas Lawyer to testify about their conversations in setting up the partnership. Lawyer must testify because a dispute between joint clients falls within an exception to the attorney-client privilege.

Example 60: Lawyer interviews Client with the assistance of a paralegal. The communication is protected by the ACP because the paralegal is acting as a representative of the lawyer in assisting the client.

3. Duty of Confidentiality

o A lawyer may not reveal information relating to the representation of a client, whatever the source, unless:

1. Client gives informed consent; or

2. Disclosure is ______________________________________ authorized to carry out representation.

Example 61: Lawyer has represented Client for many years. Lawyer observes that Client is an alcoholic. Lawyer may not reveal the information. The ethical duty of confidentiality applies to information relating to the representation, whatever the source.

Example 62: Lawyer drafts a complaint using information Client told him in their initial interview. Disclosure of the information in the complaint is impliedly authorized to carry out the representation.

Example 63: It is well known in the community that Warren Buffett is very rich. Warren Buffett's lawyer may say, "My client is a very wealthy man," without worrying about violating the ethical duty of confidentiality because the information is generally known.

o Exceptions to the ethical duty of confidentiality:

1. Mandatory Disclosure: A lawyer MUST reveal information relating to the representation to the __________________ the lawyer reasonably believes __________________________ to prevent a client from:

• Committing a ___________________________________; or


Example 64: Client tells Lawyer he plans to kill his ex-wife. Lawyer must reveal the information.

• To prevent __________________________________ or substantial ________________________________________________.

Example 65: Client tells Lawyer his company has accidentally discharged toxic substances into the town water supply. Lawyer must reveal the information to the authorities.

2. Permissive Disclosure: A lawyer MAY reveal information relating to the representation to:

• Serve the client's interest, unless client refuses; • Establish a claim or defense on lawyer's behalf in a dispute between

_________________________________ and _______________________________; • Establish a defense to a criminal charge or civil claim _________________________

the lawyer based upon conduct which involved the client; • Respond to allegations in any proceeding concerning the lawyer's representation; or • Comply with the RPC.

Editor's Note 2: A lawyer may also reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to detect conflicts of interest arising from the lawyer’s change of employment or ownership of a firm, but only if it would not compromise attorney-client privilege or prejudice the client.

Example 66: Lawyer and Client are in a fee dispute and agree to arbitrate the matter. Lawyer may reveal information relating to the representation that is necessary to evaluate the value of legal services performed, but Lawyer may not reveal confidential information to a greater extent than necessary to substantiate his claim.

Example 67: Lawyer represents Client during trial and learns that a crucial document has been falsified by Client. If Client refuses to rectify the matter, Lawyer must reveal to the tribunal that the document is falsified in order to avoid assisting client fraud on the tribunal. This is one of the few instances where another RPC, Rule 4-3.3 (b), trumps the ethical duty of confidentiality.

CHAPTER 10: OBLIGATONS TO THIRD PERSONS, ADVERSE PARTIES, AND THE COURTS

A. In General

1. A lawyer may not _________________________ or misrepresent a situation.

2. A lawyer may not assist a client's crime or fraud.

3. A lawyer doesn't always have to reveal everything she knows.


4. Puffing in __________________________________________ is permissible.

B. Communications with Persons Represented by Counsel

1. General Rule

A lawyer must NOT __________________________________________ with a person known to be represented by counsel, unless:

1. The opposing lawyer ___________________________________; or

2. _________________________________________ by law.

Example 68: Opposing counsel's client calls Lawyer and says, "I'd like to talk to you. I think my lawyer is getting in the way of reaching a deal." Lawyer may NOT talk to opposing counsel's client in this scenario. Lawyer may tell his own client that the two clients may talk directly with each other.

2. Represented Organization

o Absent consent from the organization's lawyer, there is no communication with ____________________________________________ who fall into one of the three following categories:

1. Employees who exercise _______________________________________ authority in the matter (e.g., CEO);

2. Any employee in the organization alleged to have committed the _____________________________________________________ at issue; or

3. The employees who have authority to make decisions about the course of the ____________________________________________.

Example 69: Lawyer represents personal injury client who was run over by a pizza delivery driver. Lawyer may not communicate directly with the driver or manager without consent of the pizza company's counsel.

o Former employees of an organization: Consent of the organization's lawyer is ___________________________________________________.

C. Unrepresented Persons

• A lawyer may talk to _________________________________________ persons, but may need to clarify his role.

Example 70: Lawyer represents Client in a battery action against John based on a barroom fight. Lawyer happens to meet John at a bar and John begins telling him about the fight. Lawyer asks about all the details. Lawyer has violated the RPC by pretending to be __________________________________.


Example 71: Lawyer represents Client who is charged with child neglect. Lawyer interviews the child's teacher, who asks whether she is likely to be prosecuted for failing to report signs of child neglect. Lawyer may not give legal advice to the teacher, other than the advice to consult with a lawyer.

• A lawyer who receives a document sent inadvertently must promptly ____________________ the sender.

D. Respect for Rights of Adverse Parties

• Lawyer may not bring ___________________________________________________ argument. • Lawyer should make reasonable efforts to ___________________________________ litigation

consistent with the client's interest. • Lawyer must not:

1. ________________________________________ access to evidence;

2. Alter or destroy evidence, or counsel another person to do so; or

3. _________________________________________ evidence, or counsel another to do so.

Example 72: Client hires Lawyer to defend him on murder charges. Client sets murder weapon on Lawyer's desk. Lawyer may not put it in his safe. Lawyer may not counsel Client to hide or destroy the weapon. If the weapon comes into Lawyer's possession, he must turn it over to the prosecutor.

E. Courts

1. Obligations to Tribunal Generally

o Don't lie; o Correct false statements of _____________________________________________; o Correct _______________________________________ evidence; o Disclose all controlling legal authority directly _______________________________ to a

client's position; o Don't allow client to testify falsely; o Take reasonable _________________________________________ measures to correct

client perjury, including, if necessary, disclosure; and o In ex parte proceeding, inform tribunal of all material facts that enable an informed

decision.

2. False Evidence

o Permissive: Lawyer MAY refuse to offer evidence she reasonably ______________________ is false.

o Mandatory:

Lawyer MUST refuse to offer evidence she __________________________ to be false.


Lawyer MUST _________________________________ false evidence when discovered.

3. False Testimony

o Lawyer must take reasonable remedial measures when the lawyer knows the client intends to lie to the tribunal.

Persuade the client not to lie; ____________________________________________ to offer testimony; and Elicit only _____________________________________ portions of testimony.

4. Duration of Obligation

o The duty of candor to the tribunal continues beyond the conclusion of the proceeding. o How far beyond? _______________________________

F. Communication with Judge or Official

In an adversary proceeding, a lawyer must not communicate or cause another to communicate as to the ____________________________________ of the cause of action with a judge or an official before whom the proceeding is pending except:

1. In the official proceeding;

2. In writing, with a copy promptly delivered to _________________________________________;

3. Orally, upon _________________________________________ to opposing party; or

4. As otherwise authorized by law.

G. Trial Publicity

• Don't say bad things about the tribunal during a trial. • Attorney may be disciplined if statements create a _____________________________________

likelihood of materially _____________________________________ adjudicative proceedings.

H. Special Responsibilities of Prosecutors

• Cannot knowingly prosecute a charge without ________________________________________. • Cannot seek a waiver of important ________________________________________________

from an unrepresented accused. • Must make timely ____________________________________________ of evidence negating

guilt or _____________________________________________ an offense. • With regard to sentencing, duty to disclose to defense and tribunal unprivileged mitigating

information, unless protective order relieves this obligation.


CHAPTER 11: WITHDRAWAL FROM REPRESENTATION, PROFESSIONALISM, AND DISCIPLINE

A. Mandatory Withdrawal

When MUST a lawyer withdraw from the representation of a client?

1. Continuing the representation will result in ____________________________________ of the RPC or other law.

o Key example: continuing in the representation will mean that the lawyer is assisting in _____________________________________________.

Example 73: Lawyer wrote an opinion letter on behalf of a client and sent it to a bank to support client's application for a loan. The bank issued the loan. After the loan is issued but before it has been fully repaid, Lawyer discovers that the opinion letter is false because of the client's fraud. Lawyer must withdraw from the representation of the client in the matter because Lawyer would otherwise be assisting an ongoing client fraud.

2. Lawyer's impairment, physical or mental, ______________________________________ his or her ability to represent the client.

3. Lawyer is ____________________________________________ by the client.

4. Client persists in a criminal or fraudulent course of action.

Example 74: Lawyer reasonably believes that Client is committing a crime by setting up foreign bank accounts for income not declared on U.S. tax returns. Lawyer advises Client on this matter, but Client persists. Lawyer must withdraw.

5. Lawyer's ________________________________ have been used to commit a crime or fraud.

B. Permissive Withdrawal

When MAY a lawyer withdraw from representation?

1. No material _______________________________ effect on the client (i.e., no harm, no foul).

2. Client insists upon a course of action that is ______________________________________, imprudent, or with which lawyer has ____________________________________ disagreement.

3. Client does not _______________________ after reasonable warning that the lawyer will withdraw.

4. The representation imposes an unreasonable _________________________________burden on the lawyer, or is rendered unreasonably difficult by the client.

5. ______________________________________________________

Reminder: A lawyer does not have to be engaged in the practice of law to be disciplined or sanctioned under the RPC.


Example 75: President Nixon was disbarred. Why? ________________________________________________________________.

Example 76: Lawyer completely refuses to pay child support.

Example 77: Lawyer sleeps with vulnerable client in the midst of a divorce.

Example 78: Lawyer is convicted of fraud, murder, or arson.

C. Professionalism

1. In General

o The Florida Bar has a renewed emphasis on _______________________________________ standards.

o Explicitly stated that it wants to emphasize holding lawyers to a higher standard and impose __________________________________________________ for professionalism violations.

2. Sources of Professionalism Standards ("DORIC")

1. D____________________________________________ of the Florida Supreme Court

2. O____________________________________________ to the Florida Bar

3. R____________________________________________ the Florida Bar

4. I____________________________________________ of Professionalism of the Florida Bar

5. C____________________________________________ of Professionalism of the Florida Bar

The two most important sources are the decisions of the Florida Supreme Court and the Rules Regulating the Florida Bar.

Exam Tip 9: Start with the Rules and decisions as the basis for analyzing whether a lawyer has engaged in misconduct subject to discipline or sanctions. Then, refer to the general principles in the Oath, Creed, or Ideals to supplement or reinforce your answer.

3. Oath of Admission

o It is explicitly a ground for disbarment to __________________________________________ the Oath of Admission to the Florida Bar.

o Most significant obligations of the Oath:

1. Support _______________________________________ of Florida and the United States

2. Cannot bring ________________________________________________________

3. Cannot _____________________________________________________ a judge or a jury

4. Must preserve confidentiality

5. Must abstain from _________________________________________________________


Example 79: Rude and abusive language in a court proceeding directed at opposing counsel or the judge.

6. Aid the __________________________________________________________________

7. Not to engage in unnecessary delay

4. Creed of Professionalism and Ideals and Goals of Professionalism

o Reiterate the obligations already found in the Rules and the Oath in slightly different language

More abstract

o Rules—A lawyer may not engage in conduct prejudicial to the administration of justice. o Creed—Lawyers must uphold the dignity and esteem of the law, the judicial system, and the

legal profession.

5. Decisions of the Florida Supreme Court

o Conduct by counsel during a deposition in Delaware—Ratiner

The conduct ________________________________________________ to take place in Florida to subject you to discipline from the Florida Bar.

Court stated the conduct was outrageous, disruptive, and physically intimidating to the witness, opposing counsel, and other persons present.

o Counsel showed blatant discourtesy and disrespect to the judge during voir dire—Abramson.

Took place in front of the prospective jurors

o Counsel went after opposing counsel in open court—Martocci.

Humiliated and belittled opposing counsel

D. List of Lawyer Misconduct

1. It is misconduct in the state of Florida for lawyer to violate any of the Rules Regulating the Florida Bar or to _______________________________________________________________ someone else to do so.

2. Criminal acts showing _______________________________________________, ___________________________________________________, or fitness to practice law

3. Conduct involving dishonesty, fraud, deceit, or misrepresentation

4. Conduct ______________________________________________ to the administration of justice

5. It is misconduct to state or imply an improper influence on officials.

6. Failing to respond to a Bar inquiry ___________________________________________ is lawyer misconduct that will subject you to discipline and sanctions.


7. Refusing to pay _____________________________________________________

8. Having sexual relations with a client while representing them

Exam Tip 10: The most important rule to know is Rule 8.4(d) which states that a lawyer must not engage in conduct that is prejudicial to the administration of justice. This rule is most often cited as a basis for the discipline of lawyers.

E. Disciplinary Process

• In addition to the traditional grievance committees which investigate whether the Rules were violated, there is a supplement called the Attorney Consumer Assistance and Intake Program (ACAP).

o Fields and potentially resolves professionalism complaints against Florida lawyers o May not be overt rule violations but are important to clients

Example 80: Client cannot get his attorney to return his phone calls. Client calls the ACAP, they call the lawyer, and try to resolve the dispute.

Exam Tip 11: Professionalism issues are often merely components of essays.

[END OF HANDOUT]


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FLORIDA PROFESSIONAL CONDUCT - Amazon S3s3.amazonaws.com/mythm-vids-prod/FL.Lidsky.Professional... · 2018-11-04 · FLORIDA PROFESSIONAL CONDUCT PROFESSOR LYRISSA LIDSKY UNIVERSITY