Law Office Management and Ethics for Paralegals 2019 Edition
Law Office Management and Ethics for Paralegals
Sep 13, 2022
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2019 Edition
11161 E State Road 70 #110-213 Lakewood Ranch, Florida 34202
www.lawpracticecle.com941-584-9833
LawPracticeCLE is a national continuing legal education company designed to provide education on current, trending issues in the legal world to judges, attorneys, paralegals and other interested business professionals. New to the playing field, LawPracticeCLE is a major contender with its offerings of Live Webinars, On-Demand Videos, and In-person Seminars. LawPracticeCLE believes in quali- ty education, exceptional customer service, long-lasting relationships and networking beyond the classroom. We cater to the needs
of three divisions within the legal realm: Pre-Law and Law Students, Paralegals and other support staff, and Attorneys.
At LawPracticeCLE, we partner with experienced attorneys and legal professionals from all over the country to bring hot topics and current content that are relevant in legal practice. We are always looking to welcome dynamic and accomplished lawyers to share their knowledge!
As a LawPracticeCLE Speaker, you receive a variety of benefits. In addition to CLE teaching credit attorneys earn for presenting, our presenters also receive complimentary tuition on LawPracticeCLE’s entire library of webinars and self-study courses.
LawPracticeCLE also affords expert professors unparalleled exposure on a national stage in addition to being featured in our Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving our speakers the chance to network with attorneys across the country. We also offer a host of ways for our team of speakers to promote their programs, including highlight clips, emails, and much more!
1. A Course Description 2. 3-4 Learning Objectives or Key Topics 3. A Detailed Agenda 4. A Comprehensive PowerPoint Presentation
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LawPracticeCLE Unlimited is an elite program allowing Attorneys and Legal Professionals unlimited access to all LawPracticeCLE live and on-demand courses for an entire year.
LawPracticeCLE provides 20 new continuing legal education courses each month that will not only appeal to your liking, but also meet your State Bar Requirements.
Top Attorneys and Judges from all over the country partner with us to provide a wide variety of course topics from basic to advanced. Whether you are a paralegal or an experienced attorney, you can expect to grow from the wealth of knowledge our speakers provide.
A View From The Bench Animal Law Bankruptcy Law Business Law Cannabis Law Construction Law Criminal Law Cybersecurity Law Education Law Employment Law Entertainment Law
COURSE CATEGORIES
Estate Planning Ethics, Bias, and Professionalism Family Law Federal Law Food and Beverage Law Gun Law Health Law Immigration Law Intellectual Property Law Insurance Law Nonprofit Law
ACCREDITATION
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More Coming Soon ...
LawPracticeCLE will seek approval of any CLE program where the registering attorney is primarily licensed and a single alternate state. The application is submitted at the time an attorney registers for a course, therefore approval may not be received at the time of broadcasting. In the event a course is denied credit, a full refund or credit for another LawPracticeCLE course will be provided.
LawPracticeCLE does not seek approval in Illinois or Virginia, however the necessary documentation to seek CLE credit in such states will be provided to the registrant upon request.
ADVERTISING WITH LAWPRACTICECLE
At LawPracticeCLE, we not only believe in quality education, but providing as many tools as possible to increase success. LawPracticeCLE has several advertising options to meet your needs. For advertising and co-sponsorship information, please contact the Director of Operations, Jennifer L. Hamm, [email protected].
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Joseph A. Corsmeier, Esquire
Clearwater, Florida 33761
Office: (727) 799-1688
Case Law On Confidentiality and Privilege
Relevant Ethics Opinions of The Florida Bar
Florida Bar Rules Regulating Paralegals
Social Media and Ethics
Resources for Resolving Ethics Issues
Why Non-Lawyer Staff Must Follow the
Rules Regulating The Florida Bar
Rule 4-5.3 Responsibilities Regarding Non-Lawyer
Assistants
for, or under the direction of, a lawyer or Authorized
Business Entity (ABE) (entity authorized to practice
law).
Rules Regulating The Florida Bar
Rule 4-5.3 Responsibilities Regarding Non-Lawyer
Assistants
All lawyers are responsible for non-lawyer conduct that
violates Bar rules if the lawyer orders it, ratifies it after
learning of it, or is a partner or has direct supervisory
control and fails to take reasonable remedial measures
to mitigate or avoid the consequences.
Why Non-Lawyer Staff Must Follow the
Rules Regulating The Florida Bar
Non-Lawyer Compliance with Bar Rules (a.k.a. institutional control) under Rule 4-5.3
Partner in law firm is required to make reasonable efforts to ensure that firm has implemented measures to give reasonable assurance that non-lawyer’s conduct is in compliance with the professional obligations of the lawyer under the Bar rules.
Lawyer/supervisor of non-lawyer is required to make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations under Bar rules.
Consequences of Failure to
Supervise Non-Lawyer Staff
The Florida Bar v. Riggs, 944 So. 2d 167 (Fla. 2006) Lawyer found guilty of engaging in fraud, deceit, dishonesty or
misrepresentation and received 3 year suspension and probation for; inter alia, failing to pay $118,000.00 mortgage for which he was holding the funds. Lawyer claimed that shortfall and failure to pay mortgage was due to the dishonesty of non-lawyer employee and that failure to supervise the employee was unintentional. Even if that defense was true, attorney’s assigning of fiduciary trust account responsibilities to non-lawyer and then failing to supervise her activities was knowing and intentional conduct sufficient to show intent under Bar rule. Also, knowingly or intentionally engaging in sloppy trust account bookkeeping can amount intent under Rule 4- 8.4(c).
Consequences of Failure to
The Florida Bar v. Lawless, 640 So. 2d 1098 (Fla.1994)
90 day suspension (with 3 years probation, payment of restitution,
prohibition on supervising paralegals, and removal of name from
lawyer referral lists) for failure to adequately supervise paralegal not
employed by lawyer; however, lawyer advised clients that his fee
could be paid through paralegal and promised clients that he would
supervise the paralegal’s activities. Lawyer apparently did not
receive a fee and paralegal kept fee paid by clients but was required
to reimburse $12,546.00 to the clients since “he was responsible for
the conduct of his non lawyer employee and thus must reimburse
the (clients).”
(and Lawyers)
Rule 4-1.6 Confidentiality of Information (a) Consent Required to Reveal Information. A lawyer
shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent
(b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent a client from committing a crime; or
(2) to prevent a death or substantial bodily harm to another.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.6 Confidentiality of Information
(c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to serve the client's interest unless it is information the client
specifically requires not to be disclosed;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
(3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
(4) to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(5) to comply with the Rules of Professional Conduct.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.6 Confidentiality of Information
(d) Exhaustion of Appellate Remedies. When required by a tribunal to reveal such information, a lawyer may first
(e) Limitation on Amount of Disclosure. When disclosure is mandated or permitted, the lawyer shall disclose no more information than is required to meet the requirements or accomplish the purposes of this rule.
Case Law On Confidentiality and Privilege
Breach of Confidentiality after Attorney-Client Relationship has been Terminated.
Elkind v. Bennett, 958 So.2d 1088 (4th DCA 2007)
4th DCA held that a legal malpractice claim may be brought against a lawyer who allegedly breached client confidences after the attorney-client relationship has been terminated and caused damages; however, the client must allege the breach “with particularity” and how the disclosure damaged the client.
Ethics Opinion on Inadvertent Receipt of
Confidential Documents/Materials
Lawyer who receives confidential documents of an
adversary as a result of an inadvertent release is
ethically obligated to promptly notify the sender of the
attorney's receipt of the documents.
Note: Since this opinion was adopted, the Florida Supreme Court
implemented Rule 4-4.4(b): "[a] lawyer who receives a document
relating to the representation of the lawyer's client and knows or
reasonably should know that the document was inadvertently sent
shall promptly notify the sender."
Ethics in Electronic Media and Blogs:
Breach of Attorney/Client Confidentiality
Illinois assistant public defender charged with revealing identities and confidences of criminal defendant clients in her blog. Lawyer also allegedly said that a judge was “a total a—hole” and called another “Judge Clueless”.
Complaint filed by lawyer for Illinois disciplinary commission on August 25, 2009. (Agency File No. 09 CH 89)
To be continued…
Potential Disqualification After Lawyer Inadvertently Receives Privileged Materials
Applied Digital Solutions, Inc. v. Vasa, 941 So. 2d 404 (Fla. 4th DCA 2006)
4th DCA opined that there is no automatic disqualification when a lawyer in advertently receives privileged materials.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.7 Conflict of Interest; General Rule
(a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer shall not represent a client if:
(1) the representation of 1 client will be directly adverse to another client; or
(2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.7 Conflict of Interest; General Rule
(b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer 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 the assertion of a position
adverse to another client when the lawyer represents both clients 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.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.7 Conflict of Interest; General Rule
(c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
(d) Lawyers Related by Blood or Marriage. A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.7 Conflict of Interest; General Rule
(e) Representation of Insureds. Upon undertaking the representation of an insured client at the expense of the insurer, a lawyer has a duty to ascertain whether the lawyer will be representing both the insurer and the insured as clients, or only the insured, and to inform both the insured and the insurer regarding the scope of the representation. All other Rules Regulating The Florida Bar related to conflicts of interest apply to the representation as they would in any other situation.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-3.1. Meritorious Claims and Contentions
A lawyer is prohibited from making claims or defenses in litigation unless there is a non-frivolous basis for doing so, including a good faith argument for an extension, modification, or reversal of existing law. Notwithstanding the above, a criminal defense attorney may defend by requiring that every element of the charges be proven. The comment to the rule states that an action is frivolous if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or the lawyer cannot make a good faith argument to support the action
Bar Rules Relevant to Paralegals
(and Lawyers)
litigation consistent with the interests of the client. The
comment to the rule states that delay should not be used
merely for the convenience of the lawyer or to frustrate
the other party’s attempt to obtain redress.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-3.3 Candor Toward the Tribunal
Lawyer cannot make false statements of fact or law to a court, fail to disclose a material fact, assist in crime or fraud, fail to disclose controlling legal authority, or permit any witness, including criminal defendant, to offer false evidence.
A lawyer may refuse to offer false evidence of client. A lawyer who later determines that material evidence is
false must take reasonable remedial measures, including urging witness not to present false evidence, withdrawal, and in camera disclosure to the court.
Bar Rules Relevant to Paralegals
(and Lawyers)
and relevant document, fabricate evidence, counsel or
assist a witness to testify falsely, or pay a fact witness to
testify.
obligation exists. If appeals exhausted, must comply.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-3.4 (continued)
Lawyer cannot make frivolous discovery request or fail to comply with proper request of opposing party.
Lawyer cannot advise a person other than the client , a relative of the client, or an agent of the client to refuse to voluntarily give relevant information except under certain circumstances.
Lawyer cannot present, participate in presenting, or threaten to make criminal or disciplinary charges solely to gain advantage in a civil matter.
Bar Rules Relevant to Paralegals
(and Lawyers)
Lawyer (or lawyer’s agent) cannot communicate with
jurors from beginning of voir dire and after trial or mistrial
unless the juror makes first contact or with the court’s
permission in order to investigate juror fraud under strict
conditions.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-4.1 Truthfulness in Statements to Others.
Lawyer (or lawyer’s agent) cannot make a material false statement to a third person or fail to disclose to avoid or prevent fraud.
Rule 4-4.2 Communication with Represented Persons
Lawyer (or lawyer’s agent) cannot communicate with a person known to be represented about the subject of the representation unless specifically permitted by statute and must strictly comply with statute.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-4.3 Dealing with Unrepresented Persons
Lawyer (or lawyer’s agent) cannot imply that the attorney is disinterested if the person misunderstands the lawyer’s role and must correct any misunderstanding if it exists.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-4.4 Respect for Rights of Third Persons
In representing a client, a lawyer (or the lawyer’s agent) cannot use means that have no substantial purpose other than to embarrass, delay, or burden a third person or violate that person’s legal rights.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-4.4 Respect for Rights of Third Persons
In representing a client, the lawyer (or agent/employee) is prohibited from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, or knowingly using methods to obtain evidence that violate the legal rights of that person.
Bar Rules Relevant to Paralegals
(and Lawyers)
Confidentiality attaches to information lawyer receives from prospective client even if no attorney-client relationship established.
Lawyer is prohibited from representing a client whose interests are materially adverse to prospective client in same or similar matter if lawyer received information to disadvantage of prospective client; however,
Bar Rules Relevant to Paralegals
(and Lawyers)
Even if the lawyer receives disqualifying information from a previous prospective client, he or she can represent the new client if:
1) the “affected” prospective client gives informed consent in writing or;
2) a lawyer who received the information from the prospective client takes “reasonable remedial measures” to avoid exposure to more disqualifying information than necessary, the disqualified lawyer is screened and written notice is promptly given to prospective client.
Objections to Alleged “Overbroad”
Discovery Requests
Life Care Centers of America v. Reese, 948 So. So 830 (Fla. 5th DCA 2007)
The 5th DCA quashed a trial court order compelling discovery by a nursing home before first ruling on the Defendant’s claim that the discovery request was overbroad. In the opinion, the Court cautioned against overly broad discovery requests and urged the lawyers to work together to narrow the requests. Some commentary includes a reminder to all of the lawyers of their ethical obligations and the observation that “(s)ome of the requests propounded in this case are so patently overbroad that they are clearly frivolous.”
Ethics Opinions of The Florida Bar
Electronic Storage of files
Opinion 06-1 lawyers may, but are not required to, store files electronically unless a statute or rule requires retention of an original document, the original document is the property of the client, or destruction of a paper document adversely affects the client’s interests. Files stored electronically must be readily reproducible and protected from inadvertent modification, degradation or destruction.
Ethics Opinions of The Florida Bar
Electronic Metadata
Opinion 06-02 lawyer’s responsibilities regarding mining “metadata. Metadata is considered confidential of it is inadvertently sent to the opposing party. Sending lawyer should take care to ensure the confidentiality of all information, including metadata, in the document and the receiving lawyer should not try to obtain information from metadata if he or she knows it wasn’t intended to be sent. Lawyer who inadvertently receives information via metadata in an electronic document should notify sender of the information's receipt. Opinion is not intended to address metadata in the context of discovery documents (covered by the doctrine of privilege).
Ethics Opinions of The Florida Bar
Internet Practice and e-mail encryption
Opinion 00-4 (July 15, 2000) An attorney may provide legal services over the Internet, through the attorney's law firm, on matters not requiring in-person consultation or court appearances. All rules of professional conduct apply, including competence, communication, conflicts of interest, and confidentiality. An attorney may communicate with the client using unencrypted e-mail under most circumstances. If a matter cannot be handled over the Internet because of its complexity, the matter must be declined.
Ethics Opinions of The Florida Bar
Outsourcing
Opinion 07-2 (January 18, 2008) A lawyer is not prohibited from engaging the services of an overseas provider to provide paralegal assistance as long as the lawyer adequately addresses ethical obligations relating to assisting the unlicensed practice of law, supervision of non-lawyers, conflicts of interest, confidentiality, and billing. The lawyer should be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties.
Ethics Opinions of The Florida Bar
Ethics Op. 71-39 non-lawyer employee can be listed on business card if non lawyer status is disclosed.
Ethics Op. 73-41 law firm employee not admitted in Florida is prohibited from practicing law and taking depositions.
Ethics Op. 74-35 non-lawyer employees prohibited from engaging in settlement negotiations with adjusters
Ethics Opinions of The Florida Bar
Ethics Op. 76-33 and 76-38 lawyers are prohibited from including non-lawyer employees in overhead and also billing for the same services.
Ethics Op. 86-4 non-lawyer employees can be listed on firm letterhead and business cards if non-lawyer status disclosed.
Ethics Op. 87-11 non-lawyer employees prohibited from signing lawyer’s name to pleadings or other court documents.
Ethics Opinions…
11161 E State Road 70 #110-213 Lakewood Ranch, Florida 34202
www.lawpracticecle.com941-584-9833
LawPracticeCLE is a national continuing legal education company designed to provide education on current, trending issues in the legal world to judges, attorneys, paralegals and other interested business professionals. New to the playing field, LawPracticeCLE is a major contender with its offerings of Live Webinars, On-Demand Videos, and In-person Seminars. LawPracticeCLE believes in quali- ty education, exceptional customer service, long-lasting relationships and networking beyond the classroom. We cater to the needs
of three divisions within the legal realm: Pre-Law and Law Students, Paralegals and other support staff, and Attorneys.
At LawPracticeCLE, we partner with experienced attorneys and legal professionals from all over the country to bring hot topics and current content that are relevant in legal practice. We are always looking to welcome dynamic and accomplished lawyers to share their knowledge!
As a LawPracticeCLE Speaker, you receive a variety of benefits. In addition to CLE teaching credit attorneys earn for presenting, our presenters also receive complimentary tuition on LawPracticeCLE’s entire library of webinars and self-study courses.
LawPracticeCLE also affords expert professors unparalleled exposure on a national stage in addition to being featured in our Speakers catalog with your name, headshot, biography and link back to your personal website. Many of our courses accrue thousands of views, giving our speakers the chance to network with attorneys across the country. We also offer a host of ways for our team of speakers to promote their programs, including highlight clips, emails, and much more!
1. A Course Description 2. 3-4 Learning Objectives or Key Topics 3. A Detailed Agenda 4. A Comprehensive PowerPoint Presentation
LawPracticeCLE The Law in Review
LAWPRACTICECLE UNLIMITED
LawPracticeCLE Unlimited is an elite program allowing Attorneys and Legal Professionals unlimited access to all LawPracticeCLE live and on-demand courses for an entire year.
LawPracticeCLE provides 20 new continuing legal education courses each month that will not only appeal to your liking, but also meet your State Bar Requirements.
Top Attorneys and Judges from all over the country partner with us to provide a wide variety of course topics from basic to advanced. Whether you are a paralegal or an experienced attorney, you can expect to grow from the wealth of knowledge our speakers provide.
A View From The Bench Animal Law Bankruptcy Law Business Law Cannabis Law Construction Law Criminal Law Cybersecurity Law Education Law Employment Law Entertainment Law
COURSE CATEGORIES
Estate Planning Ethics, Bias, and Professionalism Family Law Federal Law Food and Beverage Law Gun Law Health Law Immigration Law Intellectual Property Law Insurance Law Nonprofit Law
ACCREDITATION
Paralegal Studies Personal Injury Law Practice Management & Trial Prep Real Estate Law Religious Law Social Security Law Specialized Topics Tax Law Technology Law Transportation Law Tribal Law
More Coming Soon ...
LawPracticeCLE will seek approval of any CLE program where the registering attorney is primarily licensed and a single alternate state. The application is submitted at the time an attorney registers for a course, therefore approval may not be received at the time of broadcasting. In the event a course is denied credit, a full refund or credit for another LawPracticeCLE course will be provided.
LawPracticeCLE does not seek approval in Illinois or Virginia, however the necessary documentation to seek CLE credit in such states will be provided to the registrant upon request.
ADVERTISING WITH LAWPRACTICECLE
At LawPracticeCLE, we not only believe in quality education, but providing as many tools as possible to increase success. LawPracticeCLE has several advertising options to meet your needs. For advertising and co-sponsorship information, please contact the Director of Operations, Jennifer L. Hamm, [email protected].
CHECK US OUT ON SOCIAL MEDIA
Facebook: https://www.facebook.com/LawPracticeCLE
Joseph A. Corsmeier, Esquire
Clearwater, Florida 33761
Office: (727) 799-1688
Case Law On Confidentiality and Privilege
Relevant Ethics Opinions of The Florida Bar
Florida Bar Rules Regulating Paralegals
Social Media and Ethics
Resources for Resolving Ethics Issues
Why Non-Lawyer Staff Must Follow the
Rules Regulating The Florida Bar
Rule 4-5.3 Responsibilities Regarding Non-Lawyer
Assistants
for, or under the direction of, a lawyer or Authorized
Business Entity (ABE) (entity authorized to practice
law).
Rules Regulating The Florida Bar
Rule 4-5.3 Responsibilities Regarding Non-Lawyer
Assistants
All lawyers are responsible for non-lawyer conduct that
violates Bar rules if the lawyer orders it, ratifies it after
learning of it, or is a partner or has direct supervisory
control and fails to take reasonable remedial measures
to mitigate or avoid the consequences.
Why Non-Lawyer Staff Must Follow the
Rules Regulating The Florida Bar
Non-Lawyer Compliance with Bar Rules (a.k.a. institutional control) under Rule 4-5.3
Partner in law firm is required to make reasonable efforts to ensure that firm has implemented measures to give reasonable assurance that non-lawyer’s conduct is in compliance with the professional obligations of the lawyer under the Bar rules.
Lawyer/supervisor of non-lawyer is required to make reasonable efforts to ensure that the person’s conduct is compatible with the lawyer’s professional obligations under Bar rules.
Consequences of Failure to
Supervise Non-Lawyer Staff
The Florida Bar v. Riggs, 944 So. 2d 167 (Fla. 2006) Lawyer found guilty of engaging in fraud, deceit, dishonesty or
misrepresentation and received 3 year suspension and probation for; inter alia, failing to pay $118,000.00 mortgage for which he was holding the funds. Lawyer claimed that shortfall and failure to pay mortgage was due to the dishonesty of non-lawyer employee and that failure to supervise the employee was unintentional. Even if that defense was true, attorney’s assigning of fiduciary trust account responsibilities to non-lawyer and then failing to supervise her activities was knowing and intentional conduct sufficient to show intent under Bar rule. Also, knowingly or intentionally engaging in sloppy trust account bookkeeping can amount intent under Rule 4- 8.4(c).
Consequences of Failure to
The Florida Bar v. Lawless, 640 So. 2d 1098 (Fla.1994)
90 day suspension (with 3 years probation, payment of restitution,
prohibition on supervising paralegals, and removal of name from
lawyer referral lists) for failure to adequately supervise paralegal not
employed by lawyer; however, lawyer advised clients that his fee
could be paid through paralegal and promised clients that he would
supervise the paralegal’s activities. Lawyer apparently did not
receive a fee and paralegal kept fee paid by clients but was required
to reimburse $12,546.00 to the clients since “he was responsible for
the conduct of his non lawyer employee and thus must reimburse
the (clients).”
(and Lawyers)
Rule 4-1.6 Confidentiality of Information (a) Consent Required to Reveal Information. A lawyer
shall not reveal information relating to representation of a client except as stated in subdivisions (b), (c), and (d), unless the client gives informed consent
(b) When Lawyer Must Reveal Information. A lawyer shall reveal such information to the extent the lawyer reasonably believes necessary:
(1) to prevent a client from committing a crime; or
(2) to prevent a death or substantial bodily harm to another.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.6 Confidentiality of Information
(c) When Lawyer May Reveal Information. A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to serve the client's interest unless it is information the client
specifically requires not to be disclosed;
(2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and client;
(3) to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved;
(4) to respond to allegations in any proceeding concerning the lawyer's representation of the client; or
(5) to comply with the Rules of Professional Conduct.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.6 Confidentiality of Information
(d) Exhaustion of Appellate Remedies. When required by a tribunal to reveal such information, a lawyer may first
(e) Limitation on Amount of Disclosure. When disclosure is mandated or permitted, the lawyer shall disclose no more information than is required to meet the requirements or accomplish the purposes of this rule.
Case Law On Confidentiality and Privilege
Breach of Confidentiality after Attorney-Client Relationship has been Terminated.
Elkind v. Bennett, 958 So.2d 1088 (4th DCA 2007)
4th DCA held that a legal malpractice claim may be brought against a lawyer who allegedly breached client confidences after the attorney-client relationship has been terminated and caused damages; however, the client must allege the breach “with particularity” and how the disclosure damaged the client.
Ethics Opinion on Inadvertent Receipt of
Confidential Documents/Materials
Lawyer who receives confidential documents of an
adversary as a result of an inadvertent release is
ethically obligated to promptly notify the sender of the
attorney's receipt of the documents.
Note: Since this opinion was adopted, the Florida Supreme Court
implemented Rule 4-4.4(b): "[a] lawyer who receives a document
relating to the representation of the lawyer's client and knows or
reasonably should know that the document was inadvertently sent
shall promptly notify the sender."
Ethics in Electronic Media and Blogs:
Breach of Attorney/Client Confidentiality
Illinois assistant public defender charged with revealing identities and confidences of criminal defendant clients in her blog. Lawyer also allegedly said that a judge was “a total a—hole” and called another “Judge Clueless”.
Complaint filed by lawyer for Illinois disciplinary commission on August 25, 2009. (Agency File No. 09 CH 89)
To be continued…
Potential Disqualification After Lawyer Inadvertently Receives Privileged Materials
Applied Digital Solutions, Inc. v. Vasa, 941 So. 2d 404 (Fla. 4th DCA 2006)
4th DCA opined that there is no automatic disqualification when a lawyer in advertently receives privileged materials.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.7 Conflict of Interest; General Rule
(a) Representing Adverse Interests. Except as provided in subdivision (b), a lawyer shall not represent a client if:
(1) the representation of 1 client will be directly adverse to another client; or
(2) there is a substantial risk that the representation of 1 or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.7 Conflict of Interest; General Rule
(b) Notwithstanding the existence of a conflict of interest under subdivision (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer 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 the assertion of a position
adverse to another client when the lawyer represents both clients 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.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.7 Conflict of Interest; General Rule
(c) Explanation to Clients. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.
(d) Lawyers Related by Blood or Marriage. A lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a representation directly adverse to a person who the lawyer knows is represented by the other lawyer except upon consent by the client after consultation regarding the relationship.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-1.7 Conflict of Interest; General Rule
(e) Representation of Insureds. Upon undertaking the representation of an insured client at the expense of the insurer, a lawyer has a duty to ascertain whether the lawyer will be representing both the insurer and the insured as clients, or only the insured, and to inform both the insured and the insurer regarding the scope of the representation. All other Rules Regulating The Florida Bar related to conflicts of interest apply to the representation as they would in any other situation.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-3.1. Meritorious Claims and Contentions
A lawyer is prohibited from making claims or defenses in litigation unless there is a non-frivolous basis for doing so, including a good faith argument for an extension, modification, or reversal of existing law. Notwithstanding the above, a criminal defense attorney may defend by requiring that every element of the charges be proven. The comment to the rule states that an action is frivolous if the client desires to have the action taken primarily for the purpose of harassing or maliciously injuring a person or the lawyer cannot make a good faith argument to support the action
Bar Rules Relevant to Paralegals
(and Lawyers)
litigation consistent with the interests of the client. The
comment to the rule states that delay should not be used
merely for the convenience of the lawyer or to frustrate
the other party’s attempt to obtain redress.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-3.3 Candor Toward the Tribunal
Lawyer cannot make false statements of fact or law to a court, fail to disclose a material fact, assist in crime or fraud, fail to disclose controlling legal authority, or permit any witness, including criminal defendant, to offer false evidence.
A lawyer may refuse to offer false evidence of client. A lawyer who later determines that material evidence is
false must take reasonable remedial measures, including urging witness not to present false evidence, withdrawal, and in camera disclosure to the court.
Bar Rules Relevant to Paralegals
(and Lawyers)
and relevant document, fabricate evidence, counsel or
assist a witness to testify falsely, or pay a fact witness to
testify.
obligation exists. If appeals exhausted, must comply.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-3.4 (continued)
Lawyer cannot make frivolous discovery request or fail to comply with proper request of opposing party.
Lawyer cannot advise a person other than the client , a relative of the client, or an agent of the client to refuse to voluntarily give relevant information except under certain circumstances.
Lawyer cannot present, participate in presenting, or threaten to make criminal or disciplinary charges solely to gain advantage in a civil matter.
Bar Rules Relevant to Paralegals
(and Lawyers)
Lawyer (or lawyer’s agent) cannot communicate with
jurors from beginning of voir dire and after trial or mistrial
unless the juror makes first contact or with the court’s
permission in order to investigate juror fraud under strict
conditions.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-4.1 Truthfulness in Statements to Others.
Lawyer (or lawyer’s agent) cannot make a material false statement to a third person or fail to disclose to avoid or prevent fraud.
Rule 4-4.2 Communication with Represented Persons
Lawyer (or lawyer’s agent) cannot communicate with a person known to be represented about the subject of the representation unless specifically permitted by statute and must strictly comply with statute.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-4.3 Dealing with Unrepresented Persons
Lawyer (or lawyer’s agent) cannot imply that the attorney is disinterested if the person misunderstands the lawyer’s role and must correct any misunderstanding if it exists.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-4.4 Respect for Rights of Third Persons
In representing a client, a lawyer (or the lawyer’s agent) cannot use means that have no substantial purpose other than to embarrass, delay, or burden a third person or violate that person’s legal rights.
Bar Rules Relevant to Paralegals
(and Lawyers)
Rule 4-4.4 Respect for Rights of Third Persons
In representing a client, the lawyer (or agent/employee) is prohibited from using means that have no substantial purpose other than to embarrass, delay, or burden a third person, or knowingly using methods to obtain evidence that violate the legal rights of that person.
Bar Rules Relevant to Paralegals
(and Lawyers)
Confidentiality attaches to information lawyer receives from prospective client even if no attorney-client relationship established.
Lawyer is prohibited from representing a client whose interests are materially adverse to prospective client in same or similar matter if lawyer received information to disadvantage of prospective client; however,
Bar Rules Relevant to Paralegals
(and Lawyers)
Even if the lawyer receives disqualifying information from a previous prospective client, he or she can represent the new client if:
1) the “affected” prospective client gives informed consent in writing or;
2) a lawyer who received the information from the prospective client takes “reasonable remedial measures” to avoid exposure to more disqualifying information than necessary, the disqualified lawyer is screened and written notice is promptly given to prospective client.
Objections to Alleged “Overbroad”
Discovery Requests
Life Care Centers of America v. Reese, 948 So. So 830 (Fla. 5th DCA 2007)
The 5th DCA quashed a trial court order compelling discovery by a nursing home before first ruling on the Defendant’s claim that the discovery request was overbroad. In the opinion, the Court cautioned against overly broad discovery requests and urged the lawyers to work together to narrow the requests. Some commentary includes a reminder to all of the lawyers of their ethical obligations and the observation that “(s)ome of the requests propounded in this case are so patently overbroad that they are clearly frivolous.”
Ethics Opinions of The Florida Bar
Electronic Storage of files
Opinion 06-1 lawyers may, but are not required to, store files electronically unless a statute or rule requires retention of an original document, the original document is the property of the client, or destruction of a paper document adversely affects the client’s interests. Files stored electronically must be readily reproducible and protected from inadvertent modification, degradation or destruction.
Ethics Opinions of The Florida Bar
Electronic Metadata
Opinion 06-02 lawyer’s responsibilities regarding mining “metadata. Metadata is considered confidential of it is inadvertently sent to the opposing party. Sending lawyer should take care to ensure the confidentiality of all information, including metadata, in the document and the receiving lawyer should not try to obtain information from metadata if he or she knows it wasn’t intended to be sent. Lawyer who inadvertently receives information via metadata in an electronic document should notify sender of the information's receipt. Opinion is not intended to address metadata in the context of discovery documents (covered by the doctrine of privilege).
Ethics Opinions of The Florida Bar
Internet Practice and e-mail encryption
Opinion 00-4 (July 15, 2000) An attorney may provide legal services over the Internet, through the attorney's law firm, on matters not requiring in-person consultation or court appearances. All rules of professional conduct apply, including competence, communication, conflicts of interest, and confidentiality. An attorney may communicate with the client using unencrypted e-mail under most circumstances. If a matter cannot be handled over the Internet because of its complexity, the matter must be declined.
Ethics Opinions of The Florida Bar
Outsourcing
Opinion 07-2 (January 18, 2008) A lawyer is not prohibited from engaging the services of an overseas provider to provide paralegal assistance as long as the lawyer adequately addresses ethical obligations relating to assisting the unlicensed practice of law, supervision of non-lawyers, conflicts of interest, confidentiality, and billing. The lawyer should be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties.
Ethics Opinions of The Florida Bar
Ethics Op. 71-39 non-lawyer employee can be listed on business card if non lawyer status is disclosed.
Ethics Op. 73-41 law firm employee not admitted in Florida is prohibited from practicing law and taking depositions.
Ethics Op. 74-35 non-lawyer employees prohibited from engaging in settlement negotiations with adjusters
Ethics Opinions of The Florida Bar
Ethics Op. 76-33 and 76-38 lawyers are prohibited from including non-lawyer employees in overhead and also billing for the same services.
Ethics Op. 86-4 non-lawyer employees can be listed on firm letterhead and business cards if non-lawyer status disclosed.
Ethics Op. 87-11 non-lawyer employees prohibited from signing lawyer’s name to pleadings or other court documents.
Ethics Opinions…
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