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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: Commentary: ABA/BNA § 61:704, ALI-LGL § 110, Wolfram § 11.2

3.1:101      Model Rule Comparison

FL Rule 4-3.1 is identical to MR 3.1.

3.1:102      Model Code Comparison

DR 7-102 is the counterpart to FL Rule 4-3.1. DR 7-102(A)(1) is more limited in that it prohibits the lawyer from taking generally frivolous action where the lawyer "knows or when it is obvious" that such action has no proper purpose. FL Rule 4-3.1 does not require the lawyer's subjective knowledge that the action is improper. DR 7-102 does not contain an exception for criminal actions as does FL Rule 4-3.1.

3.1:200   Non-Meritorious Assertions in Litigation

Primary Florida References: FL Rule 4-3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL § 110, Wolfram § 11.2

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

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

Primary Florida References: FL Rule 4-3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:151, ALI-LGL § 110, Wolfram § 11.2

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

3.1:400   Civil Liability for Abusive Litigation Practice [see 1.1:500]

Primary Florida References: FL Rule 4-3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 61:101, ALI-LGL §§ 56, 110, Wolfram § 11.2

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

3.1:500   Complying with Law and Tribunal Rulings

Primary Florida References: FL Rule 4-3.1
Background References: ABA Model Rule 3.1, Other Jurisdictions
Commentary: ABA/BNA § 16:1201, ALI-LGL § 105, Wolfram §§ 12.1.3, 13.3.7

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

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary:

3.2:101      Model Rule Comparison

FL Rule 4-3.2 is identical to MR 3.2.

3.2:102      Model Code Comparison

FL Rule 4-3.2 has no counterpart in the Model Code, in the sense of an affirmative duty to expedite litigation. DR 7-102(A)(1) prohibits a lawyer from delaying a trial when the lawyer knows or when it is obvious that such action would serve merely to harass or maliciously injure another.

3.2:200   Dilatory Tactics

Primary Florida References: FL Rule 4-3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:202, ALI-LGL § 106, Wolfram § 11.2.5

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

3.2:300   Judicial Sanctions for Dilatory Tactics

Primary Florida References: FL Rule 4-3.2
Background References: ABA Model Rule 3.2, Other Jurisdictions
Commentary: ABA/BNA § 61:202, ALI-LGL § 106, Wolfram § 11.2.5

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

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-3.3
Background References: ABA Model Rule 3.3, Other Jurisdictions
Commentary:

3.3:101      Model Rule Comparison

FL Rule 4-3.3(a)(4) is more stringent than MR 3.3(a)(4). The Florida Rule provides that a lawyer may not permit any witness, including a criminal defendant, to offer testimony or other evidence that the lawyer knows is false. The Florida Rule also provides that a lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. The Florida Rule Comment provides that, if a lawyer knows the client intends to commit perjury, the lawyer's first duty is to persuade the client to testify truthfully. Failing that, the lawyer must threaten to disclose the client's intent to the judge. If this threat does not dissuade the client, the lawyer must disclose the fact that the client intends to lie to the tribunal and, pursuant to FL Rule 4-1.6, disclose information sufficient to prevent the commission of the crime of perjury. The Florida Rule comment references FL Rules 4-1.2(d), 4-3.4(b), 4-8.4(a), 4-8.4(b), 4-8.4(c), 4-8.4(d), 4-1.6(b), 4-3.3(a)(2) & (4), and 4-1.16 to support the view that a lawyer may not knowingly permit false testimony to be offered. The Florida Rule comment also references Kneale v. Williams, 30 So. 2d 284 (Fla. 1947); Dodd v. Florida Bar, 118 So. 2d 17 (Fla. 1960); Florida Bar v. Agar, 394 So. 2d 405 (Fla. 1981); and Florida Bar v. Simons, 391 So. 2d 684 (Fla. 1980), as prohibiting lawyers from presenting false testimony or evidence. The Florida Rule comment omits paragraphs 9 and 10 of the Comment to MR 3.3, substituting a paragraph distinguishing the offering of perjured testimony to the tribunal from a client's providing false information to a law enforcement officer at the time of arrest. The comment states that this past act of lying by the client does not trigger the disclosure obligation because a false statement to an arresting officer is unsworn and occurs prior to the institution of a court proceeding. If the client testifies, the lawyer must attempt to have the client answer truthfully or invoke any applicable privilege. False statements by the client during the court proceeding will trigger the disclosure obligation of the rule. The Florida Rule comment also omits paragraph 13 of the Comment to MR 3.3.

3.3:102      Model Code Comparison

DR 7-102(A)(5) provides that a lawyer may not knowingly make a false statement of law or fact, and DR 7-102(A)(3) prohibits a lawyer from knowingly failing to disclose that which he is required by law to reveal. DR 7-106(B)(1) requires a lawyer to disclose legal authority in the controlling jurisdiction directly adverse to the position of his client which is not disclosed by opposing counsel. DR 7-102(B) requires the lawyer to call the tribunal's attention to frauds perpetrated upon the tribunal. Unlike MR 3.3, the Model Code has at least a partial counterpart to the requirement of FL Rule 4-3.3(a)(4) that the lawyer not permit any witness to offer testimony that the lawyer knows is false. DR 7-102(A)(7) forbids the lawyer to counsel or assist his client in conduct that the lawyer knows is illegal or fraudulent. The Model Code contains no counterpart to the ex parte provision of FL Rule 4-3.3(d).

3.3:200   False Statements to a Tribunal

Primary Florida References: FL Rule 4-3.3(a)(1) & (2)
Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5

At the most basic level, FL Rule 4-3.3 has consistently been interpreted to prohibit a lawyer from making a false statement of material fact or law to a tribunal. In Dodd v. Florida Bar, 118 So. 2d 17, 19 (Fla. 1960), the Florida Supreme Court stated the principle as follows: "In our system the courts are almost wholly dependent on members of the bar to marshal and present the true facts of each cause in such manner as to enable the judge or jury to cook the adversary contentions in a crucible and draw off the material, decisive facts to which the law may be applied. When an attorney adds or allows false testimony to be cast into the crucible from which the truth is to be refined and taken to be weighed on the scales of justice, he makes impure the product and makes it impossible for the scales to balance."

In Florida Bar v. Rood, 622 So. 2d 974 (Fla. 1993), an attorney was suspended for one year for knowingly assisting in the fraudulent conveyance of real property by making false statements of material fact to the court. See also Florida Bar v. Spann, 682 So. 2d 1070 (Fla. 1996)(disbarment found appropriate where attorney authorized forgery of client's name on a settlement agreement, then notarized the forged signature). In Florida Bar v. Winderman, 614 So. 2d 484 (Fla. 1993), an attorney who falsely represented to the court that his clients had requested that he withdraw from representation was found to have violated FL Rule 4-3.3 by knowingly making a false statement of material fact to the court. See also Florida Bar v. Broida, 574 So. 2d 83 (Fla. 1991)(attorney attempting to obtain a change of venue misrepresented facts to the court that both parties had agreed to the transfer and that there were pending motions and hearings before the initial court).

In addition, an attorney is responsible for pleadings and other documents prepared for litigation. While an attorney is not usually expected to have personal knowledge of matters asserted in litigation documents, an assertion purporting to be based on the lawyer's own knowledge "may properly be made only when the lawyer knows the assertion is true or believes it to be true on the basis of a reasonably diligent inquiry." Comment, FL Rule 4-3.3. See Florida Bar v. Schramm, 668 So. 2d 585 (Fla. 1996)(attorney found in violation of FL Rule 4-3.3 where he had falsely represented that he had a basis for a recusal motion, and had lied to the court in another case as to the basis for a continuance motion); Florida Bar v. Jasperson, 625 So. 2d 459 (Fla. 1993)(attorney found to have made fraudulent statements to court by way of filing certification to bankruptcy court indicating that he had advised both husband and wife of their rights when he had never spoken to husband); Hutchins v. Hutchins, 501 So. 2d 722 (Fla. 5th DCA 1987)(attorney misrepresenting facts in an appellate brief warrants sanction of striking offending language and assessment of attorney fees to be paid by attorney, not client).

Under certain circumstances a failure to make a disclosure may be the equivalent of an affirmative misrepresentation. In Hays v. Johnson, 566 So. 2d 260 (Fla. 5th DCA 1990), an attorney who filed a habeas petition on behalf of his client in custody hearing had failed to disclose that the temporary custody order had been entered as a result of petitioner's incarceration for contempt of court for violating an order allowing visiting rights to the child's father. The court held that the attorney had clearly violated his obligation of candor to the tribunal under FL Rule 4-3.3(a) & (d) by misleading the court through the omission of material facts. See also Addison v. Brown, 413 So. 2d 1240 (Fla. 5th DCA 1982)(minor factual omission when there is time for response becomes major omission in a last minute petition that will result in postponement of trial); United States v. Hersh, 15 F. Supp. 2d 1310 (S.D. Fla. 1998) (attorney referred to Florida Bar for disciplinary action for failure to tell court about pending disciplinary proceedings).

In FL Eth. Op. 79-7 (Reconsideration) (Feb. 15, 2000), the Committee concluded that to avoid a violation of the duty of candor to the court, pleadings prepared by an attorney for a pro se litigant and filed with the court must indicate "prepared with the assistance of counsel."

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

Primary Florida References: FL Rule 4-3.3(a)(2)
Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
Commentary: ABA/BNA § 61:303, ALI-LGL § 120

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

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal [see also 1.6:350]

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

3.3:400   Disclosing Adverse Legal Authority

Primary Florida References: FL Rule 4-3.3(a)(3)
Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
Commentary: ABA/BNA § 4:301, ALI-LGL § 111, Wolfram § 12.8

The duty of candor under FL Rule 4-3.3 includes the revelation of all directly adverse authority in the controlling jurisdiction that has not otherwise been raised by opposing counsel. See, e.g., Newberger v. Newberger, 311 So. 2d 176 (Fla. 4th DCA 1975)(while expressing confidence that counsel's error was inadvertent, court admonished counsel regarding responsibility to fully inform court on the applicable law, whether favorable or adverse to client's position; counsel had cited as authority two cases from other jurisdictions, without pointing out that this court had already expressly rejected those decisions in an earlier case). See also Piambino v. Bailey, 757 F.2d 1112, 1131 (11th Cir. 1985), in which the court found that counsel for class action plaintiffs was subject to disciplinary proceedings for failing to inform the court that another federal court had dismissed with prejudice a virtually identical claim he had brought on behalf of the same class against the same defendants.

3.3:500   Offering False Evidence

Primary Florida References: FL Rule 4-3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL §§ 115, 117, 120, Wolfram §§ 12.3, 12.43, 12.5

In Florida Bar v. Agar, 394 So. 2d 405 (Fla. 1981), an attorney who allowed his client to perpetrate a fraud upon the court by introducing false testimony was disbarred. The court found "that the attorney (1) arranged, either actively or passively, for a witness to falsely testify before the court, and (2) presented or called a witness on behalf of his client who he had good reason to know would falsely testify before the court, and (3) as an officer of the court failed to immediately notify the judge of such false testimony or in the alternative to withdraw his prayer for relief." See also Dodd v. Florida Bar, 118 So. 2d 17 (Fla. 1960)(attorney who urged and advised several persons, including his clients, to give false testimony in two personal injury actions disbarred); Florida Bar v. Rood, 622 So. 2d 974 (Fla. 1993)(attorney knowingly and intentionally encouraged clients to execute false documents, and exacerbated wrongfulness of action by filing the false documents with probate court, fraudulently misrepresenting status of guardianship case to judge; one-year suspension).

3.3:510      False Evidence in Civil Proceedings

An attorney must reveal to the court any fraud which has or will be perpetrated by another person. Comment, FL Rule 4-3.3. When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client's wishes. Upon ascertaining that material evidence is false, FL Rule 4-3.3 requires that the lawyer seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the rule requires that the attorney take “reasonable remedial measures.” The comment explains the remedial measures. Except in the case of a criminally accused, the rule is that, if necessary to rectify the situation, an advocate must disclose the existence of the client’s deception to the court or to the other party. In Baker v. Myers Tractor Svcs. Inc., 765 So. 2d 149 (Fla. 1st DCA 2000) the appellate court upheld the trial court's dismissal of the plaintiff's claim because the plaintiff had repeatedly lied under oath during discovery regarding previous injuries to the knee that he was arguing had been injured due to the defendant's negligence.

3.3:520      False Evidence in Criminal Proceedings

Where an attorney represents a criminal defendant who intends to offer false testimony or who has already done so, the courts recognize the tension between the attorney's duty of confidentiality and the attorney's duty of candor to the tribunal, as well as the constitutional ramifications regarding the right to effective assistance of counsel. Generally, an attorney's duty of confidentiality does not extend to a client's announced plans to engage in future criminal conduct.

The first step is for the attorney to attempt to remonstrate with the client confidentially. If that fails, the attorney should seek to withdraw if that will remedy the situation. However, if withdrawal will not remedy the situation or is impossible, and the attorney determines that disclosure is the only measure that will avert a fraud on the court, the attorney should make disclosure to the court. In addition, if the attorney learns that the client intends to offer perjured testimony but has not yet done so, and all attempts to persuade the client to testify truthfully have failed, the attorney may threaten to withdraw or to disclose the intent to commit perjury to the court as a means to dissuade the client.

The Supreme Court has affirmed that such a course is constitutionally acceptable and professionally commendable. Nix v. Whiteside, 475 U.S. 157 (1986). If such threats are unsuccessful and the client still intends to testify falsely, the attorney must disclose the fact that his client intends to lie and any information necessary to prevent the commission of the crime of perjury to the tribunal. Comment, FL Rule 4-3.3. Counsel may not participate, even passively, in allowing perjury to be presented without challenge, including a narrative statement by the client. The only exception to this rule is where the court orders the lawyer to proceed. Florida Bar v. Rubin, 549 So. 2d 1000 (Fla. 1989)(attorney could not disobey court order denying his motion to withdraw in situation where client was expected to commit perjury).

One Florida court has also held that an attorney may not avoid expected client perjury by simply resting his case without permitting the client to testify. The courts have also held that inconsistent statements by the client or "mere suspicion" that the client may testify falsely is not enough to trigger the rule. DeHaven v. State, 618 So. 2d 337 (Fla. 2d DCA 1993); Sanborn v. State, 474 So. 2d 309 (Fla. 3d DCA 1985). A lawyer must disclose any false statement by a client in the course of the court proceeding, but has no duty to disclose other false statements of the client, such as an unsworn false statement to an arresting officer. Comment, FL Rule 4-3.3.

3.3:530      Offering a Witness an Improper Inducement

FL Rule 4-3.4(b) prohibits a lawyer from offering an inducement to a witness, and has been held to prohibit a lawyer from paying or offering to pay money or other rewards to a witness in exchange for his testimony, regardless of whether or not that testimony is truthful. Golden Door Jewelry Creations, Inc. v. Lloyd's Underwriters Non-Marine Ass'n, 865 F. Supp. 1516 (S.D. Fla. 1994).

3.3:540      Interviewing and Preparing Witnesses

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

3.3:600   Remedial Measures Necessary to Correct False Evidence

Primary Florida References: FL Rule 4-3.3(a)(4)
Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
Commentary: ABA/BNA § 61:401 et seq., ALI-LGL § 66,67, Wolfram §§ 12.5, 12.6, 13.3.6

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

3.3:610      Duty to Reveal Fraud to the Tribunal

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

3.3:700   Discretion to Withhold Evidence Believed to Be False

Primary Florida References: FL Rule 4-3.3(c)
Background References: ABA Model Rule 3.3(c), Other Jurisdictions
Commentary: ABA/BNA § 61:301, ALI-LGL § 120, Wolfram § 12.5

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

3.3:800   Duty of Disclosure in Ex Parte Proceedings

Primary Florida References: FL Rule 4-3.3(d)
Background References: ABA Model Rule 3.3(d), Other Jurisdictions
Commentary: ABA/BNA § , ALI-LGL § 112 , Wolfram § 12.7

In Florida Bar v. Tobin, 674 So. 2d 127 (Fla. 1996), the court found a violation of FL Rule 4-3.3(d) where plaintiff's counsel, in an ex parte motion to release funds held in the court registry pursuant to a judgment in favor of plaintiff, failed to disclose to the trial court that a lienor was claiming an interest in those funds, and failed to properly serve notice on the opposing party prior to the court order releasing the funds.

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-3.4
Background References: ABA Model Rule 3.4, Other Jurisdictions
Commentary:

3.4:101      Model Rule Comparison

FL Rule 4-3.4(a) prohibits a lawyer from obstructing, or counseling or assisting another to obstruct, another party's access to material that the lawyer knows or reasonably should know is relevant to a pending or reasonably foreseeable proceeding. FL Rule 4-3.4(b) permits a lawyer to pay a witness' reasonable expenses, and to pay a reasonable, noncontingent fee to an expert witness. FL Rule 4-3.4(f)(2) differs from MR 3.4(f)(2) in that the Model Rule's prohibition is based on reasonable belief from the lawyer's perspective, where the Florida Rule's prohibition is based on objective reasonableness.

3.4:102      Model Code Comparison

DR 7-109(A) provides that a lawyer may not suppress any evidence that he or his client has a legal obligation to reveal. DR 7-109(B) provides that a lawyer may not advise or cause a person to secrete himself or to leave the jurisdiction of a tribunal for the purpose of making himself unavailable as a witness. DR 7-109(C) provides a counterpart to the witness fee provisions of FL Rule 4-3.4(b). DR 7-106(A) provides a counterpart to FL Rule 4-3.4(c). DR 7-106(C) provides a counterpart to FL Rule 4-3.4(e).

3.4:103      Overview

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

3.4:200   Unlawful Destruction and Concealment of Evidence

Primary Florida References: FL Rule 4-3.4(a)
Background References: ABA Model Rule 3.4(a), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL §§ 118, 119, Wolfram § 12.3

The exercise of the procedural right to obtain evidence through subpoena or discovery can be thwarted if relevant material is altered, concealed or destroyed. Comment, FL Rule 4-3.4. The prohibition against unlawfully obstructing another party's access to evidence includes the nondisclosure of facts to another party. In Florida Bar v. Myers, 581 So. 2d 128 (Fla. 1991), an attorney in a dissolution of marriage proceeding was found to have violated FL Rule 4-3.4(a) when he failed to inform the court of the fact that his client's wife was represented by new counsel. This provision was also applied to the indirect nondisclosure of facts in Florida Bar v. Burkich-Burrell, 659 So. 2d 1082 (Fla. 1995), where an attorney failed to properly review her client's response to interrogatories, and thus failed to correct omissions contained in those responses. The court concluded that she had failed by inaction to disclose material facts to opposing counsel.

3.4:210      Physical Evidence of Client Crime

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

3.4:300   Falsifying Evidence

Primary Florida References: FL Rule 4-3.4(b)
Background References: ABA Model Rule 3.4(b), Other Jurisdictions
Commentary: ABA/BNA §§ 61:601, 61:701, ALI-LGL § 118, Wolfram § 12.3

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

3.4:310      Prohibited Inducements

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

3.4:400   Knowing Disobedience to Rules of Tribunal

Primary Florida References: FL Rule 4-3.4(c)
Background References: ABA Model Rule 3.4(c), Other Jurisdictions
Commentary: ABA/BNA § 61:1231, ALI-LGL § 105, Wolfram § 12.1

The obligation to obey the requirements of the tribunal applies not only to an attorney in the role as a legal counselor, but also to any other contacts with the court system. In Florida Bar v. Kirkpatrick, 567 So. 2d 1377 (Fla. 1990), the court determined that an attorney violated FL Rule 4-3.4(c) when he failed to appear before the court on several occasions in response to his arrest, causing the issuance of three bench warrants, and failed to complete his probationary obligations until just prior to the final hearing before the referee.

3.4:500   Fairness in Pretrial Practice

Primary Florida References: FL Rule 4-3.4(d)
Background References: ABA Model Rule 3.4(d), Other Jurisdictions
Commentary: ABA/BNA § 61:701, ALI-LGL § 106, Wolfram § 12.4

FL Rule 4-3.4(d) prohibits the intentional failure to comply with legally proper discovery requests. In Florida Bar v. Bloom, 632 So. 2d 1016 (Fla. 1994), counsel was found to have violated this provision when he failed to timely answer interrogatories, even after he was ordered by the trial court to do so, and failed to pay costs imposed on him as a sanction for failing to answer the interrogatories. The attorney was suspended for 91 days.

3.4:600   Improper Trial Tactics

Primary Florida References: FL Rule 4-3.4(e)
Background References: ABA Model Rule 3.4(e), Other Jurisdictions
Commentary: ABA/BNA § 61:1361, ALI-LGL § 107, Wolfram § 12.1

FL Rule 4-3.4(e) prohibits attorneys from making statements of personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused. In the most basic application of this provision, counsel in Davis v. Owens-Illinois, Inc., 632 So. 2d 1065 (Fla. 3d DCA 1994), was found to have violated the rule when he made several comments on the evidence by asserting his personal opinion as to the credibility of the witnesses. See also Albertson's Inc. v. Brady, 475 So. 2d 986 (Fla. 2d DCA 1985)(plaintiff's attorney stated his personal opinion as to the credibility of the plaintiff's injuries); Walt Disney World Co. v. Blalock, 640 So. 2d 1156 (Fla. 5th DCA 1994)(plaintiff's counsel expressed his personal opinion that it was "outrageous" for defendant to assert contributory negligence, expressed his personal opinion on the credibility of several of defendant's witnesses, and insinuated that defendant intentionally inflicted injury upon plaintiff); Silva v. Nightingale, 619 So. 2d 4 (Fla. 5th DCA 1993)(attorney stated his own opinion as to credibility of witness when he stated that chiropractors more readily give permanent impairment ratings than do physicians). However, it is not improper for a lawyer to state that a witness "lied" or is a "liar," if "such characterizations are supported by the record." Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010, 1028 (Fla. 2000). "If the evidence supports such a characterization, counsel is not impermissibly stating a personal opinion about the credibility of a witness, but is instead submitting to the jury a conclusion that reasonably may be drawn from the evidence." Id. at 1029.

The use of the personal pronoun "I" during closing argument is not necessarily improper. In a given context, the use of the phrases "I think" and "I believe" may be merely figures of speech. Id. "When determining whether counsels' use of the personal pronoun 'I' is improper, judges must not place form over substance; it must be understood that trial counsel is required to analyze the evidence and present reasonable interpretations and inferences based on the evidence to the jury." Id.

Other arguments that have been found improper include: a lawyer's repeated use of the term "B.S. detector", a lawyer's comment that if the jury found for the plaintiff they would be "accessories after the fact to tax fraud", a lawyer's referring to the plaintiff's case as an attempt to cash in on a lottery ticket. Id. at 1032.

Florida courts have also applied FL Rule 4-3.4(e) to actions by prosecutors. In Singletary v. State, 483 So. 2d 8 (Fla. 2d DCA 1985), the prosecutor was found to have injected into the jury's consideration his personal beliefs as to the defendant's suit when he stated, "you know as well as I that [the defendant] certainly intended to harm [the victim] with that gun...." See also Florida Bar v. Schaub, 618 So. 2d 202 (Fla. 1983)(prosecutor's insertion of personal opinions on psychiatry and insanity defense into his questioning violates FL Rule 4-3.4(e)); Jones v. State, 449 So. 2d 313 (Fla. 5th DCA 1984)(prosecutor’s statements regarding his personal beliefs in the defendant’s guilt and the credibility of the state’s witness found improper and inappropriate); In Murray v. State, 425 So. 2d 157 (Fla. 4th DCA 1983), quashed State v. Murray, 443 So. 2d 955, 957 (Fla. 1984), the court found that the prosecutor’s comment that defendant was man who thought he could bend and twist the law to his own advantage and lie in court was a clear violation of the prohibition against statements of personal opinion as to credibility of witnesses. On appeal, the Florida Supreme Court held that although the prosecutor’s remarks were “excessively pungent,” the error was harmless and did not require reversal of the conviction. State v. Murray, 443 So. 2d 955, 957 (Fla. 1984).

FL Rule 4-3.4(e) also contains a provision prohibiting allusions to matters the lawyer does not reasonably believe are relevant. In Pippin v. Latosynski, 622 So. 2d 566 (Fla. 1st DCA 1993), the court determined that plaintiff counsel's expression of outrage that the defense failed to address his client, a Catholic priest, as "Father" "appears to have been made solely for the purpose of raising sympathy for the plaintiff and was totally outside the realm of materiality in the instant lawsuit." The court also ordered a new trial because additional comments made by the attorney (including references to defendant's "damage control" and to funds spent by the defense) amounted to opinions in violation of FL Rule 4-3.4(e).

In Venning v. Roe, 616 So. 2d 604 (Fla. 2d DCA 1993), the issue involved the provision of FL Rule 4-3.4(e) prohibiting attorney statements of personal opinion as to the culpability of a civil litigant, as well as opinions as to the credibility of a witness. The defense counsel argued that the plaintiff's medical expert was "nothing more than an unqualified doctor who prostitutes himself... for the benefit of lawyers," who is paid to perform a service by giving the "magic testimony" for plaintiff's lawyer which allows him to get the case to court. Defense counsel also asserted there was a "special relationship" between plaintiff's medical expert and plaintiff's lawyer and told the jury that plaintiff's counsel presented "a work of fiction" which he "created and orchestrated" with the assistance of the medical expert. The court held that these statements were improper and highly prejudicial, and that a new trial was warranted.

In Florida Bar v. Kelner, 670 So. 2d 62 (Fla. 1996), an attorney was reprimanded under FL Rule 4-3.4(e) for making repeated references to the mental anguish suffered by his client as a result of his ex-wife's affair with her physician, despite the trial court's order instructing the attorney not to elicit testimony outside the scope of the client's claim for loss of consortium.

When a lawyer makes improper remarks during closing argument and the opposing party properly objects, the standard for determining whether to grant a new trial is whether the remarks were "highly prejudicial and inflammatory." Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010, 1013 n.2 (Fla. 2000). If the opposing party fails to object, the complaining party must at least file a motion for new trial to preserve the issue. Then a four-pronged test must be applied. To receive a new trial in a civil case based on unobjected-to closing argument, a party must prove that the argument being challenged: (1) is improper; (2) is harmful; (3) is incurable; and (4) so damaged the fairness of the trial that the public's interest in our system of justice requires a new trial. The court noted several important policy concerns. Contemporaneous objections should be required because objection "can deter opposing counsel from making further improper argument, thus preventing improper argument from becoming cumulative." Id. at 1026. And, "requiring a contemporaneous objection prevents counsel from engaging in 'sandbagging' tactics, whereby counsel may intentionally refrain from objecting to improper closing argument, hoping to prevail despite such argument, and then seek relief based on the unobjected-to argument in the event that the desired outcome in the case is not achieved." Further, "requiring a contemporaneous objection provides the trial judge, who is in the best position to evaluate the propriety and possible impact of allegedly improper closing argument, with the optimal opportunity to stop such argument when it is made." Id. "Finally, requiring a contemporaneous objection helps prevent confusion that can stem from appellate courts making 'cold record' decisions regarding improper closing argument." Id.

Improper Argument

FL Rule 4-3.4 governs lawyers presenting closing arguments in criminal or civil trials. "The underpinnings of this ethical rule are well-founded; it not only prevents lawyers from placing their own credibility at issue in a case, it also limits the possibility that the jury may decide a case based on non-record evidence." Murphy, 766 So. 2d at 1028. "In sum, rule 4-3.4 is in place to help ensure that juries render verdicts based on record evidence and applicable law, not based on impermissible matters interjected by counsel during closing argument." Id.

Harmful Argument

Improper comments must be "so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury. Passing remarks of little consequence in the scope of a lengthy trial should find little sympathy if no contemporaneous objection is voiced. The extensiveness of the objectionable material is a factor to be considered in the harmfulness analysis. In sum, the improper closing argument comments must be of such a nature that it reaches into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments." Id. at 1030. This is indeed a high standard.

Incurable Argument

The complaining party must prove that "even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict." Id. This is also a high standard and the court recognized that "it will be extremely difficult for a complaining party to establish that the unobjected-to argument is incurable." Id.

Argument that so Damages the Fairness of the Trial that the Public's Interest in our System of Justice Requires a New Trial

The court recognized that this category must "necessarily be narrow in scope." Id. "For example, closing argument that appeals to racial, ethnic, or religious prejudices is the type of argument that traditionally fits within this narrow category of improper argument requiring a new trial even in the absence of an objection." Id.

In Murphy, the court cautioned against using the remedy of a new trial to punish the misconduct of an attorney. Id. at 1029. "[C]losing argument that is violative of rule 4-3.4 does not necessarily constitute harmful error." Id. Thus, while discipline of the lawyer may be in order, a new trial is not necessarily appropriate. "We in no way condone improper comments but conclude the litigation process is intended to resolve the pending dispute, not provide a mechanism to deal with wayward lawyers." "[I]n many cases, '[w]hen argument descends to the level of ethical violations, there are other ways to address the transgression than reversal of a jury verdict." Id. (quoting Fravel v. Haughey, 727 So. 2d 1033, 1036 (Fla. 5th DCA 1999) (en banc)). But see Johnnides v. Amoco Oil Co., 778 So. 2d 443, 444 n.2 (Fla. 3d DCA 2001) in which a very frustrated Judge Schwartz expressed his utter lack of confidence in the "other ways" of addressing lawyer misconduct. "[O]f the many occasions in which members of this court reluctantly and usually only after agonizing over what we thought was the seriousness of doing so—have found it appropriate to make such a referral about a lawyer's conduct in litigation, . . . none has resulted in the public imposition of discipline—not even a reprimand—whatever." Id.

3.4:700   Advising Witness Not to Speak to Opposing Parties

Primary Florida References: FL Rule 4-3.4(f)
Background References: ABA Model Rule 3.4(f), Other Jurisdictions
Commentary: ALI-LGL § 118, Wolfram § 12.4.2

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3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-3.5
Background References: ABA Model Rule 3.5, Other Jurisdictions
Commentary:

3.5:101      Model Rule Comparison

FL Rule 4-3.5 is much more extensive than MR 3.5. FL Rule 4-3.5(b) sets forth particular circumstances under which ex parte communications in an adversary proceeding are permitted. FL Rule 4-3.5(d) sets forth restrictions on communications with jurors. The restrictions in the Florida Rule are not limited to the lawyer personally, but also forbid the lawyer to cause another to make a forbidden communication with a judge or jury member.

3.5:102      Model Code Comparison

The Model Code contains no direct counterpart to the extensive provisions of FL Rule 4-3.5. DR 7-108(A) & (B) and 7-110(B) correspond roughly to MR 3.5(a) & (b). DR 7-106(C)(6) corresponds to FL Rule 4-3.5(c) in that it prohibits undignified or discourteous conduct degrading to a tribunal.

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

Primary Florida References: FL Rule 4-3.5(a)
Background References: ABA Model Rule 3.5(a), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 101:702, ALI-LGL §§ 113, 115, Wolfram §§ 11.3, 11.4

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3.5:210      Improperly Influencing a Judge

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3.5:220      Improperly Influencing a Juror

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3.5:300   Improper Ex Parte Communication

Primary Florida References: FL Rule 4-3.5(b)
Background References: ABA Model Rule 3.5(b), Other Jurisdictions
Commentary: ABA/BNA § 61:801, 61:903, ALI-LGL §§ 112, 113, Wolfram § 11.3.3

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3.5:400   Intentional Disruption of a Tribunal

Primary Florida References: FL Rule 4-3.5(c)
Background References: ABA Model Rule 3.5(c), Other Jurisdictions
Commentary: ABA/BNA § 61:901, ALI-LGL § 105, Wolfram § 12.1.3

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3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-3.6
Background References: ABA Model Rule 3.6, Other Jurisdictions
Commentary:

3.6:101      Model Rule Comparison

FL Rule 4-3.6 is substantially different from MR 3.6. Both rules were modified in reaction to Gentile v. State Bar of Nevada, 501 U.S. 1030, 111 S.Ct. 2720, 115 L. Ed. 2d 888 (1991), which held that a Nevada rule substantially similar to the former Florida and Model rules was unconstitutionally vague. The ABA's response was to create a new "safe harbor" provision allowing lawyers to protect clients against undue prejudice caused by outside publicity. The Florida response was to delete the "safe harbor" provisions altogether and incorporate the "substantial likelihood of material prejudice" standard found acceptable in Gentile. Thus, FL Rule 4-3.6(a) prohibits an extrajudicial statement that will have a substantial likelihood of materially prejudicing an adjudicative proceeding due to its creation of an "imminent and substantial detrimental effect" on the proceeding. FL Rule 4-3.6(b) forbids a lawyer to counsel or assist another to make such a statement.

3.6:102      Model Code Comparison

DR 7-107 is the general counterpart to FL Rule 4-3.6, though the Florida rule is much less detailed than the Model Code provision.

3.6:200   Improper Extrajudicial Statements

Primary Florida References: FL Rule 4-3.6(a)
Background References: ABA Model Rule 3.6(a), Other Jurisdictions
Commentary: ABA/BNA § 61:1001, ALI-LGL § 109, Wolfram § 12.2

Requirement of "substantial likelihood of material prejudice"

Rodriguez v. Feinstein, 734 So. 2d 1162 (Fla. 3d DCA 1999) was a medical malpractice case appealing court order immediately enjoining plaintiffs and/or their counsel from discussing any matters or issues regarding the case to the media without leave of court. The action involved medication prescribed by dermatologist to women without warning them to not get pregnant while taking the medication. The child of a woman who did get pregnant was born with an abnormality. In an effort to find women similarly situated, plaintiff's counsel placed an ad in the Miami Herald seeking to interview women who were prescribed this medication by the defendant. The plaintiffs were also interviewed by the Today Show. In quashing the protective order, the court reasoned that "gag orders imposed upon attorneys and litigants are only proper if the restraint on speech is narrowly tailored to achieve the objective sought." There had been no showing in this case that the order was necessary to preclude a substantial likelihood of material prejudice to the trial—there was no evidence that the extra-judicial statements made posed an imminent threat to a fair trial. Additionally, in reaching this conclusion, the court noted that adverse publicity, although pervasive, does not necessarily lead to an unfair trial. Each case must be determined on a case by case basis. The primary purpose for the limitations on communications between lawyers and the media is to ensure a fair trial.

Prohibited Statements

In The Florida Bar v. Graham, 679 So. 2d 1181 (Fla. 1996) a judge was found guilty of two counts of misconduct during JQC proceedings including attitude and activities that were often disruptive, scandalous, improper, and contemptuous. In a previous opinion, the Supreme Court sanctioned the judge for, among other things, his effort to rid political favoritism and government corruption that caused the demise of his predecessor. The court stated that this pursuit clouded his ability to impartially adjudicate matters before him. While the basis for the violation is unclear from the opinion, the court found the judge guilty of violating, among other rules, FL Rule 4-3.6 describing the violation as making prejudicial extrajudicial statements.

State v. Davis, 1991 WL 206568 (Fla. 8th Cir. Ct. 1991) was a case involving a double homicide extensively covered by the media. Part of that coverage involved extrajudicial statements by prosecutors and law enforcement involved in the case regarding purported statements made by the defendant. In finding a violation of FL Rule 4-3.6, the court emphasized the importance of the competing interests involved with this rule: the right of the defendant to a fair trial and the right of the public to information through the media. In considering whether a violation has occurred, the court must attempt to foresee the effect the publicity had or will have on the defendant's unqualified right to a fair trial. The court should additionally consider alternative judicial tools such as voir dire, sequestration, jury instructions, and challenges to compensate for any damage already done to the defendant. This damage could not only arise from statements currently made by counsel, but also from the future effect the statements could have on a fair trial should the statements be reprinted by the media at the time of trial.

Restrictive Orders on Trial Participants

In News-Journal Corp. v. Foxman, 939 F.2d 1499 (11th Cir. 1991), the state court entered a restrictive order prohibiting trial participants from communicating extrajudicially with third parties. The court imposed the order primarily to minimize the sensational nature of the trial and to limit the adverse effect additional publicity could have on a fair trial. A newspaper brought this action claiming that the order would impede its ability to adequately inform the public of the case. In holding that the newspaper was not deprived of its First Amendment rights, the court noted that the United States Supreme Court has suggested a restrictive order limiting extrajudicial commentary of trial participants as an alternative to a prior restraint on the media. (citing Sheppard v. Maxwell, 384 U.S. 333, 361 (1966)). There was no less restrictive means of ensuring a fair trial in this case. Although this case does not directly implicate FL Rule 4-3.6, the court noted in a footnote the difference between the restrictive order in this case and the limitations imposed on lawyers through ethical rules. Ethical rules relating to trial publicity impose a restriction only on those in the legal profession to refrain from making comments that could be prejudicial to the case—trial participants are not governed by such rules. The court in News-Journal noted that lawyers are uniquely qualified to determine which extrajudicial statements are prejudicial. Consequently, when it becomes necessary to impose an order on all trial participants, merely requiring that the participants refrain from making prejudicial statements may not be sufficient.

In Florida Freedom Newspapers v. McCrary, 520 So. 2d 32 (Fla. 1988), two jailers, charged with criminal mistreatment of prisoners, filed motions to preclude, among other things, all trial participants from discussing the evidence and charges filed against them to control prejudicial pretrial publicity. The court partially granted the motion and prohibited public comment by the state attorney's office and the sheriff's department. While the court primarily addressed the statutory right of access to material when it becomes a public record, the court also noted that there is no constitutional impediment to a court's decision to prohibit trial participants from making prejudicial pretrial comments which are intended to be disbursed to third parties.

Sealing records

In Bludworth v. Palm Beach Newspapers, 476 So. 2d 775 (Fla. 4th DCA 1985), the court distinguished the former disciplinary rule (similar to the current rule) which prevented lawyers from making out of court statements that may be publicized, from the mere release, without elaboration by the attorney, of information contained in a public record. The rule does not prohibit a lawyer from releasing information obtained during an investigation; it only prohibits a lawyer from providing any commentary on the information that could be prejudicial to the case.

In Miami Herald Publishing Co. v. Collazo, 329 So. 2d 333 (Fla. 3d DCA 1976), an action against the city of Miami was settled and the parties wished for the terms of the settlement agreement to be kept confidential. Plaintiffs brought this action asserting that their constitutional rights were violated by precluding them from adequately gathering and publishing the news. The court held that the power to exclude materials from the public may only be exercised for cogent reasons—the fact that the settlement agreement could potentially affect future actions against the city was not a cogent reason warranting exclusion. "An informed public depends on accurate and effective reporting by the media."

In Miami Herald Publishing Co. v. McIntosh, 340 So. 2d 904 (Fla. 1976), the court discussed its duty to control prejudicial publicity in pursuit of a fair trial and the right of the press to freely publish information important to the public, then addressed its right to limit litigants directly affected by court proceedings:

Muzzling lawyers who may wish to make public statement to gain public sentiments for their clients has long been recognized as within the court's inherent power to control professional conduct. The constant spotlight of public officials during litigation makes it imperative that they be more subject to judicial restrictions against inflammatory and prejudicial statements than other persons.

An attorney may not write a letter to the editor of a newspaper commenting on the merits of pending civil litigation in which he is involved and on his own credibility. This is true even when the newspaper, which is published by a party to the litigation, printed an article commenting on the merits and the lawyer's credibility, and even if the attorney's letter merely quotes from the lawyer's brief. FL Eth. Op. 78-3 (Apr. 6, 1978). An attorney representing a government interest is bound by the same ethical considerations as an attorney for a private individual with respect to statements or publicity pertaining to litigation pending by or against the government FL Eth. Op. 70-43 (Jan. 12, 1971). A lawyer may allow a newspaper reporter to inspect the lawyer's copy of a deposition taken in a civil suit of considerable public interest if the deposition is available for public inspection in the court clerk's office, if the reporter, not the lawyer, instigated the inquiry, and if the lawyer refrains from improper discussion of pending litigation. FL Eth. Op. 65-43 (July 30, 1965).

3.6:300   Permissible Statements

Primary Florida References: FL Rule 4-3.6(a)
Background References: ABA Model Rule 3.6(b), Other Jurisdictions
Commentary: ABA/BNA § 69:1001, ALI-LGL § 109, Wolfram § 12.2

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3.6:400   Responding to Adverse Publicity

Primary Florida References: FL Rule 4-3.6(a)
Background References: ABA Model Rule 3.6(c), Other Jurisdictions,
Commentary: ABA/BNA § 69:1001, ALI-LGL § 109, Wolfram § 12.2

3.7   Rule 3.7 Lawyer as Witness

• Primary Florida References: FL Rule 4-3.7
Background References: ABA Model Rule 3.7, Other Jurisdictions
Commentary:

3.7:101      Model Rule Comparison

FL Rule 4-3.7(a) prohibits the lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary witness on behalf of the client. FL Rule 4-3.7(a) also permits the lawyer to testify where the testimony will relate solely to a matter of formality and there is no reason to believe substantial evidence will be offered in opposition to the testimony.

3.7:102      Model Code Comparison

DR 5-102(A) is similar to FL Rule 4-3.7(a) in that it prohibits a lawyer from serving as advocate if the lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client. DR 5-102(B) explicitly permits the lawyer to act as advocate if the lawyer learns or it is obvious that he or a lawyer in his firm may be called as a witness other than on behalf of the client. DR 5-101(B) permits the lawyer to testify while representing a client under certain conditions similar to those set forth in FL Rule 4-3.7(a).

3.7:200   Prohibition of Advocate as Witness

Primary Florida References: FL Rule 4-3.7(a)
Background References: ABA Model Rule 3.7(a), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5

Florida courts have interpreted FL Rule 4-3.7 to disqualify a lawyer from testifying as a material witness on behalf of the client's cause. See Springtree Country Club Plaza v. Blaut, 642 So. 2d 27 (Fla. 4th DCA 1994)(attorney who brought personal injury action on behalf of his wife, and who asserted claim on his own behalf for loss of consortium, should have been disqualified from representing his wife or himself); Hubbard v. Hubbard, 233 So. 2d 150 (Fla. 4th DCA 1970)(attorney's fees should not have been awarded to divorce attorney who testified on merits of the case on behalf of his client); In re Estate of Freeman, 240 So. 2d 656 (Fla. 3d DCA 1970)(refusing to permit executor's attorney to testify on crucial point concerning his opinion of testamentary capacity of testatrix). Further, the attorney bears the responsibility of anticipating that the client's cause may require the lawyer's testimony. In such cases, the lawyer must advise the client to retain alternative counsel. See Florida Bar v. Rosenburg, 387 So. 2d 935 (Fla. 1980)(reprimanding attorney for continuing to represent client after it was obvious that attorney might be necessary witness); Millican v. Hunter, 73 So. 2d 58 (Fla. 1954)(upholding trial court's refusal to allow plaintiff's attorney to testify on behalf of client regarding statements made by one defendant to another in presence of said attorney).

Even though the rule refers only to lawyers testifying on behalf of their clients, a lawyer may also be precluded from representing a client when the opposing party intends to call the lawyer as a witness. See, e.g., In re Captran Creditors Trust v. North Am. Title Ins. Agency, Inc., 104 B.R. 442 (Bankr. M.D. Fla. 1989)(disqualifying attorney from representing client where attorney's testimony was likely to conflict substantially with testimony of his client); Bammac, Inc. v. Grady, 500 So. 2d 274 (Fla. 1st DCA 1986)(disqualifying attorney whose testimony would have caused conflict between his own proprietary interests and his client's interests). However, an attorney may not be disqualified solely because the opposing party intends to call the attorney as a witness when the testimony in question would not be prejudicial to a client. See Devins v. Peitzer, 622 So. 2d 558 (Fla. 3d DCA 1993)(holding that attorney may not be disqualified from representing estate in will contest merely because contestants announced intention to call attorney as adverse witness where attorney's testimony would not be contrary to interests of estate); Allstate Ins. Co. v. English, 588 So. 2d 294 (Fla. 2d DCA 1991)(rejecting disqualification of attorney based solely on opposing party's allegation that it intended to call attorney as witness); Ray v. Stuckey, 491 So. 2d 1211 (Fla. 1st DCA 1986)(holding that attorney may continue representing client until it is apparent that his testimony would be adverse to factual assertions or account of events offered by his client); Williams v. Wood, 475 So. 2d 289 (Fla. 5th DCA 1985)(holding that lawyer may continue representing client where his testimony for the opposing party is not prejudicial to his client.

Notwithstanding the general prohibition against the advocate/witness, FL Rule 4-3.7 does allow an attorney to testify on behalf of a client under the following circumstances: (1) when the testimony to be provided by the lawyer relates to an uncontested issue; (2) when the testimony to be provided by the lawyer relates to the nature and value of legal services rendered in the case; or (3) when disqualification of the lawyer would work substantial hardship on the client. Exceptions are permitted in those cases where combining the role of advocate and witness is not problematic or where a balancing of interests reveals that justice would not be served by preventing the attorney from representing the client. See Beth S. v. Grant Assocs., Inc., 426 So. 2d 1008 (Fla. 3d DCA 1983)("Plainly, a lawyer is not required to decline employment or to withdraw as counsel in a case because the lawyer will be a witness where, as here, the lawyer's testimony relates to an uncontested matter which is not prejudicial to client"); Beavers v. Conner, 258 So. 2d 330 (Fla. 3d DCA 1972)(permitting member of law firm representing plaintiff to testify about uncontroverted matters); compare Live & Let Live, Inc. v. Carlsberg Mobile Home Props., Ltd., 388 So. 2d 629 (Fla. 1st DCA 1980)(refusing to recognize justification for continued representation by attorney who intended to testify on client's behalf where client could find other competent counsel); Draganescu v. First Nat'l Bank, 502 F.2d 550 (5th Cir. 1974)(holding that neither attorney’s ability to speak Romanian language of his clients nor alleged reluctance of other lawyers to take cases involving Romanians on a contingent fee basis constituted substantial hardship to clients which would merit exception to rule). The rule prohibits a lawyer from acting as an advocate at trial if the lawyer is likely to be a necessary witness. The rule does not prevent a lawyer-witness from representing the client in pretrial proceedings such as depositions. Colombo v. Puig, 745 So. 2d 1106 (Fla. 3d DCA 1999); Fleitman v. McPherson, 691 So. 2d 37 (Fla. 1st DCA 1997).

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

Primary Florida References: FL Rule 4-3.7(b)
Background References: ABA Model Rule 3.7(b), Other Jurisdictions
Commentary: ABA/BNA § 61:501, ALI-LGL § 108, Wolfram § 7.5, 7.6

FL Rule 4-3.7 permits lawyers to represent clients at trial even though other lawyers in their law firms are likely to be called as witnesses unless doing so would violate FL Rule 4-1.7 or FL Rule 4-1.9. See, e.g., In re Estate of Gory, 570 So. 2d 1381 (Fla. 4th DCA 1990)(disqualification of counsel improper where opposing party intends to call members of law firm as witnesses absent showing that proposed witnesses would testify adversely to partner's client).

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-3.8
Background References: ABA Model Rule 3.8, Other Jurisdictions
Commentary:

3.8:101      Model Rule Comparison

FL Rule 4-3.8 omits subdivisions (b), (e), and (f) of MR 3.8. The Florida rule Comment clarify that Florida has adopted the ABA Standards of Criminal Justice Relating to Prosecution Function.

3.8:102      Model Code Comparison

DR 7-103 sets forth the Model Code requirements for a prosecutor, similar to FL Rule 4-3.8(a) & (c).

3.8:200   The Decision to Charge

Primary Florida References: FL Rule 4-3.8(a)
Background References: ABA Model Rule 3.8(a), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10

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3.8:300   Efforts to Assure Accused's Right to Counsel

Primary Florida References: FL Rule 4-3.8(b)
Background References: ABA Model Rule 3.8(b), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10

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3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

Primary Florida References: FL Rule 4-3.8(b)
Background References: ABA Model Rule 3.8(c), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10

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3.8:500   Disclosing Evidence Favorable to the Accused

Primary Florida References: FL Rule 4-3.8(c)
Background References: ABA Model Rule 3.8(d), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10.5

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3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

Primary Florida References: FL Rule 4-3.8(c)
Background References: ABA Model Rule 3.8(e), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 97, Wolfram § 13.10

3.8:700   Issuing a Subpoena to a Lawyer

• Primary Florida References:
Background References: ABA Model Rule 3.8(f), Other Jurisdictions
Commentary: ABA/BNA § 55:1301, ALI-LGL § 97

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3.8:800   Making Extrajudicial Statements

Primary Florida References: FL Rule 4-3.6(a)
Background References: ABA Model Rule 3.8(g), Other Jurisdictions
Commentary: ABA/BNA § 61:601, ALI-LGL § 109, Wolfram § 12.2.2

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3.8:900   Peremptory Strikes of Jurors

Primary Florida References:
Background References: Other Jurisdictions
Commentary:

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary:

3.9:101      Model Rule Comparison

FL Rule 4-3.9 is virtually identical to MR 3.9. The only difference is that where the Model Rule requires a lawyer representing a client before a legislative or administrative tribunal must comply with all of MR 3.5, FL Rule 4-3.9 requires compliance with FL Rule 4-3.5(a), (c), and (d). FL Rule 4-3.5(b) applies only to ex parte contacts with a judge or official before whom an adversary proceeding is pending, and would thus not relate to the nonadjudicative proceedings treated in FL Rule 4-3.9.

3.9:102      Model Code Comparison

The Model Code has no counterpart to FL Rule 4-3.9, except the aspirational goals set forth in EC 7-15, 7-16, and 8-5.

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

Primary Florida References: FL Rule 4-3.9
Background References: ABA Model Rule 3.9, Other Jurisdictions
Commentary: ALI-LGL § 104, Wolfram § 13.8

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