Inner Temple Inn Presentation

Report
Inner Temple Presents
She-Lock Holmes &
Dr. Watson starring in:
The Town
Without a
Lawyer
Featuring
Judge Sasser as She-Lock Holmes
Judge Kastrenakes as Dr. Watson
Do you think it was
reasonable for Attorney
Fox to request a retainer
of $100,000?
RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES
Excessive Fees and Costs:
(1) lawyer left with firm conviction that fee or cost
exceeds a reasonable fee to such a degree as to
constitute
clear
overreaching
or
an
unconscionable demand; or
(2) the fee or cost is sought or secured by means of
intentional misrepresentation or fraud upon the
client, a nonclient party, or any court, as to
either entitlement to, or amount of, the fee.
RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES;
Factors to Be Considered
(A)time and labor required; novelty, complexity, difficulty;
skill
(B)likelihood acceptance of employment precludes other
(C) the fee customarily charged in locality for comparable
legal services;
(D) significance of subject matter, responsibility involved,
results obtained;
(E) time limitations imposed by client or circumstances;
(F) nature and length of professional relationship with
client;
(G) experience, reputation, diligence, and ability of lawyer
and skill, expertise, or efficiency of effort reflected; and
(H) whether the fee is fixed or contingent, and, if fixed,
whether client's ability to pay rested significantly on
outcome.
Baratta seemed surprised
Fox sent him another bill.
Rule 4-1.5 (e) Fees & Costs for Legal
Services
(e) Duty to Communicate Basis or Rate of
Fee or Costs to Client. When lawyer has not
regularly represented client, basis or rate of
the fee and costs shall be communicated to
the client, preferably in writing, before or
within a reasonable time after commencing
the representation. Nonrefundable fee shall
be confirmed in writing explaining parties’
intent
Is it possible $100,000 fee
was a nonrefundable fee?
Does this seem acceptable?
FL Bar Ethics Opinion 93-2
Presumption that prepaid fees are
an advance deposit against fees for
work yet to be performed. This is
assumption typical client would
make. Attorney should bear the
burden
of
rebutting
this
presumption.
FL Bar Ethics Opinion 93-2
Is the money earned at the time it is received by the attorney?
A prepaid fee with express agreement it is nonrefundable is earned
on receipt and should be deposited in attorney's general account, not
trust account.
Lawyer may later be obligated to refund part or all of it, in which case
the fee may be found to be excessive, but the money is the lawyer's
upon receipt of it.
Prepaid fee may be given to attorney with understanding it is a
deposit securing a fee yet to be earned. Such money does not belong
to the lawyer, and should be held in trust until earned by
performance of agreed-upon services.
Rule 5-1.1 Trust Accounts
A lawyer shall hold in trust, separate from the
lawyer’s own property, funds and property of
clients or third persons that are in a lawyer’s
possession in connection with a representation. All
funds, including advances for fees, costs, and
expenses, shall be kept in a separate bank or
savings and loan association account maintained in
the state where the lawyer’s office is situated or
elsewhere with the consent of the client or third
person and clearly labeled and designated as a
trust account.
Anything wrong with the
steps Basil Rathbone took?
Rule 4-1.7 Conflict of Interest
(a) A Lawyer must not represent a client if
(1) representation of one client will be directly adverse to another; or
(2) substantial risk that representation will be materially limited by
lawyer's responsibilities to another client, a former client, a third
person, or personal interest of the lawyer.
(b) Informed Consent. Notwithstanding a conflict, a lawyer may
represent a client if:
(1) the lawyer reasonably believes s/he will be able to provide
competent and diligent representation to each affected client;
(2)
the
representation
is
not
prohibited
by
law;
(3) the representation does not involve assertion of a position adverse
to another client in the same proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing or
clearly stated on the record at a hearing.
The Florida Bar v. Mark Rousso
117 So.3d 756 (2013)
A conflict of interest arises when one
client’s funds in a trust account are
used to pay another client.
Prioritizing which client gets paid first
presents a conflict of interest.
Rule 5-1.1 Trust Accounts
(a) Nature of Money or Property Entrusted to
Attorney.
(1) Trust Account Required; Commingling Prohibited.
Lawyer shall hold in trust, separate from lawyer’s own
property, funds and property of clients or third
persons that are in a lawyer’s possession in
connection with a representation. All funds, including
advances for fees, costs, and expenses, shall be kept in
a separate bank or savings and loan association
account maintained in the state where the lawyer’s
office is situated or elsewhere with the consent of the
client or third person and clearly labeled and
designated as a trust account.
Rule 5-1.2(b) Trust Accounting Records and Procedures
Minimum Trust Accounting Records
(1) Separate bank or savings and loan association account in the name of the lawyer
labeled "trust account";
(2) Deposit slips clearly identifying the date and source of all trust funds received
and the client or matter for which the funds were received;
(3) Canceled checks for all funds disbursed from the trust account;
(4) Other documentary support for all disbursements and transfers;
(5) All records regarding all wire transfers into or out of the trust account including
the name of the client or matter for which the funds were transferred or received,
and the purpose of the wire transfer, (e.g., “payment on invoice 1234” or “John Doe
closing”).
(6)Separate cash receipts and disbursements journal;
(7) Separate file or ledger with an individual card or page for each client or matter,
showing all individual receipts, disbursements, or transfers and any unexpended
balance;
(8) All bank or savings and loan association statements for all trust accounts.
What degree of supervision
of a non-lawyer bookkeeper
over a lawyer’s trust account
is necessary?
The Florida Bar v. Riggs
944 So.2d 167 (2006)
Due to failure to abide by trust account
rules, paralegal stole a portion of the trust
account funds, Court found attorney did not
exercise the necessary care and discretion
when he allowed non-attorney employees to
handle the trust accounts without proper
management. Attorney received a three year
suspension.
RULES OF THE SUPREME COURT RELATING TO
ADMISSIONS TO THE BAR
3-10.1 Essential Eligibility Requirements. The
board considers the following attributes to be
essential for all applicants and registrants seeking
admission to The Florida Bar:
c. ability to and the likelihood that, in the practice
of law, one will:
3.conduct financial dealings in a
responsible, honest, and trustworthy manner;
The Florida Bar v. Mark Rousso
117 So.3d 756 (2013)
The Rousso Court considered the total
amount of potential injury to clients,
including the amount which was
covered by the firm’s malpractice
insurance carrier.
FL Bar Ethics Opinion 12-4
A lawyer may not maintain a single trust account
for all real estate transactions and allow audits by
multiple title insurers as required by Florida
Statute § 626.8473(8) unless the lawyer has the
consent of all affected clients or the lawyer
reasonably concludes that it is necessary to serve
affected clients’ interests and the affected clients
have not prohibited the disclosure of the
information.
Section 626.8473(8), Florida Statutes
(8) An attorney shall deposit and maintain all
funds received in connection with transactions in
which the attorney is serving as a title or real
estate settlement agent into a separate trust
account that is maintained exclusively for funds
received in connection with such transactions and
permit the account to be audited by its title
insurers, unless maintaining funds in the separate
account for a particular client would violate
applicable rules of The Florida Bar.
Rule 4-1.6(a) Confidentiality
(a) Consent Required to Reveal
Information. A lawyer must not reveal
information relating to representation of a
client except as stated in subdivisions
unless the client gives informed consent.
PREAMBLE TO THE RULES OF
PROFESSIONAL CONDUCT
PREAMBLE: A LAWYER'S RESPONSIBILITIES
"Informed
consent"
denotes
the
agreement by a person to a proposed
course of conduct after the lawyer has
communicated adequate information and
explanation about the material risks of and
reasonably available alternatives to the
proposed course of conduct.
Rule 4-3.3 Candor to Tribunal
A lawyer shall not knowingly:
(2) fail to disclose a material fact to a
tribunal when disclosure is necessary to
avoid assisting a criminal or fraudulent act
by the client.
The Florida Bar v. Hines
39 So.3d 1196 (2010)
Attorney’s conduct in allowing a nonlawyer, whom
the attorney neither employed, supervised, nor
controlled, to have signatory authority over an
escrow account the attorney opened to handle real
estate closings, resulting in misappropriation of
funds held in trust in the escrow account, violated
Rule 4-5.3(b)(1) providing that a lawyer must make
reasonable efforts to ensure that the conduct of a
nonlawyer associated with the lawyer is compatible
with the professional obligations of the lawyer
The End

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