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ETHICS FOR THE CIVIL TRIAL LAWYER

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  1. ETHICS FOR THE CIVIL TRIAL LAWYER FLABOTA Edward K. Cheffy July 18, 2014

  2. EXAMPLES OF ETHICS ISSUES WITH RECENT ACTIVITY • May you include past results on your website? • May you withdraw from representing an existing client in order to avoid a conflict with a new client? • In a fee dispute, may you ask your client to sign a release? • May you require arbitration of legal malpractice claims? • What should you do if you inadvertently send a privileged document to your adversary? • Does your firm need to have a written plan for compliance with trust account rules? • Are there any ethical concerns if you trade in your old copier for a new one? • Could you be disciplined for misrepresenting your personal financial information in an out-of-state transaction? • May a lawyer review a prospective juror’s Facebook pages? • Who has final authority to decide whether to call a particular witness at trial – the lawyer or the client?

  3. SOURCES OF ETHICS RULES • I. RULES REGULATING THE FLORIDA BAR • A. ABA’s Model Rules of Professional Conduct, as modified and updated byThe Florida Supreme Court • B. Major revisions in 2013 • “ADVISORY OPINIONS” & “GUIDELINES” FROM THE FLORIDA BAR • The Florida Bar’s Ethics Counsel, Professional Ethics Committee and Board of Governors have authority to issue advisory ethics opinions • The Florida Bar issued advertising guidelines for “past results” and “networking sites” in 2013 • JUDICIAL DECISIONS • A. Disciplinary cases from the Supreme Court • B. Other cases involving disqualification for conflicts, fees, and other ethics issues

  4. OATH OF ADMISSION “To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications.” In re Oath of Admission to The Florida Bar, 73 So.3d 149 (Fla. 2011)

  5. IMPORTANCE OF KNOWING THE RULES “As the number of lawyers increases to an unprecedented level, the responsibility of ensuring that all lawyers conduct themselves within the ethical bounds required by the Rules Regulating the Florida Bar continues to be a top priority for this Court.” The Florida Bar v. Adorno, 60 So.3d 1016 (Fla. 2011)

  6. IMPORTANCE OF KNOWING THE RULES “. . . members of The Florida Bar are responsible for knowing the Rules Regulating the Florida Bar. . . . it is well established that ignorance of the law, especially by lawyers in disciplinary proceedings, is no excuse.” The Florida Bar v. Adorno, 60 So.3d 1016 (Fla. 2011)

  7. IMPORTANCE OF KNOWING THE RULES CaseRecommendedActual The Florida Bar v. Winters , Admonishment 91 days suspension 104 So.3d 299 (2012)   The Florida Bar v. Adorno , Public reprimand 3 year suspension 60 So.3d 1016 (Fla. 2011) The Florida Bar v. Knowles , 90 days suspension One year suspension 99 So.3d 918 (2012) The Florida Bar v. St. Louis , 60 days suspension Disbarment 967 So.2d 108 (Fla. 2007) The Florida Bar v. Rousso, 12 mos. Suspension Disbarment 117 So.3d 756 (Fla. 2013)  

  8. OUTLINE AND REMARKS 1. Advertising and Solicitation 2. Conflicts of Interest 3. Attorneys’ Fees and Related Matters 4. Attorney-Client Relationship 5. Filing Suit and Pleadings 6. Communications with Adversaries, Parties, and Witnesses 7. Discovery and Evidence 8. Trial 9. Post-Trial 10. Rules Having General Applicability

  9. CANON 27: ADVERTISING, DIRECT OR INDIRECT (1943) “It is unprofessional to solicit professional employment. . . . Indirect advertisements . . . offend the traditions and lower the tone of our profession and are reprehensible; but the customary use of simple professional cards is not improper.”

  10. LAWYER ADVERTISING “In the end, it will promote distrust of lawyers and disrespect for our own system of justice.” Bates v. Bar of Arizona, 433 U.S. 350, 394 (1977) (Powell, J., dissenting)

  11. WEBSITES Prior Rule: ● Websites “are considered to be information provided upon request” ● Not subject to most provisions of 4-7.2 Amendment Effective July 1, 2010: ● Websites are subject to all requirements of 4-7.2 ● Stayed until 90 days after Supreme Court clarifies rule

  12. NEW ADVERTISING RULES(effective May 1, 2013) • More Restrictive • • advertising rules apply to all print and electronic communications, • including websites, social networking, video sharing media • Less Restrictive • • references to “past results” are permitted if “objectively verifiable” • (4-7.13(b)(2)) • • descriptions of “skills” and “reputation” are permitted if “objectively • verifiable” (4-7.13(b)(3)) • • “testimonials” are permitted subject to many conditions & limitations • (4-7.13(b)(8))

  13. THE FLORIDA BARBOARD OF GOVERNORS“GUIDELINES FOR ADVERTISING PAST RESULTS”(Revised January 17, 2014) TYPES OF MEDIA • UNACCEPTABLE: Billboards, radio & TV • ACCEPTABLE: Direct mail, print advertisements, websites FULL & COMPLETE DISCLOSURE • Ads must include all “material information,” so they won’t be “misleading” (e.g., was verdict reduced or reversed?) DISCLAIMERS • $ CASES: “Most cases result in a lower recovery.” • OTHERS: “Results may not be typical.”

  14. Advertising or Solicitation? Rule 4-7.11(a) ADVERTISING “All forms of communication seeking legal employment” “Directed to a specific recipient” SOLICITATION

  15. SOLICITATION “In-person” • generally prohibited “Written” • permitted subject to reasonable regulations

  16. SOLICITATION “This Court will strictly enforce the rules that prohibit . . . improper solicitations and impose severe sanctions on those who commit violations of them.” The Florida Bar v. Barrett 897 So.2d 1269 (Fla. 2005) (attorney disbarred).

  17. CHAT ROOMSOpinion A-00-1 (Revised) While lawyers may not participate in chat rooms to solicit business, they may respond to specific requests for information.

  18. THE FLORIDA BARSTANDING COMMITTEE ON ADVERTISING“GUIDELINES FOR VIDEO SHARING SITES”(Revised April 16, 2013) • Videos appearing on YouTube to promote a lawyer’s practice “are subject to the lawyer advertising rules.” • Invitations to view such a video in hopes of obtaining legal business can be a “direct solicitation.”

  19. THE FLORIDA BARSTANDING COMMITTEE ON ADVERTISING“GUIDELINES FOR NETWORKING SITES”(Revised April 6, 2013) • A lawyer’s pages on Facebook, MySpace, Twitter and LinkedIn “used to promote the lawyer” are “subject to the lawyer advertising rules.” • Invitations sent from a social media site in hopes of obtaining business can constitute “solicitations.” • If a third party posts information on a lawyer’s page that doesn’t comply with the rules, the lawyer must remove it.

  20. POTENTIAL CONSEQUENCES OF IMPROPER SOLICITATION • Forfeiture of fee • Discipline by The Florida Bar • Criminal charges

  21. Rule 4-7.2

  22. BONUSES TO NONLAWYERSRule 4-5.4(a), as amended in 2006 “Bonus payments shall not be based on cases or clients brought to the lawyer or law firm by the actions of the nonlawyer.”

  23. OUTLINE AND REMARKS 1. Advertising and Solicitation 2. Conflicts of Interest 3. Attorneys’ Fees and Related Matters 4. Attorney-Client Relationship 5. Filing Suit and Pleadings 6. Communications with Adversaries, Parties, and Witnesses 7. Discovery and Evidence 8. Trial 9. Post-Trial 10. Rules Having General Applicability

  24. CONFLICTS OF INTEREST • Existing Clients • Former Clients • Prospective Clients • Newly-Affiliated Lawyers and • Non-Lawyer Employees

  25. CONFLICTS - CURRENT CLIENTSRule 4-1.7, as amended in 2006 A lawyer shall not represent a client: “. . . if the representation will be directly adverse to another client” or If there is a “substantial risk that the representation … will be materially limited by … responsibilities to”: • another client; • a former client; • a third person; or •“a personal interest of the lawyer.”

  26. IMPUTATION OF CONFLICTSRule 4.10(a) A lawyer’s conflicts of interest are generally imputed to all lawyers who are “associated” with lawyer’s firm.

  27. CONFLICT WAIVERS CURRENT CLIENTSRule 4-1.7, as amended in 2006 Each affected client must give “informed consent, confirmed in writing or clearly stated on the record at a hearing.”

  28. REPRESENTING MULTIPLE PARTIESIN ONE LAWSUITRules 4-1.7(c) and 4-1.8(g) • Must explain “advantages and risks involved” • No confidentiality among joint clients • Can’t “participate in making an aggregate settlement” without written “informed consent” • Risks of subsequent conflict

  29. FORMER CLIENTSRule 4-1.9, as amended in 2006 A lawyer may represent a party against a former client so long as the matters are not: “substantially related.” However, in any event, a lawyer cannot “use information relating to the representation to the disadvantage of the former client” unless “generally known” or subject to an exception in Rule 4-1.6.

  30. FORMER CLIENTSCONFLICTS OF INTEREST May you withdraw from representing a client for the purpose of triggering the “former client” analysis?

  31. HOT POTATO DOCTRINE A lawyer may not “drop one client like a hot potato in order to treat it as though it were a former client for the purpose of resolving a conflict of interest dispute.” Value Part, Inc. v. Clements, 2006 WL 22525 41 (N.D. Ill. Aug 2, 2006), cited with approval by Young v. Achenbauch, 136 So.3d 575 (Fla. 2014)

  32. PROSPECTIVE CLIENTS If a lawyer receives an unsolicited telephone call from a prospective client, will the lawyer be disqualified from representing the opposing party? Garner v. Somberg, 672 So.2d 852 (Fla. 3d DCA 1996)

  33. PROSPECTIVE CLIENTS Rulings • consultation “with the view to employing” attorney invokes privilege • relationship gave rise to an “irrefutable presumption that confidences were disclosed” • trial court erred in denying motion to disqualify Garner v. Somberg, 672 So.2d 852 (Fla. 3d DCA 1996)

  34. PROSPECTIVE CLIENTS If a lawyer receives an unsolicited email with confidential information from a prospective client, will the lawyer be disqualified from representing the opposing party?

  35. ADVISORY OPINION 07-3(2009) • Person sending unsolicited information “has no reasonable expectation” that a lawyer will treat information as confidential. • The lawyer will not have a conflict of interest in representing the person’s adversary. • The lawyer may disclose the information or even use it against the person who sent it. • Disclosure statement on website recommended.

  36. CONFLICTS – ATTORNEY SWITCHING FIRMS • Chinese Wall? • Edward J. DeBartolo Corp. v. Petrin, • 516 So.2d 6 (Fla. 5th DCA 1987)

  37. CONFLICTS – SWITCHING FIRMSComment to Rule 4-1.10, as amended in 2006 Paralegal or Secretary Rule 4-1.10(a) (which sets forth the general imputation rule) “does not prohibit representation by others in the law firm where the person prohibited from involvement in a matter is a nonlawyer, such as a paralegal or legal secretary.” Screening “Such persons, however, ordinarily must be screened from any personal participation in the matter.”

  38. POTENTIAL CONSEQUENCES OF CONFLICTS • Disqualification • Grievance • Malpractice suit • Forfeiture of fees • Setting aside judgment

  39. OUTLINE AND REMARKS 1. Advertising and Solicitation 2. Conflicts of Interest 3. Attorneys’ Fees and Related Matters 4. Attorney-Client Relationship 5. Filing Suit and Pleadings 6. Communications with Adversaries, Parties, and Witnesses 7. Discovery and Evidence 8. Trial 9. Post-Trial 10. Rules Having General Applicability

  40. ATTORNEYS FEESRule 4-1.5(a) Lawyers may not charge fees that are “clearly excessive” or obtained through improper advertising or solicitation.

  41. FEE AGREEMENTS – COSTS Instead of itemizing costs for copying, postage, couriers, etc., may you charge 4% of fees to cover all costs? Staff Opinion 30989, dated January 4, 2012, affirmed by PEC June 22, 2012

  42. COMMUNICATION OF FEESRule 4-1.5(E) • When a lawyer “has not regularly represented the client,” the basis of the fee “shall be communicated” within a “reasonable time after commencing the representation.” • “preferably in writing” • nonrefundable fees “shall be confirmed • in writing” (as of 2/1/2010) • contingent fees must be in writing

  43. REFERRAL FEES IN PI CASES • Joint Liability • Full Disclosure • Written consent • 25% Maximum • No Referral Fee if Conflict Exists

  44. Advancing ExpensesRule 4-1.8

  45. ADVANCES FOR MEDICAL EXPENSESComment, Rule 4-1.8(e), effective February 1, 2010 • Diagnostic examination for litigation? • Medical treatment?

  46. GIFTS used clothing and $200 check for “basic necessities” The Florida Bar v. Taylor, 648 So.2d 1190 (Fla. 1994) (no discipline – “an act of humanitarianism”) v. $250 to buy “clothes, groceries, and other personal goods” The Florida Bar v. Roberto, 59 So.3d 1101 (Fla. 2011) (attorney disciplined - the rule “could not be more clear”)

  47. LIMITING LIABILITY Clauses limiting liability in professional services contracts are invalid and unenforceable. Witt v. La Gorce Country Club, Inc., 35 So.3d 1033 (Fla. 3d DCA 2010)

  48. LIMITING LIABILITY In a fee dispute with a client, may you propose a mutual release? The Florida Bar v. Head, 84 So.3d 292 (Fla. 2012), citing Rule 4-1.8(h)