Under what situations can a lawyer share legal fees with non-lawyers? (ESPN-B)
-Estates for work done before lawyer’s death
-Sale of law practice of dead, disabled, disappeared lawyer
-Pensions paid to retired lawyers
-Non-profit organizations sharing court awarded fees
-Bonuses paid to firm staff
When is Lawyer 1 responsible for the misconduct of Lawyer 2?
- L1 orders L2’s conduct or knowingly ratifies it;
OR
- L1 has supervisory authority over L2, knows of the conduct when it can be remedied, but fails to take action
What is the Duty to report for a lawyer?
A lawyer must report another lawyer’s misconduct where it raises a substantial question as to the lawyer’s honesty, trustworthiness, or fitness to practice law unless that information was learned in confidence.
When must a lawyer communicate the fee rate to new clients?
Lawyer MUST communicate the fee rate to the new client preferably in writing upon commencement of the representation
Do lawyers need to communicate fees to old (existing) clients?
No, if a basic understanding already exists regarding the basis or rate of the fee.
What are the general requirements for fees and costs?
Fees must not be illegal, prohibited, or clearly excessive. Costs charged to a client must also be reasonable.
When is a fee “excessive:?
A fee is excessive when a lawyer of ordinary prudence would have a definite and firm conviction that the fee exceeds a “reasonable fee” that it constitutes overreaching.
What is the mnemonic for factors determining if a fee is reasonable?
ERRANT PLANS (Experience, Reputation, Result, Ability, Novelty & difficulty, Time & labor, Precluded from other work, Limits, Amounts, Normal fees within community, Skill required).
What is a fee advance or retainer?
A lawyer may ask for all or a portion of a fee as an “advance” or “retainer” before starting work on a matter. Amounts received must be placed in a client trust account, from which the lawyer may withdraw sums as the work is performed and the client is billed.
Distinguish an advance from an “availability retainer.”
Advance: Prepayment for specific services to be rendered. Availability retainer: Payment to “reserve” the lawyer’s availability for whenever the client needs it (earned instantly upon agreement to be available).
What is a contingent fee?
A fee where the payment depends on the results/outcome obtained for the client.
What are the requirements for a valid contingent fee arrangement?
- In writing
- Signed by both the client AND all participating lawyers
- States the percentage payable to the lawyer in the event of settlement, trial or appeal.
- States whether expenses are to be deducted from recovery and, if so, whether before or after the calculation of the fee.
What are the extra requirements for contingent fees in tort cases involving personal injury?
- The contract needs to state the client has read and understands his rights
- The client must get a signed copy of the statement
- The statement must state client can cancel within 3 business days of entering into it
What are the extra requirements for contingent fees in medical liability cases?
- Must provide the client with oral and written notice of the Florida Constitution’s fee limit.
- Inform the client that the client must receive at least 70% of the first $250,000 of all damages received, exclusive of costs; client must get 90% of all damages in excess of $250,000. exclusive of costs.
NOTE: Client can waive these conditions but only under oath and in writing.
In what cases are contingent fees prohibited?
Criminal cases and domestic relations cases where the outcome is contingent on securing divorce, alimony, support, or property settlement.
What are the contingent fee caps (presumed excessive if exceeded)?
-Before filing answer or demand: 33 1/3% of recovery up to $1 million, 30% of recovery between $1-2 million, and 20% of recovery over $2 million
-After filing answer or demand: 40% of recovery up to $1 million, 30% of recovery between $1-2 million, and 20% of recovery over $2 million
Rules for dividing fees between lawyers NOT in the same firm (personal injury tort claims)?
75% goes to the lawyer with primary authority and 25% goes to the lawyer with secondary authority (court can authorize a different allocation).
Rules for dividing fees between lawyers NOT in the same firm (other cases)?
Any reasonable division is allowed, provided either:
- The division is proportionate to the work performed;
or - There is a written agreement with the client that the lawyers assumed joint responsibility for the matter.
Note: All referral fees violate the Rules unless they meet these requirements.
What is the key difference between advertisements and solicitation?
-Advertisements: Public communications targeted to a broad audience (e.g., any written/spoken communication seeking legal employment, including social media).
Solicitation: Communication targeted to a specific person (or individual) requiring specific legal needs. Subject to greater regulation due to fears of overreaching and invasion of privacy.
All solicitation is advertising, but not all advertising is solicitation.
What must all advertisements include regarding responsibility?
Name of at least one lawyer or law firm responsible for the ad and the location of practice.
What are the filing requirements for advertisements with the Florida Bar?
Copy filed at least 20 days before dissemination.
Exceptions: Public ads without pictures; public service announcements; listings in directories or bar publications; mailings to current/former clients or other lawyers; information requested by a prospective client.
How long must a lawyer maintain a copy of an advertisement?
At least 3 years after last dissemination.
When is an advertisement considered unduly manipulative?
If it:
Contains emotional dramatization;
uses authority figures; uses celebrity voices or images; gives prospective client an economic incentive to read/engage;
(Editor’s Note: Truthful testimonials by celebrities are now allowed if they comply with rules).
What must characterizations of quality in ads be?
Objectively verifiable.
