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27 Cards in this Set

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PROFESSIONAL CONDUCT
PROFESSIONAL CONDUCT
[PART 1]
ENTERING INTO LAWYER-CLIENT RELATIONSHIP
[PART 1]
ENTERING INTO LAWYER-CLIENT RELATIONSHIP

1) Conflicts of Interest

2) Attorney's Fees

3) Contingent Fees

4) Referral Fees
CONFLICTS OF INTEREST
CONFLICTS OF INTEREST:

A Lawyer MUST NOT represent a Client if the Lawyer's exercise of INDEPENDENT PROFESSIONAL JUDGMENT in the representation of the Client may be MATERIALLY LIMITED by the Lawyer's responsibilities to another Client UNLESS:

(i) The Lawyer REASONABLY BELIEVES that the REPRESENTATION WON'T be adversely affected; and

(ii) The Client CONSENTS in WRITING after CONSULTATION.


MULTIPLE CLIENTS/SINGLE MATTER: When representation of multiple Clients in a single matter is undertaken, the consultation must include CONSULTATION MUST INCLUDE an EXPLANATION of the IMPLICATIONS of the COMMON REPRESENTATION and the ADVANTAGES and RISKS involved.
PROHIBITED TRANSACTIONS
PROHIBITED TRANSACTIONS:

A Lawyer MAY NOT enter into a business transaction or take a pecuniary interest adverses to a Client unless:

(i) The transaction is FAIR and REASONABLE;

(ii) There is FULL DISCLOSURE in WRITING to the Client; and

(iii) The Client CONSENTS in WRITING after a reasonable OPPORTUNITY to SEEK INDEPENDENT COUNSEL.
CONFLICTS OF INTEREST WITH FORMER CLIENT
CONFLICTS OF INTEREST WITH FORMER CLIENT:

A Lawyer who has represented a Client in a matter MUST NOT thereafter:

(i) Represent another Client in the SAME or SUBSTANTIALLY RELATED matter in which that Client's interests are MATERIALLY ADVERSE to the interests of the Former Client UNLESS the Former Client CONSENTS after consultation; or

(ii) USE INFO RELATING TO the representation to the DISADVANTAGE of the Former Client, EXCEPT a) when permitted my rules relating to confidentiality of information or b) when the information has become generally known.
IMPUTED DISQUALIFICATION
IMPUTED DISQUALIFICATION:

The DISQUALIFICATION of a Lawyer due to a CoI with Present or Former Clients is IMPUTED to the REST OF the Lawyer's FIRM.

If a Lawyer leaves a firm, his OLD FIRM MAY REPRESENT a Client whose interests are adverse to a Departed Lawyer's Client that the Departed Lawyer took with him, UNLESS:

(i) It is in the SAME or SUBSTANTIALLY RELATED matter; and

(ii) A REMAINING Lawyer actually has CONFIDENTIAL INFO of the Former Client.
SAFEKEEPING OF PROPERTY
SAFEKEEPING OF PROPERTY:

A Lawyer must keep Client's property SEPARATE from his own.
DECLINING OR TERMINATING REPRESENTATION
DECLINING OR TERMINATING REPRESENTATION:

A Lawyer MUST NOT represent (or MUST WITHDRAW) if:

(i) The representation will RESULT in a VIOLATION of the RULES or LAW;

(ii) The Lawyer's PHYSICAL / MENTAL condition MATERIALLY IMPAIRS his ability to represent the Client; or

(iii) The Lawyer is DISCHARGED.
ATTORNEY'S FEES:

DUTY TO CHARGE A REASONABLE FEE
DUTY TO CHARGE A REASONABLE FEE:

The fee arrangement for representation of a client is a matter left for the individual attorney and client. However, there are certain principles governing the setting of fees and the forms of compensation. A fee MUST NOT BE EXCESSIVE. The eight [8] factors considered in determining the reasonableness of a fee are:

(1) TIME/Labor required;

(2) Availability RETAINER (i.e., whether the particular employment will preclude other employment);

(3) Fee amount USUALLY charged;

(4) AMOUNT involved and the RESULTS obtained;

(5) LIMITATIONS on time;

(6) NATURE/Length of the professional RELATIONSHIP;

(7) EXPERIENCE, reputation and ability of the Lawyer; and

(8) Whether the fee is FIXED or CONTINGENT.
ATTORNEY'S FEES:

COMPENSATION FROM A THIRD PARTY
COMPENSATION FROM A THIRD PARTY:

A Lawyer MAY NOT accept compensation for representing a Client from someone other than the Client UNLESS:

(i) The Client CONSENTS after consultation;

(ii) There is NO INTERFERENCE with the Lawyer's IPJ or with the A-C Relationship; and

(iii) Information relating to representation of the C is protected as required by the CONFIDENTIALITY rules.
AWARD OF ATTORNEY'S FEES
AWARD OF ATTORNEY'S FEES:

In FL, trial courts may only award attorneys' fees when provided by:

(1) Statute or K;

(2) Rule (e.g., when recovery in an action exceeds a certain percentage of the settlement offer); or

(3) Sanction for a claim or defense not supported by facts or brought for the purpose of unreasonable delay, etc.
AWARD OF ATTORNEY'S FEES:

AMOUNT OF FEES
Award of Attorneys' Fees
AMOUNT OF FEES:

Trial courts have great discretion to award attorneys' fees as justice requires, provided there is competent evidence in the record to support the findings and a reasonable person could agree with the court's order.

Factors that may be considered by the court include:

(i) SCOPE and history of the litigation;

(ii) DURATION of the litigation;

(iii) MERITS of the respective positions;

(iv) Whether the litigation was brought primarily to HARASS; and

(v) The existence and course of PRIOR or PENDING litigation.
CONTINGENT FEES
CONTINGENT FEES

A Contingent Fee is a fee that is dependent on the successful resolution of a C's case and PAYABLE from the JUDGMENT PROCEEDS.

Contingent Fees are PROHIBITED in DOMESTIC Relations matters and in representation of ∆ in CRIMINAL cases.

The FL Bar Rules set out detailed guidelines for contingent fees. A fee in excess of the guidelines is presumed to be excessive, but the presumption can be rebutted. The guidelines provide for fees ranging from 15% to 40% (depending on the stage at which a case is resolved and appeals).

Every contingent fee arrangement MUST BE IN WRITING and must state:
(i) METHOD by which the fee is to be determined, including the percentage or percentages that accrue to the L in the event of settlement, trial or appeal;
(ii) Litigation and other EXPENSES to be deducted from the recovery; and
(iii) Whether such expenses are to be deducted BEFORE/AFTER CALCULATION of the contingent fee.

The Client MUST receive, PRIOR TO SIGNING the agreement, the STMNT of CLIENT'S RIGHTS as required by the FL Bar Rules.

Each participating attorney assumes JOINT RESPONSIBILITY for the C's representation.
REFERRAL FEES
REFERRAL FEES

A REFERRAL FEE, whereby the primary attorney pays a portion of his fee to a second attorney who suggested him to the client, is UNETHICAL.

However, a Lawyer MAY ethically divide fees with an outside attorney if:

(i) The division is in proportion to the services performed by each lawyer; or

(ii) By written agreement with the client, each lawyer assumes joint responsibility for the representation and the agreement fully discloses that a division of fees will be made and the basis upon which the division will be made.
[PART 2]
COMMUNICATIONS ABOUT LEGAL SERVICES
[PART 2]
COMMUNICATIONS ABOUT LEGAL SERVICES:

(1) SOLICITATION

(2) COMMUNICATIONS WITH UNREPRESENTED PERSONS
COMMUNICATIONS CONCERNING A LAWYER'S SERVICES
COMMUNICATIONS CONCERNING A LAWYER'S SERVICES:

A Lawyer MUST NOT make a FALSE or MISLEADING communication of his services, including:

(i) Omitting a necessary fact that would make the statement as a whole misleading;

(ii) Statements likely to create an unjustified expectation about the results a lawyer can achieve;

(iii) Implications that the lawyer can achieve results by unlawful means; and

(iv) Comparisons with other lawyers that aren't factually substantiated.
SOLICITATION
SOLICITATION:

A lawyer may not solicit professional employment from a prospective C with whom the L has no family or prior professional relationship when a significant motive for the L's doing so is the L's pecuniary gain.

FL law prohibits solicitation by contact in person, through the mail, by telephone or telegraph, or by any other means.

However, a L may solicit an accident victim in writing if at least 30 days have passed since the accident.
COMMUNICATIONS WITH PERSONS REPRESENTED BY COUNSEL
COMMUNICATIONS WITH PERSONS REPRESENTED BY COUNSEL:

A Lawyer MUST NOT KNOWINGLY communicate about the subject of the representation with a represented person, without that person's lawyer's permission.

In the case of a represented ORGANIZATION (corporation), the rule prohibits communications by the opposing party's lawyer, concerning the subject of the representation, with person's whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
COMMUNICATIONS WITH UNREPRESENTED PERSONS
COMMUNICATIONS WITH UNREPRESENTED PERSONS:

When dealing with an unrepresented person, the L may not state or imply that he is disinterested.

If the unrepresented person misunderstands the L's role in the matter, the L must take reasonable steps to correct the misunderstanding.
[PART 3]
DUTIES AND BOUNDS OF
A LAWYER'S REPRESENTATION
[PART 3] DUTIES AND BOUNDS OF A LAWYER'S REPRESENTATION

(1) COMPETENCY

(2) DUTY OF CONFIDENTIALITY

(3) DUTY TO PROTECT CLIENT'S PROPERTY

(4) PREVENTION OF UNLAWFUL ACTIVITY

(5) FINANCIAL ASSISTANCE TO CLIENTS

(6) LEGAL AND NONLEGAL SERVICES
COMPETENCY
COMPETENCY:

Once having entered into an A-C relationship, a L must act competently and with care in handling legal matters for that client. Competent representation requires the KNOWLEDGE, SKILL, THOROUGHNESS and PREPARATION reasonably necessary for representation.
DUTY OF CONFIDENTIALITY
DUTY OF CONFIDENTIALITY:

A lawyer MAY NOT reveal information relating to the representation of a client, UNLESS:

(1) Client CONSENTS after FULL DISCLOSURE;

(2) The disclosure is IMPLIEDLY AUTHORIZED in order to carry out the representation; OR

(3) To PREVENT the client from committing a FUTURE CRIMINAL ACT (not prior to criminal acts) which is likely to result in DEATH or SBHarm.


Duty of Confidentiality vs. Attorney-Client Privilege: [Slide 3]
Duty of Confidentiality vs. Attorney-Client Privilege:

The ATTORNEY-CLIENT PRIVILEGE applies only to communications made DURING THE COURSE OF THE RELATIONSHIP and covers the attorneys' formal testimony.

The DUTY OF CONFIDENTIALITY protects from any disclosure ALL information related to the representation HOWEVER AND WHENEVER DERIVED.
DUTY TO PROTECT CLIENT'S PROPERTY
DUTY TO PROTECT CLIENT'S PROPERTY:

An attorney must hold in trust, SEPARATE FROM HER OWN PROPERTY, funds and property of clients or 3rd persons that are in the attorney's possession in connection with representation.

All funds, including advances for fees, costs and expenses, MUST be kept in a SEPARATE bank account maintained in the state where the attorney's office is situated or elsewhere with the consent of the client or 3rd person, and the account must be clearly LABELED as a "TRUST ACCOUNT."

Additionally, funds entrusted to an attorney for a SPECIFIC PURPOSE are HELD IN TRUST and MUST be APPLIED ONLY for that purpose. Such funds are NOT subject to counterclaim or set-off for attorney's fees, and a refusal to account for and deliver over the property upon demand is a conversion.
PREVENTION OF UNLAWFUL ACTIVITY
PREVENTION OF UNLAWFUL ACTIVITY:

A lawyer must NOT counsel or assist a client in conduct that the lawyer knows or reasonably should know is crimnal or fraudulent, but a lawyer MAY discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client in a good-faith effort to determine the validity, scope, meaning, or application of the law.

When a lawyer knows or reasonably should know that a client expects assistance not permitted by the RPC or other law, the lawyer MUST advise the client of the relevant limitations on the lawyer's conduct.
FINANCIAL ASSISTANCE TO CLIENTS
FINANCIAL ASSISTANCE TO CLIENTS:

A lawyer may NOT provide financial assistance to a client in connection with pending or contemplated litigation, EXCEPT THAT:

(1) A lawyer MAY ADVANCE COURT COSTS and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and

(2) A lawyer representing an INDIGENT CLIENT may pay court costs and expenses on behalf of the client.
CANNOT ACQUIRE A PROPRIETARY INTEREST
CANNOT ACQUIRE A PROPRIETARY INTEREST:

A lawyer may NOT acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, EXCEPT that a lawyer MAY:

(1) ACQUIRE A LIEN granted by law to secure the lawyer's fee or expenses; and

(2) Contract with a client for a reasonable CONTINGENT FEE in a CIVIL case.
LEGAL AND NONLEGAL SERVICES
LEGAL AND NONLEGAL SERVICES

A lawyer who provides nonlegal services to a recipient that are not distinct from legal services provided to that recipient is subject to the rules regulating the bar with respect to the provision of BOTH legal and nonlegal services.

A lawyer who provides nonlegal services to a recipient that are distinct from any legal services provided to the recipient is subject to the rules with respect to the nonlegal services if the lawyer knows or reasonably should know that the recipient might believe that the recipient is receiving the protection of the attorney-client relationship.