Professional Responsibility: Business vs. Profession

• Course materials include the Florida Bar website and the ABA Professional Responsibility guidelines, with exam questions drawn from the ABA laws.
• Class attendance is important, and any absences should be communicated promptly.
• Materials discussed the week before the midterm will not be included in the midterm exam.

Business vs. Profession

• Law is considered a profession with responsibilities beyond those of a typical business.
• Lawyers have special roles, responsibilities, and privileges regulated by the Florida Supreme Court.
• Lawyers have a power position and unequal relationship with clients.
• Key questions include when the attorney/client relationship begins and ends.

Rule 1.1: Competence

• Lawyers must provide competent representation, requiring necessary legal knowledge, skill, thoroughness, and preparation.
• Special training or prior experience is not always necessary, as lawyers are always learning.
• An attorney-client relationship triggers duties like diligence, communication, and confidentiality.

Comments on Competence

• Relevant factors in determining competence include the complexity and specialization of the matter, the lawyer's experience, and the feasibility of consulting with a competent lawyer in the field.
• Expertise in a particular field may be required in some circumstances.
• A newly admitted lawyer can be as competent as an experienced practitioner.
• Fundamental legal skills include analyzing precedent, evaluating evidence, and legal drafting.
• Lawyers can provide adequate representation in a novel field through study or association with a competent lawyer.
• In emergencies, advice should be limited to what is reasonably necessary.
• Competent handling includes analysis of factual and legal elements, adequate preparation, and attention determined by what is at stake.
• Agreements can limit the scope of representation, according to Rule 1.2(c).

Retaining or Contracting with Other Lawyers

• Informed consent from the client is necessary before retaining or contracting with lawyers outside the firm.
• The lawyer must reasonably believe the other lawyers' services will contribute to competent and ethical representation.
• Factors include the nonfirm lawyers' education, experience, and reputation.
• Lawyers from multiple firms should consult with each other and the client about their roles.

Maintaining Competence

• Lawyers should stay updated on changes in the law and practice, including technology.

Question 2-1: Profit-Sharing Plan

• An attorney manages a firm and hires a nonlawyer Chief Technology Strategist, paying them a fixed salary and including them in the year-end profit-sharing.
• The arrangement is permissible under Rule 5.4(a)(3), which allows lawyers to share fees with nonlawyers as part of a firm profit-sharing plan.

Question 2-2: Attorney-Client Relationship

• A trademark attorney reviews a separation agreement for a close friend, offering specific legal advice but disclaiming expertise in employment law.
• Providing specific legal advice on a complex document with high stakes creates an attorney-client relationship.
• An inadequate disclaimer does not sufficiently put the "client" on notice.
• Rule 5.4 prohibits non-lawyers from being involved in the practice of law.

Modules 2–3: Practice, Competence, and Principles

• Topics include legal software, working with non-lawyers, unauthorized practice of law, and creating/ending lawyer-client relationships.
• Also covers competence, discipline, and malpractice liability.

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

Rule 1.1: Competence

Rule 1.16: Declining or Terminating Representation

• A lawyer MUST assess whether they can accept or continue representation.
• A lawyer SHALL decline representation if it violates professional conduct rules, impairs their ability, or involves client crime or fraud.
• A lawyer MAY withdraw if it doesn't harm the client, involves client misconduct, or presents financial burden/other good cause.
• The SHALL in paragraph (a) and MAY in paragraph (b) are important distinctions.

Rule 6.2: Accepting Appointments

• Examines the conduct of an attorney (certified in FL) who intervenes in a state where they're not certified (CAL)
• Interviewing witnesses via phone/email, traveling to interview witnesses, appearing in mediation/arbitration, and appearing in court.

Question 2-4: Multijurisdictional Practice

• An attorney licensed in State A represents a client in State B for a matter related to their State A practice.
• Representation is allowed under Rule 5.5(c)(4) because it is related to the attorney's practice in State A.

Question 2-5: Pro Hac Vice

• An attorney in State A handles litigation in State B, files a pro hac vice petition, and works in State B while the petition is pending.
• The attorney's actions are permitted because 5.5(c)(2) provides a safe harbor before pro hac vice approval.

Question 2-6: Systematic and Continuous Presence

• An attorney admitted in State A relocates to the firm's office in State C, providing advice and negotiating transactions.
• The attorney is subject to discipline because they have a systematic and continuous presence in State C without proper licensing.

Question 2-7: Establishing Attorney-Client Relationship

• An attorney declines to represent a company in an SEC investigation but answers legal questions.
• An attorney-client relationship is established because the company reasonably relies on the attorney's answers.

Question 2-8: Declining Court Appointment

• An attorney asks to avoid a court appointment due to beliefs conflicting with competent representation.
• Declining the appointment is permissible because the attorney cannot provide competent representation due to personal beliefs.

Question 2-12: Lawyer Discipline

• An attorney delays work on a patent case due to non-payment, impacting the client's time-sensitive matter.
• The attorney is subject to discipline due to the delay in a time-sensitive patent case.

Question 2-13: Emergency Situations

• A family law attorney attempts to help a client with a criminal matter in an emergency.
• The attorney's conduct is proper as it was an emergency situation where referral was impractical.

Question 2-14: Responsibilities of Supervisory Lawyer

• An attorney assigns an inexperienced associate to a trial without adequate preparation.
• The attorney is subject to discipline for failing to ensure the associate's competence.
• Rule 1.1 (and thus Rule 5.1) is that it can be violated even in the absence of a showing of a harm to the client.

Question 2-15: Malpractice Liability

• An attorney declines representation but offers a referral, and the acquaintance delays seeking advice.
• The attorney is not subject to civil liability because the attorney-client relationship was not established, creating no duty.

Question 2-16: Limiting Malpractice Liability

• An attorney asks a client to agree to limit potential malpractice liability without independent representation.
• The attorney's conduct is improper because 1.8(h)(1) requires the client to be independently represented.

Question 2-17: Settling Malpractice Claim

• An attorney settles a malpractice claim with a client, advising them in writing to seek independent representation.
• The attorney’s conduct is proper as 1.8(h)(2) permits settlement if the client is advised in writing to seek independent counsel.

Question 2-18: Scope of Representation

• An attorney limits representation to e-discovery matters with the client's informed consent.
• The attorney’s conduct is proper because 1.2(c) permits limited representation with informed consent.

Question 2-19: Ineffective Assistance of Counsel

• An attorney fails to investigate mitigating evidence, leading to a death sentence.
• The attorney's conduct was unreasonable and prejudiced the client, constituting ineffective assistance of counsel.

Question 2-20: Allocation of Decision-Making

• An attorney refuses to settle a case against the client's direction, believing the appeal is meritless.
• The attorney is subject to discipline because the client has the right to decide whether to settle.

Question 2-21: Malpractice & Decision-Making

• An attorney follows the client's instruction not to use evidence, leading to an unfavorable court decision.
• The attorney is not likely to be liable for malpractice because the attorney followed the client's instructions after explaining alternatives.

Question 2-22: Client Communications

• An attorney advises a client on the consequences of not filing quarterly taxes.
• The attorney is not subject to discipline, because advice about the legal consequences is authorized by 1.2(d)

Question 2-23:

• An attorney advises a client that they only have to issue refunds to customers within 14 days. The attorney also then recommends issuing refunds to all customers that requested a refund, noting that it was in the client’s long-term business interest to have fully satisfied customers.
• It’s the job of the attorney to refer to relevant business considerations to comply with Ruile 2.1

Question 2-24: Rule 1.14 and Diminished Capacity

• An attorney is asked by a partner in the law firm to work with a long-time client of the firm.
• The attorney followed the guidance of Rule 1.14 and did not comply with the duty of confidentiality that would normally govern a lawyer-client relationship.

Module 4: Business of Law and Marketing Legal Services

• Topics include solicitation and advertising.
• RULE 7.3: SOLICITATION OF CLIENTS

Question 3-1:

• It is permitted for attorneys to solicit former clients who the attorney had represented in the past and that the client might need legal representation again.
• This is in compliance with See Rule 7.3(b)(2).

Question 3-2:

• 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:

• The website implied that the attorney had appeared in court when in fact the attorney had not.
• The website is misleading and thus prohibited under Rule 7.1.

Question 3-4:

• The content of the advertisement is not false or misleading.
• The attorney may build a client base and post a flyer on a community bulletin board providing factual information, in compliance.

Question 3-5:

• 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.
• The departure of partners makes the firm name misleading.

Module 5: Attorney Fees and Billing

• Rule 1.5: Fees
• Expenses: costs that you incur in the practice of law
• Fees: a lawyer’s hourly charge
• Contingency fees:
• MUST be in writing
• You can't use a contingency fee in divorce cases, child custody cases, etc.
• You cannot have a contingency fee in a criminal case
• Must be reasonable and in writing

How do we measure “a reasonable attorney fee”?

• Look at what the appropriate hourly fee is:
• Look at how complicated the case is, where the litigation is being brought, time/effort
• Reasonable number of hours expended → LODESTAR
• Enhancement, but they are going to be RARE and UNUSUAL

Question 3-7:

• provided that the work of the contract lawyers is billed as lawyer time and not as an expense.
• If it is billed as an expense, then the firm would not be able to charge more than the actual cost to the firm plus a reasonable allocation of overhead directly associated with the contract lawyers.

Question 3-8:

• A lawyer may contract with a client for a reasonable contingent fee in a civil case.
• This is an exception to the prohibition on acquiring a proprietary interest in the cause of action or subject matter of litigation that a lawyer is conducting. See Rule 1.8(i)(2).
• If took an ownership interest in the company, does this raise more complicated issues? Yes

Question 3-9:

• NO CONTINGENCY FEES IN DOMESTIC DISPUTES! (Rule 1.5)
• 1. 5(d) prohibits lawyers from charging or collecting “any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof.”

Question 3-10:

• The attorney complied with all of the requirements under Rule 1.8(a) for entering into a business transaction with a client.
• Software Start-up, Inc. sought to retain a high-profile transactional attorney to represent it in connection with its initial public offering, offering the attorney an equity interest in the company in exchange for legal assistance. Following requirements under Rule 1.8(a).

Question 3-11:

• Under Rule 1.8(e)
• The attorney is permitted to provide this type of modest gift to her indigent client through Pro Bono.
• PRO BONO → takes out the self-interest

Question 3-12:

• Rule 1.15 requires that client funds remain in a client trust account until fees are earned or expenses are incurred.

Question 3-13:

• The $2,000 in dispute must be left in the client trust account until the dispute is resolved.
• In compliance with See Rule 1.15(e). After a client sent the following message: “Please don’t perform any work on my property dispute matter. My neighbor has agreed to settle.”

Question 3-14:

• The judge felt the amount was far too low given the time and effort expended by the plaintiffs’ attorneys over many years, during which they went uncompensated and were forced to cover substantial expenses.
• The lodestar may be increased due to superior performance and results provided that the judge identifies extraordinary circumstances to justify the enhancement.

Question 3-15:

• The attorney represented a class of plaintiffs in a civil rights case against the State, which the plaintiffs offered to provide substantially all of the relief the plaintiffs sought so long as the attorney agreed to waive court-awarded attorney’s fees under 42 U.S.C. § 1988. The attorney agreed to waive her fee award, and the parties settled the case.
• Under the authority of Evans v. Jeff D., 475 U.S. 717 (1986), the court will uphold the settlement because Section 1988 does not prohibit settlement conditioned on waiver of attorney’s fees.

Section 4: Attorney/Client Privilege; the Lawyers Duty of Confidentiality

• Readings:
• Professional Responsibility, Jefferson et al., pp. 229-244.
• Professional Responsibility, Jefferson et al., pp.245-302.

Rules:

Rule 1.8(i)(2): Current Clients: Specific Rules

Rule 1.6: Confidentiality of Informed

• RULE: A lawyer shall not reveal information relating to the representation of a client UNLESS
• (1) the client gives informed consent,
• (2) the disclosure is impliedly authorized in order to carry out the representation (e.g., info filed in memo) OR
• (3) SEVEN EXCEPTIONS… the disclosure is permitted by paragraph(b), which states that:
• (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

Criteria for Attorney-Client Privilege (p. 352)

• 86 with respect to:
• (1) a communication
• (2) made between privileged persons
• (3) in confidence
• (4) for the purpose of obtaining or providing legal assistance for the client.

Question 4-4:

• The client was primarily interested in the attorney’s legal advice
• The client’s dominant intent to seek legal advice was in the context of whether the deal as “good and workable”.

Question 4-5:

• The attorney may not refuse to testify to the information the attorney gathered while observing the attorney’s client on the ski slopes, which was not a communication made in confidence between the lawyer and the client, or agents of either who facilitate communications between them.
• The attorney had seen the client, who was claiming extensive injuries after a car accident, swooshing down the slopes after the car accident had occurred.

Question 4-6:

• The board of directors of a client corporation voted to do a public offering of stock, asking the client to hire an outside law firm to prepare the necessary documentation for the public offering.
• If the information was subpoenaed, the negative information obtained by the attorney would not be protected by attorney-client privilege, because the information was for the purpose of making it public, not an with an expectation of confidentiality.

ON PRIVILEGED INFORMATION→ Privilege Review, “You Be the Judge” (p. 284)

Following emails are privileged because a communication for the purpose of obtaining or providing legal assistance for the client has occurred.

RULE 502: Attorney-Client Privilege and Work Product; Limitations on Waiver

502(d) ORDER:

• Controlling Effect of a Court Order, a federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court. Thus, in the event the disclosure is also not a waiver in any other federal or state proceeding.

Question 4-7:

• no, because the client waived any privilege by disclosing the report to the DOJ, after requesting this report from the client, The DOJ (Department of Justice)

Question 4-8:

• Yes, because the court order protects against a waiver in any subsequent litigation.

Question 4-9:

“(a) consults a lawyer for the purpose, later accomplished, of obtaining assistance to engage in a crime or fraud or aiding a third person to do so, OR (b) regardless of the client’s purpose at the time of consultation, uses the lawyer’s advice or other services to engage in or assist a crime or fraud.”