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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-4.1
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:

4.1:101      Model Rule Comparison

FL Rule 4-4.1 is identical to MR 4.1.

4.1:102      Model Code Comparison

DR 7-102(A)(5) is similar to FL Rule 4-4.1(a).

4.1:200   Truthfulness in Out-of-Court Statements

Primary Florida References: FL Rule 4-4.1(a)
Background References: ABA Model Rule 4.1(a), Other Jurisdictions
Commentary: ABA/BNA 71:201, ALI-LGL 98, Wolfram 13.5

A lawyer violated Rule 4-4.1 when he submitted to counsel for an insurance company a fictitious notice of voluntary dismissal. Florida Bar v. Varner, 780 So. 2d 1 (Fla. 2001). The lawyer had settled a claim and asked his secretary to prepare a notice of voluntary dismissal. The secretary then informed him that she had not been able to fill in a file number because no such action had been commenced. At the time he settled the claim, the lawyer believed that an action had been filed. He took the notice of dismissal and filled in a fictitious file number and sent it to counsel for the insurance company. A document is a "statement" for purposes of Rule 4-4.1. The court imposed a ninety-day suspension. The court was especially troubled by the fact that after an error was made in the representation of a client, the lawyer, instead of admitting the error, "develop[ed] a deception to cover up the error so that it [would] go undetected." The lawyer's "decision to go forward with a deception rather than honestly admitting to his mistake is so contrary to the most basic requirement of candor" that the court could not impose a short-term suspension.

4.1:300   Disclosures to Avoid Assisting Client Fraud [see also 1.6:370]

Primary Florida References: FL Rule 4-4.1(b)
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA 71:203, ALI-LGL 66, Wolfram 12.6, 13.3

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

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:

4.2:101      Model Rule Comparison

FL Rule 4-4.2 permits an attorney, without prior consent, to communicate with another's client in order to meet the requirements of a statute or contract requiring notice or service of process directly on the opposing party. Such direct communications must be limited to that required by the statute or contract, and the adverse party's lawyer must be copied. The Comment to the Florida Rule states that the rule covers any person, whether or not a party to the formal proceeding, who is represented by counsel concerning the matter in question. The Florida Rule comment does not include the new paragraphs 2, 5, and 6 of the Comment to MR 4.2 added by the ABA in 1995.

4.2:102      Model Code Comparison

DR 7-104(A)(1) is similar to FL Rule 4-4.2, except for the Florida rule's provision permitting an attorney to communicate with another's client to meet the requirements of a statute or contract requiring notice or service of process directly on the opposing party.

4.2:200   Communication with a Represented Person

Primary Florida References: FL Rule 4-4.2
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA 71:303, ALI-LGL 99-102, Wolfram 11.6.2

Generally, FL Rule 4-4.2 provides that when a lawyer represents a client, the lawyer should not communicate about the subject of the representation with a person the lawyer knows is represented by another lawyer in the matter, unless the lawyer has the consent of the opposing attorney. The rule excepts communications with another lawyer's client necessary to meet the requirements of a statute, or to provide notice or service of process. FL Rule 4-4.2 does not prohibit communication with parties concerning matters outside the representation. Further, parties to a matter may communicate directly with each other.

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

FL Rule 4-4.2's prohibition against communication with persons known to be represented by counsel applies to communication with current employees of an organization "whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization." Comment, FL Rule 4-4.2. However, communications with former employees is permitted, unless they are known to be represented by counsel. H.B.A. Management, Inc. v. Estate of Schwartz, 693 So. 2d 541 (Fla. 1997)(citing with approval Fl. Bar Op. 88-14 (Mar. 7, 1989) and ABA Formal Op. 91-359 (Mar. 22, 1991)). The rationale for permitting such communications is that former employees cannot bind the organization or make admissions on its behalf.

Communications with a represented party concerning a matter outside the subject matter of the representation are permitted. Comment, FL Rule 4-4.2.

The rule also prohibits communicating an offer of settlement to an adverse party known to be represented by counsel. Florida Bar v. Shapiro, 413 So. 2d 1184 (Fla. 1982).

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

FL Rule 4-4.2 applies to lawyers involved in prosecution of criminal cases. State v. Yatman, 320 So. 2d 401 (Fla. 4th DCA 1975)(condemning violation of prior Code of Professional Responsibility, but not requiring dismissal of information discovered during the course of the violative deposition). See also Suarez v. State, 481 So. 2d 1201 (Fla. 1985)(prosecuting attorney violated disciplinary rule by interviewing defendant without notifying defense counsel; defendant's statements not suppressed). In In re Disciplinary Proceedings Regarding John Doe, 876 F. Supp. 265 (M.D. Fla. 1993), the court held that FL Rule 4-4.2 does not apply to noncustodial communications with corporate employees during criminal investigations, including grand jury investigations, that have not become formal proceedings initiated by making of arrest, filing of complaint, or return of indictment, even though the prosecutor knows that corporate counsel is acting in the matter and the employee in question may have information that could be used against the corporation. Fl. Bar Op. 90-4 holds that FL Rule 4-4.2 contains no exception for activities of U.S. Department of Justice attorneys.

4.2:230      Communications "Authorized by Law" -- Other

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

4.2:240      Communication with a Represented Government Agency or Officer

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

4.2:250      Communication with a Confidential Agent of Non-Client

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

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:

4.3:101      Model Rule Comparison

FL Rule 4-4.3 is identical to MR 4.3.

4.3:102      Model Code Comparison

DR 7-104(A)(2) provides that a lawyer may not give advice to an unrepresented person, other than advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of the lawyer's client.

4.3:200   Dealing with Unrepresented Person

Primary Florida References: FL Rule 4-4.3
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA 71:501, ALI-LGL 103, Wolfram 11.6.3

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

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of Florida Rule

Primary Florida References: FL Rule 4-4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:

4.4:101      Model Rule Comparison

FL Rule 4-4.4 is identical to MR 4.4.

4.4:102      Model Code Comparison

DR 7-102(A)(1) provides that a lawyer may not take any action on behalf of his client when he knows or it is obvious that such action would serve merely to harass or maliciously injure another.

4.4:200   Disregard of Rights or Interests of Third Persons

Primary Florida References: FL Rule 4-4.4
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA 71:101, ALI-LGL 103, 106, Wolfram 12.4.4

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

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

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

4.4:220      Threatening Prosecution [see 8.4:900]

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