f/k/a . . . the archives

May 24, 2004

Clients Treated Like Adults in Florida! (Lawyers, too)

Filed under: pre-06-2006 — David Giacalone @ 12:27 am

Although facing raging nannyism (over sex with clients) and enraged ninnyism (over advertising by lawyers), the Florida Supreme Court has issued revised rules of professional conduct for lawyers that demonstrate a belief that clients who have reached their majority are indeed adults.  The rules suggest that lawyers might be responsible adults, too.  (See Amendment to the Rules Regulating The Florida Bar, 5/20/2004.  As usual, Tim Chinaris has done an excellent job at sunEthics, summarizing the rule changes and linking to relevant materials).

 

embrace small  As for the nannyism, see the concurring opinion of Justice Pariente [apt name] in Florida Bar v. Bryant, 813 So.2d 38 (Fla. 2002), where the judge recommends the total prohibition of sexual relationships between a lawyer and client during the lawyer-client relationship (leaving no loophole for prior relationships — nor even mentioning spouses.)   Justice Pariente favorably quotes a law review article stating:


Even an arguably “consensual” relationship could end up with a client alleging she was coerced or manipulated into the relationship. An express rule would protect the client from the attorney and the attorney from the client, thereby preserving the integrity of the legal profession.

Note: the Bryant opinion should be R-rated, but please finish reading this posting before checking it out.  Sneak preview: Lawyer Bryant told his client, “the happier you keep me, the harder I will work.”)   ethicalEsq fully explained his disagreement with absolute prohibitions here, and the current Editor, not surprisingly, concurs.  

 

The prior rule in Florida banned sexual relations that “exploit” a client.  sunEthics (05/20/04) has a good summary of the changes:


The revised rule provides that a lawyer may not “engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the interests of the client or the lawyer-client relationship.”  Rule 4-1.8(i).  New language provides examples of offending conduct, including demanding sexual relations as a condition of representation, coercing or intimidating a client into acquiescing to sexual relations, or allowing the sexual relationship to cause the lawyer to render incompetent representation.  New language in the Comment provides that a “client” means not only an individual but “a representative of the client.. 

Justice Pariente continues her nanny role with another concurrence (at page 26), in which she requests “that this rule be assessed periodically to ensure that it operates to guarantee that the attorney-client relationship is not compromised in any regard as a result of an ongoing sexual relationship.”   Wouldn’t that be a great use of scare bar counsel resources?

 


masks  On the subject of ninnyism over lawyer advertising, see our recent posting, concerning the current legislative push to ban virtually all advertising that “solicits” litigation.  Instead of caving to this legislative pressure to further limit advertising, the Florida Supreme Court chose to remove many restrictions on television and radio advertising, while banning features that are “deceptive, misleading, manipulative, or . . . likely to confuse the viewer,” and insisting that all statements that are required to be included in lawyer ads be “clearly legible if written or intelligible if spoken aloud.” 

 

Existing paternalistic prohibitions have been eliminated, including:



  • The requirement that verbal and visual portrayals or depictions be “objectively relevant to the selection of an attorney” is eliminated.  (Former Rule 4-7.2(b)(4).


  • The requirement that illustrations be “directly related and objectively relevant to a viewer’s possible need for legal services” is eliminated.  (Former Rule 4-7.2(c)(1).)


As sunEthics explains, under the new rules, “A non-lawyer spokesperson may speak or appear in TV and radio ads, provided the spokesperson ‘is not a celebrity recognizable to the public’ and makes ‘a spoken disclosure identifying the spokesperson as a spokesperson and disclosing that the spokesperson is not an attorney.’” (New Rule 4-7.2(b)(2).)


ship to label  One final issue: Fla. Bar Rule 4-1.5 has also been amended to provide that a lawyer’s costs must be reasonable, and listing factors to be considered in determining reasonable costs.  sunEthics points out (emphasis added) that:


This new rule can benefit lawyers in at least 2 ways.  First, it contains a “safe harbor” provision specifying that a lawyer’s costs “shall be presumed reasonable” when there is a written attorney-client contract “in which the method is established for charging costs.”  Amended Rule 4-1.5(b).  Second, new language in the Comment to Rule 4-1.5 approves the practice of lawyers using charges for “in-house costs” (such as “copying, faxing, long distance telephone, and computerized research”) and “in-house services” (such as “paralegal services, investigative services, accounting services, and courier services”) as profit centers.  Amended Rule 4-1.5(a), (b) and Comment.

While the pyj team believes that a lawyer can ethically enter into an agreement with a client that includes specific charges for in-house costs and services, we want to emphasize that determining reasonableness starts with looking at the nature and extent of the disclosure made to the client about the costs.”  Therefore, the revised Comment to the Florida rule stresses (1) general overhead should be accounted for in the lawyer’s fee, and (2) “The lawyer should sufficiently communicate with the client regarding the costs charged to the client so that the client understands the amount of costs being charged or the method for calculation of those costs.


  • pencil  The lawyer should not take advantage of the “captive” nature of the client as a customer of in-house services and costs.  Using an analogy to candy: the price should be similar to that found at your local drug store and supermarket (including mulit-packs and bulk discounts), and not like the cost at the counter of a movie theater.

10 Comments

  1. I hope you’re sitting down, because I have a real-life anecdote to quickly relate to you. It illustrates the absurdity of Justice Pariente’s opinion. Apologies for the length; feel free to edit if you wish.

    A few years ago, my lovely wife was an international student from a western European country. She had suffered many injustices before making her way to this country, and in recognition of that she won a coveted, discretionary right to live in this country permanently. Unfortunately, this right was strictly conditioned on our federal government’s timely processing of her immigration paperwork. If the government was untimely, even through no fault of her own, she would have to leave.

    Needless to say, the government bungled up her file. Despite having 2 years to process it, with only 10 days left before she would irrevocably lose her right to live here, they were still telling her, “Stop bothering us. We’ll handle it.” She had nowhere to go, no formal government remedy to appeal to (typical of immigration law), and no resources to fight these stubborn government bureaucrats. Except for one little thing: me.

    On her behalf, I filed an emergency mandamus action in federal district court. Within 2 days, a brilliant jurist (former law clerk to a certain Supreme Court justice) who sits on the federal bench called us and the US Attorney into his courtroom for an emergency hearing. My motion was air-tight and the case law directly on point. The judge admonished the government, and granted our mandamus relief. His order, and the check for attorney fees we subsequently won under the Equal Access to Justice Act, are currently framed on my office wall.

    Justice Pariente would have barred me from taking this extraordinary action on behalf of my wife (she was in fact my fiancee at the time). Clearly, while her proposed rule has good intentions, it is far too sweeping and does not recognize a myriad of circumstances where intimate relations should not necessarily bar an attorney from representing a client. Note, I would not have taken on representation of my wife for a matter concerning protracted litigation. But this was a one-shot, all-or-nothing emergency injunctive motion and I was the only person in a position to do it pro bono. Justice was achieved because I was permitted to act on her behalf, despite my relationship with her.

    Comment by UCL — May 24, 2004 @ 8:55 pm

  2. I hope you’re sitting down, because I have a real-life anecdote to quickly relate to you. It illustrates the absurdity of Justice Pariente’s opinion. Apologies for the length; feel free to edit if you wish.

    A few years ago, my lovely wife was an international student from a western European country. She had suffered many injustices before making her way to this country, and in recognition of that she won a coveted, discretionary right to live in this country permanently. Unfortunately, this right was strictly conditioned on our federal government’s timely processing of her immigration paperwork. If the government was untimely, even through no fault of her own, she would have to leave.

    Needless to say, the government bungled up her file. Despite having 2 years to process it, with only 10 days left before she would irrevocably lose her right to live here, they were still telling her, “Stop bothering us. We’ll handle it.” She had nowhere to go, no formal government remedy to appeal to (typical of immigration law), and no resources to fight these stubborn government bureaucrats. Except for one little thing: me.

    On her behalf, I filed an emergency mandamus action in federal district court. Within 2 days, a brilliant jurist (former law clerk to a certain Supreme Court justice) who sits on the federal bench called us and the US Attorney into his courtroom for an emergency hearing. My motion was air-tight and the case law directly on point. The judge admonished the government, and granted our mandamus relief. His order, and the check for attorney fees we subsequently won under the Equal Access to Justice Act, are currently framed on my office wall.

    Justice Pariente would have barred me from taking this extraordinary action on behalf of my wife (she was in fact my fiancee at the time). Clearly, while her proposed rule has good intentions, it is far too sweeping and does not recognize a myriad of circumstances where intimate relations should not necessarily bar an attorney from representing a client. Note, I would not have taken on representation of my wife for a matter concerning protracted litigation. But this was a one-shot, all-or-nothing emergency injunctive motion and I was the only person in a position to do it pro bono. Justice was achieved because I was permitted to act on her behalf, despite my relationship with her.

    Comment by UCL — May 24, 2004 @ 8:55 pm

  3. No editing needed, UCL. Thank you for sharing a good example and a good story. (I would have cashed the check, after making a nice photocopy.)

    Comment by David Giacalone — May 24, 2004 @ 9:15 pm

  4. No editing needed, UCL. Thank you for sharing a good example and a good story. (I would have cashed the check, after making a nice photocopy.)

    Comment by David Giacalone — May 24, 2004 @ 9:15 pm

  5. Thanks David. As for the check, the funds actually went to my law firm, which generously allowed me to spend massive amounts of pro bono time on this case at the expense of billable time (a good 40 hours in the space of 2 weekdays and a weekend).

    Comment by UCL — May 24, 2004 @ 9:31 pm

  6. Thanks David. As for the check, the funds actually went to my law firm, which generously allowed me to spend massive amounts of pro bono time on this case at the expense of billable time (a good 40 hours in the space of 2 weekdays and a weekend).

    Comment by UCL — May 24, 2004 @ 9:31 pm

  7. As Lawyer Bryant might say: “Wow, she must have been keeoing you very happy!!”

    Comment by David Giacalone — May 24, 2004 @ 9:42 pm

  8. As Lawyer Bryant might say: “Wow, she must have been keeoing you very happy!!”

    Comment by David Giacalone — May 24, 2004 @ 9:42 pm

  9. I’d better plead the 5th at this point before you get me in trouble.

    Comment by UCL — May 25, 2004 @ 1:20 pm

  10. I’d better plead the 5th at this point before you get me in trouble.

    Comment by UCL — May 25, 2004 @ 1:20 pm

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