Business vs. Profession: Rule 1.1 Competence

Business vs. Profession

• The practice of law is considered a profession with responsibilities beyond those of a regular business.
• Lawyers have special roles, responsibilities, and privileges, regulated by the FL Supreme Court to protect citizens and lawyers in their relationship with the public.
• The attorney-client relationship involves a power dynamic, creating an unequal relationship.
• Lawyers offer specialized services to clients.
• Key questions to consider: When does the attorney/client relationship begin and end?

Rule 1.1: Competence

• A lawyer must provide competent representation, requiring the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
• Determining what is "reasonably necessary" involves looking at the comment section of the rule.
• Special training or prior experience is not always required to handle unfamiliar legal problems, because lawyers are always learning.
• An attorney-client relationship may be created when legal advice is sought, triggering duties like diligence, communication, managing fees, maintaining confidentiality, and avoiding conflicts of interest.

Comments on Rule 1.1

• Factors in determining requisite knowledge and skill: complexity and specialization of the matter, general experience, training and experience in the specific field, preparation and study, and feasibility of consulting with a lawyer of established competence.
• Expertise may be required in some circumstances.
• A newly admitted lawyer can be as competent as an experienced one, as fundamental legal skills are required across all legal problems.
• Determining the type of legal problem is a crucial skill, and lawyers can become competent in a novel field through study or by associating with a lawyer competent in that field.
• In emergencies, lawyers can provide advice in areas where they lack skill, but assistance should be limited to what is reasonably necessary.
• Lawyers may accept representation if competence can be achieved through reasonable preparation, even when appointed for an unrepresented person.
• Competent handling includes inquiry, analysis, and use of standard methods, along with adequate preparation, with the required attention depending on what is at stake.
• Agreements between lawyer and client can limit the scope of representation.
• Lawyers should obtain informed consent from the client before retaining or contracting with other lawyers outside the firm and must reasonably believe that the other lawyers’ services will contribute to the competent and ethical representation of the client.
• Lawyers from multiple firms should consult with each other and the client regarding the scope of their representations and allocation of responsibility.
• Lawyers should stay updated on changes in law and practice, including technology, through continuing study and education.

Question 2-1: Profit-Sharing Plan

• The question concerns whether an attorney is subject to discipline for including a nonlawyer Chief Technology Strategist in the firm's year-end profit-sharing plan.
• The attorney is not subject to discipline because Rule 5.4(a)(3) creates an exception for profit-sharing compensation plans.

Question 2: Reviewing a Separation Agreement

• The question involves an attorney who is close friends with a family reviewing a separation agreement for them, despite specializing in trademark law.
• Providing specific legal advice, even with a disclaimer, can create an attorney-client relationship and trigger duties under Model Rule 1.1.
• Close family relationships can make disclaimers ineffective if the individuals are likely to rely on the advice.
• Marking up the contract constitutes specific legal work and thus legal advice.
• The disclaimer was not adequate to put the friend on notice.

Rule 5.4: Nonlawyer Involvement

• Rule 5.4 prohibits nonlawyers from being involved in practicing law to protect from not being subject to the rules of professional responsibility
• The question concerns issues of non-lawyers being involved in the practice of law as non-lawyers are not subject to the rules of professional responsibility

Rule 5.5: Unauthorized Practice of Law; Multijurisdictional Practice of Law

• This rule outlines when and how lawyers can practice law in jurisdictions where they are not admitted to the bar.

Rule 1.16: Declining or Terminating Representation

• Rule 1.16(a) outlines conditions under which a lawyer MUST decline or withdraw from representation:
  • If the representation violates the Rules of Professional Conduct or other law.
  • If the lawyer's physical or mental condition impairs their ability to represent the client.
  • If the lawyer is discharged.
  • If the client seeks to use the lawyer's services to commit a crime or fraud.
• Rule 1.16(b) lists conditions under which a lawyer MAY withdraw from representation:
  • If withdrawal can occur without adverse effect on the client.
  • If the client persists in criminal or fraudulent actions.
  • If the client has used the lawyer's services to perpetrate a crime or fraud.
  • If the client insists on repugnant actions or fundamental disagreements.
  • If the client fails to fulfill obligations to the lawyer.
  • If the representation becomes a financial burden or is made unreasonably difficult.
  • If other good cause for withdrawal exists.
• The use of "SHALL" in (a) and "MAY" in (b) are important distinctions.

Accepting Appointments (Rule 6.2)

• This rule addresses the circumstances under which lawyers are required to accept court appointments.

Hypothetical: Attorney in Non-Bar Certified State

• An attorney (certified in FL) engaging in a non-bar-certified state (CAL) intervention raises questions about unauthorized practice.
• Activities include: interviewing witnesses via phone/email, traveling to interview, appearing in mediation/arbitration, and appearing in court.
• Determine which activities violate FL professional responsibility rules.
• Attorney needs a systematic/consistent presence for a violation to occur

Question 2-4: Attorney Licensed in State A Representing Client in State B

• The scenario involves an attorney licensed in State A representing a State B client in the purchase of a State B company, traveling to State B for negotiations.
• The attorney is not subject to discipline as the representation was related to the attorney's practice in State A.

Safe harbor provision in Rule 5.5(c)(4)

• This provision temporarily allows an attorney licensed in one state to consult with a company in another state on related issues

Question 2-5: Pro Hac Vice Application

• The question concerns an attorney admitted in State A handling a litigation matter in State B for a law firm client, with a pending pro hac vice application.
• The attorney is not subject to discipline because the attorney reasonably expected to be admitted pro hac vice by the State B court.
• Rule 5.5(c)(2) provides a safe harbor for work conducted before pro hac vice approval if the attorney reasonably expected to be admitted

Question 2-6: Attorney Relocating to State C Office

• The question concerns an attorney admitted in State A relocating to the firm’s office in State C, practicing full-time, and giving advice to clients.
• The attorney IS subject to discipline because the attorney has a systematic and continuous presence in State C, where she performs legal work and none of the exceptions apply.

Question 2-7: Off-the-Cuff Answers

• The question concerns an attorney who declined to represent a company in an SEC investigation but later provided off-the-cuff answers to legal questions about the investigation.
• The attorney DOES have a lawyer-client relationship with the company for purposes of the SEC investigation because the attorney answered the company’s questions when the attorney knew or reasonably should have known that the company would reasonably rely on the attorney’s answers.

Question 2-8: Court Appointment and Personal Beliefs

• The question involves an attorney being asked to represent a teenage girl seeking an abortion without parental consent, but the attorney opposes abortion.
• The attorney is not subject to discipline as they did not believe that he could provide competent representation to a client.

Question 2-12: Failure to Work Due to Non-Payment

• The question concerns an attorney who stopped working on a patent case for six months due to non-payment, despite time being of the essence.
• The attorney IS subject to discipline because time was of the essence and the attorney did not work on the client’s matter for six months.

Question 2-13: Emergency Situation and Lack of Expertise

• The question involves a family law specialist going to a police station to help a client in distress, despite lacking criminal law expertise.
• The attorney's conduct WAS proper because neither referral to another lawyer nor consultation with another lawyer was practical under the circumstances.

Question 2-14: Responsibilities of a Supervisory Lawyer

• The question concerns a partner assigning a trial to an inexperienced associate and failing to provide adequate support.
• The attorney IS subject to discipline because the attorney did not make “reasonable efforts” to put in place measures that give reasonable assurance that all lawyers in the firm conformed to the duty of competence
• Rule 1.1 (and thus Rule 5.1) can be violated even in the absence of a showing of a harm to the client. While causation and harm are necessary elements in a legal malpractice claim, they need not be established in order for a lawyer to be subject to discipline.

Question 2-15: Duty Owed to Acquaintance

• The question concerns a transactional attorney advising an acquaintance on an estate matter, despite lacking expertise in that area.
• The attorney IS NOT subject to civil liability because the attorney did not violate any duty owed to the acquaintance because the facts did not give rise to the attorney-client relationship

Question 2-16: Limiting Malpractice Liability

• The question involves an attorney asking a client to sign an agreement limiting potential malpractice liability.
• The attorney's conduct IS NOT proper because the facts do not say that the client was independently represented, which is a requirement of Rule 1.8(h)(1) because THE CLIENT DOESN’T KNOW ANYTHING → THE CLIENT IS NOT IN AN EQUAL BARGAINING POSITION (the lawyer stands to gain more than the client stands to win/the client is in a more vulnerable position)

Question 2-17: Settling Malpractice Claim

• The question concerns an attorney settling a malpractice claim with a client, advising the client in writing to seek independent representation.
• The attorney's conduct WAS proper because Rule 1.8(h)(2) permits settlement of “a claim or potential claim” so long as the client “is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel[.] because Rule 1.8(h)(2) permits settlement of “a claim or potential claim” so long as the client “is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel[.]”

Question 2-18: Limiting Scope of Representation

• The question concerns an attorney specializing in e-discovery limiting the scope of representation to e-discovery matters.
• The attorney's conduct WAS proper because a lawyer may limit the scope of the representation so long as the limitation is reasonable under the circumstances and the client gives informed consent because it can apply to any case.

Question 2-19: Ineffective Assistance of Counsel

• The question concerns an attorney who failed to investigate potential mitigating evidence in a murder case, leading to a death sentence for the client.
• The client's verdict SHOULD be overturned because he received ineffective assistance of counsel because the attorney’s conduct was unreasonable and prejudiced the client.
• TWO PART TEST to show ineffective assistance of counsel: Prejudice AND unreasonableness.

Question 2-20: Allocation of Decision-Making

• The question involves an attorney refusing to accept a settlement offer that the client directed him to accept.
• The attorney IS subject to discipline because the attorney did not comply with the client’s direction to accept the settlement offer because the only client decision in a civil matter that Rule 1.2 identifies expressly as an “objective” is the decision of “whether to settle.”

Question 2-21: Malpractice & Decision-Making

• The question concerns an attorney who followed the client's instructions not to use evidence of adultery in a divorce suit, resulting in the client not getting primary custody.
• The client is NOT likely to succeed as the attorney explained the alternatives to the client and then followed the client’s instructions.

Rule 1.2(d):

• Scope of Representation and Allocation of Authority Between Client and Lawyer

Rule 1.4: Communications

• A bill can constitute a reasonable method of regular communication.

Rule 2.1: Advisor

• Addresses the lawyer's role as an advisor and allows them to offer moral, economic, social, and political advice

Question 2-22: Client Communications

• The question concerns an attorney advising a small business owner on the consequences of not filing estimated quarterly tax payments.
• The attorney is NOT subject to discipline because the attorney provided the attorney’s honest opinion about the consequences that were likely to result if the client violated the law.

Question 2-23: Company that sells widgets

• The question concerns an attorney who advised a company to issue refunds to all customers, despite only being legally obligated to refund some.
• The attorney’s conduct WAS proper because and the attorney was permitted to refer to relevant business considerations because Rule 2.1 permits a lawyer, when giving advice to a client, to refer not only to law but to other considerations such as moral, economic, social and political factors

Question 2-24: Diminished Capacity

• The question concerns an attorney representing a client with diminished capacity who believes his landlord is shooting gamma rays into his apartment.
• The attorney’s conduct WAS proper because the attorney was entitled to take the described action to protect the client with diminished capacity from foreseeable harm. becauseall of the proposed actions are proper, and in some cases required, by Rule of Professional Conduct 1.14.

Rule 7.3: Solicitation of Clients

• Addresses the rules and restrictions around lawyers soliciting clients. Focuses on protecting vulnerable individuals and preventing overreach.

Question 3-1: Text message to former clients

• The question concerns a criminal defense attorney using police report data to contact former clients via text message
• The attorney is permitted to solicit professional employment from persons with whom the attorney has a prior business or professional relationship. See Rule 7.3(b)(2).

Question 3-2: Face to face contact soliciting pregnant mothers for no legal fee

• The question concerns an attorney who, through live person-to-person contact, solicited plaintiffs for a potential lawsuit challenging a requirement that pregnant mothers be sterilized in order to continue receiving government financial assistance and offered to represent attorneys for no legal fee
• The attorney’s pecuniary gain was not a significant motive for the solicitation. Because the attorney offered to represent the mothers for no legal fee, pecuniary gain was not a significant motive for his solicitation. As a result, it was not prohibited under Rule 7.3(a).

Question 3-3: Marketing firm to prepare a flashy website

• The question concerns an attorney who hired a marketing firm to prepare a website featuring a photo of the attorney addressing a jury even though they never have
• The website implied that the attorney had appeared in court when in fact the attorney had not, therfore the attorney IS subject to discipline

Question 3-4: Flyer

• The question concerns an attorney seeking to build a client base in a local library by posting a flyer listing his name, contact information, and law school
• The content of the advertisement is not false or misleading, therfore the attoney is NOT subject to discipline

Question 3-5: Naming a partnership

• The question concerns an attorney, Alpha who maintained the name of four law partners when there are none with that same name
• The firm’s name is misleading, therfore the attorney IS subject to discipline “A firm may be designated by the names of all or some of its current members, by the names of deceased members where there has been a succession in the firm’s identity or by a trade name if it is not false or misleading.” Rule 7.1, cmt..

Rule 1.5: Fees

• Covers various aspects of attorney fees, including types like hourly, contingency, and division of fees. It emphasizes the importance of reasonableness and transparency.
• Expenses: Actual costs incurred during representation.
• Fees: Lawyer's compensation for services.
• Contingency Fees:
  • Must be in writing and reasonable.
  • Prohibited in divorce, child custody, and criminal cases.
• Written Agreement: Generally not required, but recommended.
• Division of Fees (Lawyers in different firms):
  • Proportional to services performed.
  • Must be reasonable and agreed to by the client
• Costs vs. Fees: Differentiate between expenses and lawyer compensation.

Measuring Reasonable Attorney Fee

• Appropriate hourly fee: complexity, location, time/effort.
• Reasonable hours expended: "LODESTAR".
• Contingency basis: Fee depends on winning; risk can justify higher fees.
• Purdue case: Enhancements are rare and unusual.

Question 3-7: Hourly billing controversy

• The question concerns a law firm used outside contract lawyers whom it paid $100 per hour, they billed the client $150 per hour , and the firm did not memorialize its fee arrangement with the client in writing.
• The firm WAS proper because the rate billed to the client and the overall amount charged were reasonable because “reasonable” is the buzz word. “Sub contracting” and “memorialized” are also key terms.