FBBE Florida Professional Responsibility Questions and Answers — Questions and Answers
Question 1: An attorney represents a client in a complex civil litigation matter. During a deposition, the client knowingly makes a false statement about a material fact. The attorney realizes the statement is false immediately after the client makes it, as it contradicts documents the client previously provided. What is the attorney's primary duty under the Florida Rules of Professional Conduct?
- To immediately inform the opposing counsel and the court reporter that the client has committed perjury.
- To take reasonable remedial measures, which includes first urging the client to correct the false statement. (Correct answer)
- To protect client confidentiality above all else and address the matter privately with the client after the deposition concludes.
- To immediately withdraw from the representation without disclosing the reason to the court or opposing counsel.
Correct answer: To take reasonable remedial measures, which includes first urging the client to correct the false statement.
Under Florida Rule of Professional Conduct 4-3.3, a lawyer has a duty of candor toward the tribunal. If a lawyer knows that their client has offered material evidence that is false, the lawyer must take reasonable remedial measures. This duty applies to ancillary proceedings like depositions. The first step is typically to remonstrate with the client and urge them to correct the false testimony. If the client refuses, the lawyer's duty of candor may require disclosure to the tribunal, even if it means revealing confidential information. Simply withdrawing or staying silent is insufficient to remedy the fraud on the court.
Question 2: A Florida attorney wants to send a direct mail solicitation letter to a potential client who was recently involved in a widely publicized car accident. According to the Florida Bar rules governing attorney advertising and solicitation, which of the following actions is permissible?
- Sending the letter 15 days after the accident occurred.
- Having a paralegal call the potential client 35 days after the accident to follow up on the letter.
- Sending a written communication marked "ADVERTISEMENT" in a conspicuous place on the envelope and letter 31 days after the accident. (Correct answer)
- Sending an email with the subject line "Urgent Legal Matter" 31 days after the accident.
Correct answer: Sending a written communication marked "ADVERTISEMENT" in a conspicuous place on the envelope and letter 31 days after the accident.
Florida Rule of Professional Conduct 4-7.18(b) prohibits lawyers from sending written solicitations to prospective clients concerning an action for personal injury or wrongful death unless the accident or disaster occurred more than 30 days prior to the mailing. The rule also requires the communication to be marked as an "Advertisement." In-person or live telephone contact is generally prohibited if a significant motive is pecuniary gain. Emails must have a subject line that begins with "Advertisement."
Question 3: An attorney in Florida maintains a pooled Interest on Trust Accounts (IOTA) account for holding client funds that are nominal in amount or expected to be held for a short period. Which of the following statements about the IOTA account is correct?
- Participation in the IOTA program is voluntary for attorneys.
- The attorney may keep a reasonable amount of their own funds in the IOTA account to cover bank service charges. (Correct answer)
- The interest generated on the IOTA account is paid directly to the clients whose funds are held in the account.
- The attorney must obtain written consent from each client before placing their nominal funds into a pooled IOTA account.
Correct answer: The attorney may keep a reasonable amount of their own funds in the IOTA account to cover bank service charges.
According to Florida Bar Rule 5-1.1, all nominal or short-term client funds must be deposited into an IOTA account. While a lawyer may not generally commingle their own money with client funds, an exception allows the lawyer to deposit their own funds in a client trust account for the sole purpose of paying bank service charges on that account, in an amount reasonably sufficient for that purpose. The interest from IOTA accounts is remitted to The Florida Bar Foundation to fund legal aid programs, not to the clients. Participation is mandatory for attorneys handling such funds, and specific client consent for IOTA placement is not required.
Question 4: A lawyer represented a real estate development company for two years, advising them on zoning regulations for a large commercial project. The representation ended amicably. One year later, a homeowners' association (HOA) asks the same lawyer to represent them in a lawsuit against the development company, alleging that the company's construction methods on that same project violated local ordinances and created a nuisance. What is the lawyer's ethical obligation?
- The lawyer may accept the representation of the HOA without consulting the former client because the prior work was transactional (zoning) and the new matter is litigation (nuisance).
- The lawyer must decline the representation because a lawyer may never represent a new client against a former client.
- The lawyer may only accept the representation of the HOA if the development company gives informed consent, confirmed in writing. (Correct answer)
- The lawyer may accept the representation of the HOA as long as one full year has passed since the prior representation ended.
Correct answer: The lawyer may only accept the representation of the HOA if the development company gives informed consent, confirmed in writing.
Under Florida Rule of Professional Conduct 4-1.9, a lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client. Here, the matters are substantially related as they both involve the same commercial project. The HOA's interests are materially adverse to the developer's. Therefore, the lawyer is prohibited from taking the case unless the former client (the development company) gives informed consent, confirmed in writing.
Question 5: Which of the following is a mandatory requirement for a contingency fee agreement in a Florida personal injury case?
- The agreement must be verbally explained to the client in the presence of a witness.
- It must include a provision for mandatory arbitration of fee disputes.
- The agreement must be in writing and signed by the client and the attorney. (Correct answer)
- The attorney's fee must be set at a flat 40% of the gross recovery.
Correct answer: The agreement must be in writing and signed by the client and the attorney.
Under Rule 4-1.5(f), all contingency fee agreements in Florida must be in writing and signed by the client and every participating lawyer or law firm. The agreement must also contain the Statement of Client's Rights. While arbitration clauses are permitted, they are not mandatory and require specific disclosures. Florida's rules set maximum percentage tiers for fees, which are not a flat 40%; for example, the fee is generally limited to 33 1/3% for recoveries up to $1 million if settled before a lawsuit is filed.
Question 6: A Florida attorney's television advertisement features a dramatic reenactment of a car accident followed by a former client stating, 'This law firm is the absolute best in Florida and got me a huge settlement!' The advertisement does not include the law firm's physical address. Which aspect of this advertisement most clearly violates Florida's advertising rules?
- The failure to state that results are not guaranteed for every case.
- Using a former client to provide a testimonial.
- Claiming to be the 'best' and failing to include a bona fide office location. (Correct answer)
- Featuring a reenactment of an accident.
Correct answer: Claiming to be the 'best' and failing to include a bona fide office location.
Florida's advertising rules contain several requirements. First, all advertisements must disclose the city, town, or county of at least one bona fide office location of the lawyer who will perform the services. Second, Rule 4-7.13 prohibits communications that are deceptive or inherently misleading, which includes statements that are not objectively verifiable. Describing the firm as the 'best' is a subjective claim that cannot be factually substantiated and is thus prohibited. While reenactments and testimonials are permitted, they are subject to specific disclaimer requirements, but the failure to include a location and the use of a non-verifiable superlative are direct violations.
FBBE Florida Professional Responsibility Questions and Answers
An attorney represents a client in a complex civil litigation matter.
During a deposition, the client knowingly makes a false statement about a material fact.
The attorney realizes the statement is false immediately after the client makes it, as it contradicts documents the client previously provided.
What is the attorney's primary duty under the Florida Rules of Professional Conduct?