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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

1.4   Rule 1.4 Communication

1.4:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-1.4
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary:

1.4:101      Model Rule Comparison

The Florida Rule is identical to MR 1.4.

1.4:102      Model Code Comparison

DR 6-101(A)(3) prohibits a lawyer from neglecting a legal matter entrusted to him.

1.4:200   Duty to Communicate with Client

Primary Florida References: FL Rule 4-1.4
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA 31.501, ALI-LGL 20, Wolfram 4.5, 4.6

The Florida Supreme Court takes seriously the duty to inform and consult with clients:

[A]n attorney's consideration of his or her client's interests and communication with the client at reasonable times in response to the client's inquiries are a vital and necessary part of the attorney-client relationship. We expect and require this of members of The Florida Bar and will not hesitate to imposes discipline upon Florida attorneys who do not fulfill these obligations to their clients.

Florida Bar v. Roberts, 770 So. 2d 1207, 1209 (Fla. 2000). Indeed, the court has not hesitated to impose discipline for violations of FL Rule 4-1.4. See, e.g., Florida Bar v. Brakefield, 679 So. 2d 766 (Fla. 1996); Florida Bar v. Morrison, 669 So. 2d 1040 (Fla. 1996); Florida Bar v. Winderman, 614 So. 2d 484 (Fla. 1993).

An employment agreement between an associate and a law firm, providing that for two years after leaving the firm the associate could not seek directly or indirectly any of the firm's clients, was found to violate FL Rule 4-1.4. FL Eth. Op. 93-4 (Feb. 17, 1995). "The duty to provide clients with information relevant to their case would ostensibly include the fact that the attorney is leaving the firm." Id. To the extent that the agreement could be interpreted as prohibiting the departing lawyer from notifying the client of the departure, the agreement violated FL Rule 4-1.4. See also Florida Bar v. Roberts, 770 So. 2d 1207 (Fla. 2000) (violation of FL Rule 4-1.4 to fail to inform client that case will be referred to attorney not affiliated with initial attorney).

Similarly, FL Rule 4-1.4 may be implicated when a paralegal or legal assistant leaves a law firm to go to work for a law firm representing a client of the former firm. "If the employee had a close relationship with the client, the former firm must advise the client of the employee's departure and new employment." FL Eth. Op. 86-5 (Aug. 1, 1986).

Providing a client with false information about the status of the client's case may also constitute a violation of FL Rule 4-1.4. Florida Bar v. Fredericks, 731 So. 2d 1249 (Fla. 1999) (lawyer who told client suit had been filed and settled when in fact suit had never been filed).

A lawyer who was appointed to defend a capital murder case violated FL Rule 4-1.4 when he failed to advise his client of the client's right to be present or have the judge present at the jury's viewing of the alleged crime scene. Florida Bar v. Lange, 711 So. 2d 518 (Fla. 1998). The lawyer was motivated solely by his financial interests because his fee as appointed public defender was limited to $3500.

In a joint representation where a lawyer has conflicting duties under FL Rule 4-1.6 to one client and FL Rule 4-1.4 to another client, the duties under FL Rule 4-1.6 control and the lawyer must withdraw from representation of both clients. FL Eth. Op. 95-4 (May 30, 1997).

1.4:300   Duty to Consult with Client

Primary Florida References: FL Rule 4-1.4
Background References: ABA Model Rule 1.4(b), Other Jurisdictions
Commentary: ABA/BNA 31.501, ALI-LGL 20, Wolfram 4.5

A lawyer who filed a bankruptcy petition on behalf of a client with whom he had not met was found to have violated Rule 4-1.4(b) in Florida Bar v. Jasperson, 625 So. 2d 459 (Fla. 1993). The lawyer had been retained by a wife to handle a bankruptcy proceeding on behalf of her and her husband. The lawyer never met with the husband. Instead, the lawyer allowed the wife to take the joint bankruptcy petition to her husband for signature. The wife forged her husband's signature on the petition. The lawyer filed a certification with the bankruptcy court falsely indicating that he had advised both the husband and the wife of their rights regarding the bankruptcy petition and available relief. The court stated that the lawyer had a duty to communicate with the husband to allow the husband to make an informed decision about the bankruptcy proceeding. There was no evidence, other than the wife's word, that the wife was acting as the husband's agent. If the lawyer had met personally with the husband he would have discovered whether the husband wanted to be joined in the bankruptcy petition.

A lawyer who failed to advise his clients that their son would be absolutely precluded from obtaining a green card based on his conviction for possession of cocaine was found to have violated Rule 4-1.4(b) in Florida Bar v. Nunes, 679 So. 2d 744 (Fla. 1996); see also Florida Bar v. Elster, 770 So. 2d 1184 (Fla. 2000) (failure to inform client that he was not eligible for a waiver of deportation).

Failure to advise clients that their claims have been dismissed violates Rule 4-1.4(b). Florida Bar v. Lecznar, 690 So. 2d 1284 (Fla. 1997).

Failure to keep a client informed regarding the amount of fees being incurred violates Rule 4-1.4(b). Florida Bar v. Vining, 761 So. 2d 1044 (Fla. 2000).

1.4:400   Duty to Inform the Client of Settlement Offers

Primary Florida References: FL Rule 4-1.4
Background References: ABA Model Rule 1.4, Other Jurisdictions
Commentary: ABA/BNA 31.501, ALI-LGL 20, Wolfram 4.5

FL Rule 4-1.4(a) provides that a lawyer must abide by a client's decision whether to accept an offer of settlement of a matter. Therefore, a lawyer must, in order to comply with the rule, inform the client of any settlement offers. In Florida Bar v. Glick, 693 So. 2d 550 (Fla. 1997), a lawyer violated Rule 4-1.4 when he failed to communicate a settlement offer to his clients.