Professional Responsibility
Summer 2002

Introduction

• Professionalism

– Learned art

– Common Calling to Promote Justice

– Public Service

• A Member of a Profession -- Self Regulation

• Philosophy of Lawyering

• Regulation and Discipline

– Sources of Regulation

– Discipline Procedure in Florida

– Duty to Report

Attorney/Client Relationship

• Who is the Client

– Entity Representation 1.13

– Acting as Intermediary 2.2

– Real Estate Closings

– Probate Practice

• When does Relationship begin

– Engagement/Termination letter

– Confidences - When a reasonable person believes he is seeking advice from an attorney

– Negligence – From first encounter

• Duty of Competency

– Rule 1.1

– Ineffective Assistance of Counsel (Criminal Cases)

– Opinion Letters

• Fees

– Reasonable Rule 1.5 Factors

– Kinds of Fees

• How receive (retainer, advance, flat fee)

• How much (contingency, hourly, value billing, flat rate)

– Fee Splitting

• With attorney outside firm

• Fee is proportional to work done—Notice to client

• Attorneys assume joint responsibility-written agreement

– Contingency Fees

• Restrictions on use

– Criminal Cases

– Divorce Cases

• Written Agreement

– Fee to be determined (% and when)

– Expenses

– When Expenses will be deducted

• Written Settlement

– Expenses

• Expert witnesses

• Advancing litigation expenses but not other expenses

– Trust Accounts 1.15

– Dealing with money

• Money Laundering

• Forfeiture

• Reporting requirements

• Division of Labor– Rule 12.a

– Objectives– Client

• Offer/settlement

• Plea

• Testify in Criminal case

• Jury trial

– Means– Attorney

• Technical and legal tactical issues

• Defer to client

– Expenses

– Effect on Third Party

• Entity Representation

– Who is the Client?

– Relationship to Officers, Directors, Employees

• Advisement

• Represent

• Confidentiality

– Attorney/Client Privilege

– Advising the Entity

Confidentiality

• Sources of Confidentiality

– Rule 1.6

– Attorney/Client Privilege

• Definition

• Waiver

• Crime Fraud Exception

• Who is covered in Entity Representation (Upjohn)

– Work Product Doctrine

• Exceptions to the Rule

• Handling Physical Evidence

– Sources of the Limitations

– Attorney/Client Privilege

– Self Incrimination privilege

• Perjury

– Knowledge

– Proactive/Reactive

• Assisting in a Fraud or a Crime --Rule 12(d)

– Prohibiting from assisting or encouraging

– Withdrawal Required/Permissive

• Noisy withdrawal

• Ongoing fraud

Conflicts of Interest

• Conflicts because of Attorney’s Various Roles

– Officer of the Court--Incapacitated client

– Advocate/Witness Rule 3.7

• Conflicts with Attorney’s Financial Interests

– Media Rights before rep. is over Rule 1.8(d)

– Business Transactions 1.8(a)

– Gifts to Lawyer 1.8 c

• Multiple Clients in Same Case

– Current clients that are directly adverse 1.7(a)

– Current Clients Not Directly adverse

• Criminal Defendants in one case 1.7(b)

– Materially limit representation

– Two part test

» Lawyer reasonably believes the representation will not be adversely affected

» Client consents after consultation

• Simultaneous Rep of Plaintiffs in tort case

• Insurance Company/Insured

• Family Practice

• Multiple Current Clients in Unrelated (unconnected) Cases

– Who is the client?

– Are all the clients current or former?

– Are their interests directly adverse? (1.7(a))

– Will the representation of one materially limit the representation of the other (1.7(b))

– Can a reasonable attorney believe he can represent both with out adversely effecting either

– Consent after consultation

• Conflict with Former Client

– Is the client a former client?

– Is this a matter?

– Same or Substantially the same?

– Materially adverse?

– Former client consents after consultation.

• Imputation of Disqualification

– To other members in current firm 1.10(a)

– To self after departure 1.9(b)

– To other members in firm after departure 1.10(b)

– To other members in new firm 1.9(b)

Limits on Zealous Representation

• Use of the Press Rule 3.6

– What is covered by 3.6(a)

• Lawyer participating in a matter

• Extrajudicial statement

• Be disseminated

• Knows or reasonably should know

• Materially prejudice the adjudicative proceeding

– Exceptions

• Safe harbor 3.6 (b)

• Reply rule 3.6 c

• Questionable Strategies

• Adverse Legal Authority

• Report Jury Misconduct

• Frivolous Actions

– Rules 3.1 & 3.2

• Purpose to harass

• No good faith basis

– Civ R. Pro. 11

• Contacting represented parties

– Attorney representing a client

– Contact a represented person

– About subject matter of representation

– Without consent

– Unless authorized by law

• Interviewing unrepresented parties

• Discovery Abuses

• Negotiations

– To lie or not to lie, that is the question

• General Prohibitions against false or misleading statements Rule 7.1

– Material misrepresentations or material omissions

– Unjustifiable expectations

– Compare lawyers’ service

• Advertising – Rule 7.2

• Direct Mailing – Rule 7.3 (c) & (b)

• In-person Solicitation – Rule 7.3 (a) & (b)

• Restrictions within the Firm Structure

– Responsibilities within the firm

• Subordinate Lawyers 5.2

• Partner or Supervising Lawyers

– Reasonable measures

– Liability for subordinates actions

• Supervising non-lawyers

• Reporting misconduct

– Structure of the Firm

• Multidisciplinary Practice

• Auxiliary Businesses

Special Duties of Prosecutors

• Are They Different?

• Brady Issues

• Plea Bargain

• Improper Argument

• Ex parte Communications

Roberta Kemp Flowers
Stetson University College of Law
1401 61st Street South
St. Petersburg, FL 33707
(727) 562-7863
flowers@law.stetson.edu

Professional Responsibility Summer 2002

Introduction

• Professionalism

– Learned art

– Common Calling to Promote Justice

– Public Service

• A Member of a Profession -- Self Regulation

• Philosophy of Lawyering

• Regulation and Discipline

– Sources of Regulation

– Discipline Procedure in Florida

– Duty to Report

Attorney/Client Relationship

• Who is the Client

– Entity Representation 1.13

– Acting as Intermediary 2.2

– Real Estate Closings

– Probate Practice

• When does Relationship begin

– Engagement/Termination letter

– Confidences - When a reasonable person believes he is seeking advice from an attorney

– Negligence – From first encounter

• Duty of Competency

– Rule 1.1

– Ineffective Assistance of Counsel (Criminal Cases)

– Opinion Letters

• Fees

– Reasonable Rule 1.5 Factors

– Kinds of Fees

• How receive (retainer, advance, flat fee)

• How much (contingency, hourly, value billing, flat rate)

– Fee Splitting

• With attorney outside firm

• Fee is proportional to work done—Notice to client

• Attorneys assume joint responsibility-written agreement

– Contingency Fees

• Restrictions on use

– Criminal Cases

– Divorce Cases

• Written Agreement

– Fee to be determined (% and when)

– Expenses

– When Expenses will be deducted

• Written Settlement

– Expenses

• Expert witnesses

• Advancing litigation expenses but not other expenses

– Trust Accounts 1.15

– Dealing with money

• Money Laundering

• Forfeiture

• Reporting requirements

• Division of Labor– Rule 12.a

– Objectives– Client

• Offer/settlement

• Plea

• Testify in Criminal case

• Jury trial

– Means– Attorney

• Technical and legal tactical issues

• Defer to client

– Expenses

– Effect on Third Party

• Entity Representation

– Who is the Client?

– Relationship to Officers, Directors, Employees

• Advisement

• Represent

• Confidentiality

– Attorney/Client Privilege

– Advising the Entity

• Sources of Confidentiality

– Rule 1.6

– Attorney/Client Privilege

• Definition

• Waiver

• Crime Fraud Exception

• Who is covered in Entity Representation (Upjohn)

– Work Product Doctrine

• Exceptions to the Rule

Professional Responsibility
Summer 2002