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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Florida Legal Ethics

1.2   Rule 1.2 Scope of Representation

1.2:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary:

1.2:101      Model Rule Comparison

The Florida Rule differs from the Model Rule in two significant ways. In paragraph (a), the Florida rule clarifies that the lawyer is bound by the client's decision whether to make a settlement offer, as well as the client's decision whether to accept such an offer. paragraphs (d)&(e) of the Florida Rule establish a stricter standard than the Model Rule, requiring that the lawyer may not counsel a client to engage in conduct that the lawyer "knows or reasonably should know" is criminal or fraudulent, and must consult with the client if the lawyer "knows or reasonably should know" that the client expects assistance not permitted by the Rules of Professional Conduct.

1.2:102      Model Code Comparison

Paragraph (a) has no counterpart in the Disciplinary Rules, though EC 7-7 and 7-8 fairly imply that the client's decisions should be accepted by the lawyer. paragraph (b) has no counterpart in the Model Code. DR 7-101(B)(1) provides that a lawyer may exercise professional judgment to waive or fail to assert a right or position of the client, thus providing a counterpart of sorts to paragraph (c). DR 7-102(A)(6) & (7) provides essentially the same restrictions as those found in paragraph (d). paragraph (e) is more strongly worded than DR 2-110(C)(1)(c), which provides that a lawyer may withdraw from representation only if the client insists that the lawyer engage in illegal or prohibited conduct.

1.2:200   Creating the Client-Lawyer Relationship

Primary Florida References: FL Rule 4-1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA 31:101, ALI-LGL 14, 18, Wolfram 9.2

1.2:210      Formation of Client-Lawyer Relationship

When a lawyer assists a pro se litigant with the preparation of legal pleadings, an attorney-client relationship is formed, even though the attorney does not appear as attorney of record for the client. FL Eth. Op. 79-7 (Reconsideration) (Feb. 15, 2000).

1.2:220      Lawyer's Duties to Prospective Client

[The discussion of this topic has not yet been written.]

1.2:230      When Representation Must Be Declined [see 1.16:200]

[The discussion of this topic has not yet been written.]

1.2:240      Client-Lawyer Agreements

[The discussion of this topic has not yet been written.]

1.2:250      Lawyer's Duties to Client in General

[The discussion of this topic has not yet been written.]

1.2:260      Client's Duties to Lawyer

[The discussion of this topic has not yet been written.]

1.2:270      Termination of Lawyer's Authority

A lawyer must withdraw when fired by the client. Florida Bar v. Vining, 721 So. 2d 1164 (Fla. 1998). In Vining, the lawyer violated Rule 4-1.2(a) when he continued representation of a client, including filing an appellate brief and participating in oral argument, even after being discharged by the client.

1.2:300   Authority to Make Decisions or Act for Client

Primary Florida References: FL Rule 4-1.2(a)
Background References: ABA Model Rule 1.2(a), Other Jurisdictions
Commentary: ABA/BNA 31.301, ALI-LGL 22-23, Wolfram 4.4, 4.6

A lawyer violated Rule 4-1.2(a) and received a public reprimand when she sent a letter to HRS requesting that her client be given custody of all four of her children even though the lawyer knew that the client wanted custody of only two of the children. Florida Bar v. Glant, 645 So. 2d 962 (Fla. 1994). The lawyer relied on Rule 4-1.2(d) because she believed that the ex-husband was molesting the children, but there was no evidence of such molestation other than the lawyer's opinion.

A lawyer violated Rule 4-1.2(a) when he obtained an interview of his client with the television show "A Current Affair" without the client's informed consent. Florida Bar v. Niles, 644 So. 2d 504 (Fla. 1994).

1.2:310      Allocating Authority to Decide Between Client and Lawyer

A lawyer must abide by a client's decision regarding whether to accept an offer of settlement. Failure to communicate to a client a settlement offer that is not vague or unrealistic is a violation of Rule 4-1.2(a). In Florida Bar v. Hayden, 583 So. 2d 1016 (Fla. 1991), a lawyer was suspended for a violation of Rule 1.2(a). The lawyer represented the wife in a dissolution of marriage. The wife was awarded $2500 in lump sum alimony, but settled with the husband for $300. The lawyer ignored the wife's instruction not to file a motion for contempt against the husband for failure to pay the entire lump sum alimony award. The lawyer then used the contempt motion as leverage to obtain payment of his fees. The court strongly condemned the lawyer's actions:

This is not an instance of a momentary lapse or negligent action. Respondent pursued contempt proceedings in derogation of his client's wishes and after being advised that a settlement had been reached. He did so to use the legal system in an improper attempt to effectuate the recovery of his own fee. The intentional nature of respondent's conduct, coupled with the selfish motivation which prompted the filing of a frivolous proceeding, combined to make this misconduct far more egregious than a negligent act.

Id. at 1017. Accordingly, the lawyer was suspended for six months. Id. at 1018.

1.2:320      Authority Reserved to Client

[The discussion of this topic has not yet been written.]

1.2:330      Authority Reserved to Lawyer

[The discussion of this topic has not yet been written.]

1.2:340      Lawyer's Authority to Act for Client

[The discussion of this topic has not yet been written.]

1.2:350      Lawyer's Knowledge Attributed to Client

[The discussion of this topic has not yet been written.]

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

[The discussion of this topic has not yet been written.]

1.2:370      Appearance Before a Tribunal

[The discussion of this topic has not yet been written.]

1.2:380      Authority of Government Lawyer

[The discussion of this topic has not yet been written.]

1.2:400   Lawyer's Moral Autonomy

Primary Florida References: FL Rule 4-1.2(b)
Background References: ABA Model Rule 1.2(b), Other Jurisdictions
Commentary: Wolfram 10.4

No cases have been found interpreting Rule 4-1.2(b).

1.2:500   Limiting the Scope of Representation

Primary Florida References: FL Rule 4-1.2(c)
Background References: ABA Model Rule 1.2(c), Other Jurisdictions
Commentary: ABA/BNA 31:301, ALI-LGL 20, Wolfram 5.6.7

Limiting the scope of representation may be especially important in limiting the scope of malpractice liability. [see 1.1:320]

1.2:510      Waiver of Client or Lawyer Duties (Limited Representation)

Where a lawyer assists a pro se litigant in the preparation of legal papers, but does not appear as attorney of record, the lawyer must explain to the client the limited scope of representation and still owes the client all duties attendant to the attorney-client relationship. FL Eth. Op. 79-7 (Reconsideration) (Feb. 15, 2000).

1.2:600   Prohibited Counseling and Assistance

Primary Florida References: FL Rule 4-1.2(d)
Background References: ABA Model Rule 1.2(d), Other Jurisdictions
Commentary: ABA/BNA 31:301, ALI-LGL 105, Wolfram 13.3

Lawyers violated Rule 4-1.2 because they should have recognized that their client had a conflict of interest in acting as the personal representative of an estate, and should have either requested an attorney ad litem or moved to withdraw on the grounds of irreconcilable differences. DiDiego v. Crockett, Franklin & Chasen, P.A., 687 So. 2d 943 (Fla. 3d DCA 1997). It is a violation of Rule 4-1.2 to represent a client who has not retained the lawyer. Florida Bar v. Spann, 682 So. 2d 1070 (Fla. 1996). Lawyers must be extremely cautious when acting on behalf of clients with whom they have not met personally. In Florida Bar v. Jasperson, 625 So. 2d 459 (Fla. 1993), the court ruled that a lawyer violated Rule 4-1.2(a) when he filed a bankruptcy petition for both a husband and wife after having consulted only the wife. The lawyer had never met the husband. The court ruled that the lawyer had a duty to consult with the husband to allow him to make an informed decision regarding the bankruptcy proceeding. There was no evidence, other than the wife's assertion, that the wife was acting as the husband's agent.

1.2:610      Counseling Illegal Conduct

In Florida Bar v. Boland, 702 So. 2d 229 (Fla. 1998), a lawyer violated Rule 4-1.2(d) by counseling his client to submit an affidavit the lawyer knew to be false, to violate a custody order by taking her children "on a long vacation," and to lie to law enforcement officers and also by filing a petition for dissolution of marriage, knowing that the client failed to satisfy the six-month residency requirement for dissolution of marriage in Florida.

1.2:620      Assisting Client Fraud

In Florida Bar v. Rood, 622 So. 2d 974 (Fla. 1993), the lawyer violated Rule 4-1.2(d) by assisting a client in filing a false annual return of a guardian. It is a violation of FL Rule 4-1.2(d) for a lawyer to assist a client in a settlement arrangement in which an insurance company pays the settlement directly in to a checking account in the client's name. Such an arrangement circumvents trust accounting rules and the lawyer's duties to third parties who may have an interest in the settlement proceeds. FL Eth. Op. 00-2 (July 15, 2000).

In Florida Bar v. Brown, 2001 WL 776667 (Fla., July 12, 2001), a lawyer was found to have violated FL Rule 4-1.2(d) by assisting a client in collecting campaign contributions in excess of $500.

1.2:630      Counseling About Indeterminate or Uncertain Law

No cases or ethics opinions have been found regarding this provision of the rules.

1.2:700   Warning Client of Limitations on Representation

Primary Florida References: FL Rule 4-1.2(e)
Background References: ABA Model Rule 1.2(e), Other Jurisdictions
Commentary: ABA/BNA 31:307, ALI-LGL 105

[See 1.2:500]

1.2:800   Identifying to Whom a Lawyer Owes Duties

Primary Florida References: FL Rule 4-1.2
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA 31:101, ALI-LGL 105, Wolfram 7.2

1.2:810      Prospective Clients [see 1.2:220]

1.2:820      Persons Paying for Representation of Another [see 1.7:400]

1.2:830      Representing an Entity [see 1.13:200]

1.2:840      Representing a Fiduciary [see also 1.13:520]

1.2:850      Class Action Clients

[The discussion of this topic has not yet been written.]