Florida Legal Ethics
1.2 Rule 1.2 Scope of Representation
1.2:100 Comparative Analysis of Florida Rule
¥ Primary Florida References:
FL Rule 4-1.2
¥ Background References: ABA
Model Rule 1.2, Other Jurisdictions
¥ Commentary:
1.2:101 Model Rule Comparison
The Florida Rule differs from the Model Rule in two significant ways. In paragraph (a), the Florida rule clarifies that the lawyer is bound by the client's decision whether to make a settlement offer, as well as the client's decision whether to accept such an offer. paragraphs (d)&(e) of the Florida Rule establish a stricter standard than the Model Rule, requiring that the lawyer may not counsel a client to engage in conduct that the lawyer "knows or reasonably should know" is criminal or fraudulent, and must consult with the client if the lawyer "knows or reasonably should know" that the client expects assistance not permitted by the Rules of Professional Conduct.
1.2:102 Model Code Comparison
Paragraph (a) has no counterpart in the Disciplinary Rules, though EC 7-7 and 7-8 fairly imply that the client's decisions should be accepted by the lawyer. paragraph (b) has no counterpart in the Model Code. DR 7-101(B)(1) provides that a lawyer may exercise professional judgment to waive or fail to assert a right or position of the client, thus providing a counterpart of sorts to paragraph (c). DR 7-102(A)(6) & (7) provides essentially the same restrictions as those found in paragraph (d). paragraph (e) is more strongly worded than DR 2-110(C)(1)(c), which provides that a lawyer may withdraw from representation only if the client insists that the lawyer engage in illegal or prohibited conduct.
1.2:200 Creating the Client-Lawyer Relationship
¥ Primary Florida References:
FL Rule 4-1.2
¥ Background References: ABA
Model Rule 1.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:101, ALI-LGL ¤¤ 14, 18,
Wolfram ¤ 9.2
1.2:210 Formation of Client-Lawyer Relationship
When a lawyer assists a pro se litigant with the preparation of legal pleadings, an attorney-client relationship is formed, even though the attorney does not appear as attorney of record for the client. FL Eth. Op. 79-7 (Reconsideration) (Feb. 15, 2000).
1.2:220 Lawyer's Duties to Prospective Client
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1.2:230 When Representation Must Be Declined [see 1.16:200]
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1.2:240 Client-Lawyer Agreements
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1.2:250 Lawyer's Duties to Client in General
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1.2:260 Client's Duties to Lawyer
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1.2:270 Termination of Lawyer's Authority
A lawyer must withdraw when fired by the client. Florida Bar v. Vining, 721 So. 2d 1164 (Fla. 1998). In Vining, the lawyer violated Rule 4-1.2(a) when he continued representation of a client, including filing an appellate brief and participating in oral argument, even after being discharged by the client.
1.2:300 Authority to Make Decisions or Act for Client
¥ Primary Florida References: FL
Rule 4-1.2(a)
¥ Background References: ABA
Model Rule 1.2(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31.301, ALI-LGL ¤¤ 22-23,
Wolfram ¤¤ 4.4, 4.6
A lawyer violated Rule 4-1.2(a) and received a public reprimand when she sent a letter to HRS requesting that her client be given custody of all four of her children even though the lawyer knew that the client wanted custody of only two of the children. Florida Bar v. Glant, 645 So. 2d 962 (Fla. 1994). The lawyer relied on Rule 4-1.2(d) because she believed that the ex-husband was molesting the children, but there was no evidence of such molestation other than the lawyer's opinion.
A lawyer violated Rule 4-1.2(a) when he obtained an interview of his client with the television show "A Current Affair" without the client's informed consent. Florida Bar v. Niles, 644 So. 2d 504 (Fla. 1994).
1.2:310 Allocating Authority to Decide Between Client and Lawyer
A lawyer must abide by a client's decision regarding whether to accept an offer of settlement. Failure to communicate to a client a settlement offer that is not vague or unrealistic is a violation of Rule 4-1.2(a). In Florida Bar v. Hayden, 583 So. 2d 1016 (Fla. 1991), a lawyer was suspended for a violation of Rule 1.2(a). The lawyer represented the wife in a dissolution of marriage. The wife was awarded $2500 in lump sum alimony, but settled with the husband for $300. The lawyer ignored the wife's instruction not to file a motion for contempt against the husband for failure to pay the entire lump sum alimony award. The lawyer then used the contempt motion as leverage to obtain payment of his fees. The court strongly condemned the lawyer's actions:
This is not an instance of a momentary lapse or negligent action. Respondent pursued contempt proceedings in derogation of his client's wishes and after being advised that a settlement had been reached. He did so to use the legal system in an improper attempt to effectuate the recovery of his own fee. The intentional nature of respondent's conduct, coupled with the selfish motivation which prompted the filing of a frivolous proceeding, combined to make this misconduct far more egregious than a negligent act.
Id. at 1017. Accordingly, the lawyer was suspended for six months. Id. at 1018.
1.2:320 Authority Reserved to Client
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1.2:330 Authority Reserved to Lawyer
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1.2:340 Lawyer's Authority to Act for Client
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1.2:350 Lawyer's Knowledge Attributed to Client
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1.2:360 Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility
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1.2:370 Appearance Before a Tribunal
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1.2:380 Authority of Government Lawyer
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1.2:400 Lawyer's Moral Autonomy
¥ Primary Florida References:
FL Rule 4-1.2(b)
¥ Background References: ABA
Model Rule 1.2(b), Other Jurisdictions
¥ Commentary: Wolfram ¤ 10.4
No cases have been found interpreting Rule 4-1.2(b).
1.2:500 Limiting the Scope of Representation
¥ Primary Florida References: FL
Rule 4-1.2(c)
¥ Background References: ABA
Model Rule 1.2(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:301, ALI-LGL ¤ 20, Wolfram
¤ 5.6.7
Limiting the scope of representation may be especially important in limiting the scope of malpractice liability. [see 1.1:320]
1.2:510 Waiver of Client or Lawyer Duties (Limited Representation)
Where a lawyer assists a pro se litigant in the preparation of legal papers, but does not appear as attorney of record, the lawyer must explain to the client the limited scope of representation and still owes the client all duties attendant to the attorney-client relationship. FL Eth. Op. 79-7 (Reconsideration) (Feb. 15, 2000).
1.2:600 Prohibited Counseling and Assistance
¥ Primary Florida References:
FL Rule 4-1.2(d)
¥ Background References: ABA
Model Rule 1.2(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:301, ALI-LGL ¤ 105, Wolfram
¤ 13.3
Lawyers violated Rule 4-1.2 because they should have recognized that their client had a conflict of interest in acting as the personal representative of an estate, and should have either requested an attorney ad litem or moved to withdraw on the grounds of irreconcilable differences. DiDiego v. Crockett, Franklin & Chasen, P.A., 687 So. 2d 943 (Fla. 3d DCA 1997). It is a violation of Rule 4-1.2 to represent a client who has not retained the lawyer. Florida Bar v. Spann, 682 So. 2d 1070 (Fla. 1996). Lawyers must be extremely cautious when acting on behalf of clients with whom they have not met personally. In Florida Bar v. Jasperson, 625 So. 2d 459 (Fla. 1993), the court ruled that a lawyer violated Rule 4-1.2(a) when he filed a bankruptcy petition for both a husband and wife after having consulted only the wife. The lawyer had never met the husband. The court ruled that the lawyer had a duty to consult with the husband to allow him to make an informed decision regarding the bankruptcy proceeding. There was no evidence, other than the wife's assertion, that the wife was acting as the husband's agent.
1.2:610 Counseling Illegal Conduct
In Florida Bar v. Boland, 702 So. 2d 229 (Fla. 1998), a lawyer violated Rule 4-1.2(d) by counseling his client to submit an affidavit the lawyer knew to be false, to violate a custody order by taking her children "on a long vacation," and to lie to law enforcement officers and also by filing a petition for dissolution of marriage, knowing that the client failed to satisfy the six-month residency requirement for dissolution of marriage in Florida.
1.2:620 Assisting Client Fraud
In Florida Bar v. Rood, 622 So. 2d 974 (Fla. 1993), the lawyer violated Rule 4-1.2(d) by assisting a client in filing a false annual return of a guardian. It is a violation of FL Rule 4-1.2(d) for a lawyer to assist a client in a settlement arrangement in which an insurance company pays the settlement directly in to a checking account in the client's name. Such an arrangement circumvents trust accounting rules and the lawyer's duties to third parties who may have an interest in the settlement proceeds. FL Eth. Op. 00-2 (July 15, 2000).
In Florida Bar v. Brown, 2001 WL 776667 (Fla., July 12, 2001), a lawyer was found to have violated FL Rule 4-1.2(d) by assisting a client in collecting campaign contributions in excess of $500.
1.2:630 Counseling About Indeterminate or Uncertain Law
No cases or ethics opinions have been found regarding this provision of the rules.
1.2:700 Warning Client of Limitations on Representation
¥ Primary Florida References:
FL Rule 4-1.2(e)
¥ Background References: ABA
Model Rule 1.2(e), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:307, ALI-LGL ¤ 105
[See 1.2:500]
1.2:800 Identifying to Whom a Lawyer Owes Duties
¥ Primary Florida References:
FL Rule 4-1.2
¥ Background References: ABA
Model Rule 1.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 31:101, ALI-LGL ¤ 105, Wolfram
¤ 7.2
1.2:810 Prospective Clients [see 1.2:220]
1.2:820 Persons Paying for Representation of Another [see 1.7:400]
1.2:830 Representing an Entity [see 1.13:200]
1.2:840 Representing a Fiduciary [see also 1.13:520]
1.2:850 Class Action Clients
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