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29 Cards in this Set
- Front
- Back
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Entering into Lawyer-Client Relationship - Conflicts of Interest - Rule
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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
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Entering into Lawyer-Client Relationship - Conflicts of Interest - Exceptions
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(1) the lawyer reasonably believes that the representation wont be adversely affected, AND
(2) the client consents after consultation |
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Entering into Lawyer-Client Relationship - Conflicts of Interest - Multiple Client Representation
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when representation of multiple clients in a single matter is undertaken, the consultation must include an explanation of the implications of teh common representation and the advantages and risks involved
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Entering into Lawyer-Client Relationship - Prohibited Transactions
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a lawyer may NOT enter into a business transaction or take pecruniary interest adverse to a client UNLESS:
(1) the transaction is fair and reasonable (2) there is full disclosure in writing to the client or the adversary, and (3) the client consents in writing after a reasonable opportunity to seek independent counsel |
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Entering into Lawyer-Client Relationship - Conflict of Interest with Former Client
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a lawyer who has represented a client in a matter must not thereafter:
(1) 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 (2) use information relating to the representation to the disadvantage of the former client, except when permitted by rules relating to confidentiality of information or when the information has become generally known |
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Entering into Lawyer-Client Relationship - Imputed Disqualification
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the disqualification of a lawyer due to a conflict of interest with present or former clients is imputed to the rest of the lawyer's law firm
the old firm may represent a client whose interests are adverse to a departed lawyer's client that the lawyer took with him, UNLESS (1) it is in teh same or a substantially related matter, and (2) a remaining lawyer actually has confidential information of the former client |
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Entering into Lawyer-Client Relationship - Safekeeping of Property
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a lawyer must keep clients' property separate from his own
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Entering into Lawyer-Client Relationship - Declining or Terminating Representation
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a lawyer MUST NOT represent (or must withdraw) if:
(1) the representation will result in a violation of the rules of law (2) the lawyer's physical or mental condition materially impairs his ability to represent the client, OR (3) the lawyer is discharged |
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Entering into Lawyer-Client Relationship - Duty to Charge a Reasonable Fee - Generally
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the fee arrangement for representation of a client is a matter left forthe individual attorney and client
there are, however, certain principles goerning the setting of fees and the forms of compensation a fee must NOT be excessive |
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Entering into Lawyer-Client Relationship - Duty to Charge a Reasonable Fee - Factors (8)
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factors considered in determining the reasonableness of a fee:
(1) time and labor required (2) whether the particular employment will preclude other employment (availability retainer) (3) fee customarily charged (4) amount involved and the results obtained (5) time limitations (6) nature and length of the professional relationship (7) experience, reputation and ability of the lawyer, and (8) whether the fee is fixed or contingent |
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Entering into Lawyer-Client Relationship - Duty to Charge a Reasonable Fee
Compensation from 3rd Parties |
a lawyer may NOT accept compensation for representing a client from someone other than the client UNLESS:
(1) the client consents after consultation (2) there is no interference with the lawyer's independent professional judgment or with the attorney-client relationship, AND (3) information relating to representation of the client is protected as required by the rule relating to confidentiality of information |
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Entering into Lawyer-Client Relationship - Duty to Charge a Reasonable Fee
Award of Attorneys' Fees |
a trial court has great discretion to award attorneys' fees as justice requires, provided there is competent evidence on the record to support the findings and a reasonable person could agree with the court's order
FACTORS: (1) scope and history of litigation (2) the duration of the litigation (3) the merits of the respective positions (4) whether the litigation is brought primarily to harass, (5) the existence and course of prior or pending litigation |
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Entering into Lawyer-Client Relationship
Contingent Fees - Generally |
a contingent fee is a fee that is dependent on the successful resolution of a client's case and payable from the judgment proceeds
contingent fees are prohibited in domestic relations matter and in representation of defendants in criminal cases |
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Entering into Lawyer-Client Relationship
Contingent Fees - Guidelines |
FL bar sets out detailed guidelines (15-40%) for contingent fees, a fee in excess of the guidelines is presumed to be excessive, but the presumption can be rebutted
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Entering into Lawyer-Client Relationship
Contingent Fees - Requirements |
every contingent fee arrangement must be in writing and must state:
(1) the method by which the fee is to be determined, including the percentage or percentages that accrue to the lawyer in the event of settlement, trial or appeal (2) litigation and other expenses to be deducted from the recovery, AND (3) whether such expenses are to be deducted before or after the contingent fee is calculated prior to signing, the client must receive the statement of client's rights each participating attorney assumes joint responsibility for the client's representation |
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Entering into Lawyer-Client Relationship - Referral Fees
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a referral fee, whereby the primary attorney pays a portion of his fee to a 2nd attorney who suggested him to the client, is unethical
a lawyer may, however, ethically divide fees with an outside attorney IF the client consents and the division is in proportion to the services performed by each lawyer or, by written agreement with the client...each lawyer assumes joint responsibility for the representation |
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Communications about Legal Services - Generally
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a lawyer MUST NOT make a false or misleading communication of his services, including:
(1) omitting a necessary fact that would make the statement as a whoel misleading, (2) statements likely to create an unjustified expectation about the results the lawyer can achieve (advertisements of results obtained on behalf of a client and record in obtaining favorable verdicts, or client testimonials of high damage awards without reference to specific circumstances) (3) implications that the lawyer can achieve results by unlawful means (4) comparisons with other lawyers that aren't factually substantiated |
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Communications about Legal Services - Solicitation
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a lawyer may NOT solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship when a significant motive for the lawyer's doing so is the lawyer'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 lawyer MAY solicit an accident victim in writing if at least 30 days have passed since the accident |
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Communications about Legal Services - Communication with Person Represented by Counsel
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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, such as a corporation, the rule prohibits communications by the opposing party's lawyer, concerning the subject of representation, with persons whose act or omission in connection with that matter may be imputed to the organziation for puposes of civil or criminal libaility or whose statement may constitute an admission on the part of the organization |
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Communications about Legal Services - Communications with Unrepresented Persons
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when dealing with an unrepresented person, the lawyer may not state or imply that he is disinterested
if the unrepresented person misunderstands the lawyer's role in the matter, the lawyer must take reasonable steps to correct the misunderstanding |
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Duties and Bounds of a Lawyer's Representation - Competency
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once having entered into an attorney-client relationship, a lawyer 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 the representation |
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Duties and Bounds of a Lawyer's Representation -
Duty of Confidentiality - Generally |
a lawyer may NOT reveal information relating to the representation of a client, UNLESS
(1) the 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 which is likely to result in death or substantial bodily harm (not prior to criminal acts) |
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Duties and Bounds of a Lawyer's Representation
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
duty of confidentiality protects from any disclosure all information related to the representation however and whenever derived |
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Duties and Bounds of a Lawyer's Representation - Duty to Protect Client's Property
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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 or savings and loan association account maintained in teh 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 |
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Duties and Bounds of a Lawyer's Representation
Trust Account Requirements |
funds entrusted to an attorney for a specific purpose are held in trust and must be applied only for that purpose
such funds aren't subject to counterclaim or setoff for attorney's fees, and a refusal to account for and deliver over the property upon demand is a conversion |
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Duties and Bounds of a Lawyer's Representation - Prevention of Unlawful Activity
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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 |
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Duties and Bounds of a Lawyer's Representation - Financial Assistance to Clients
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a laywer 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 pay pay court costs and expenses on behalf of the client |
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Duties and Bounds of a Lawyer's Representation - Proprietary Interest
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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 |
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Duties and Bounds of a Lawyer's Representation
Legal and Non-Legal Services |
a lawyer who provides nonlegal services to a recipient that aren't 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 |
