instructions in the attached file
10
Case Briefs
Professional Ethics
PLA 3703 - CRN 50987
Alissa Dorce
Professor Robert Diotalevi
Doe v. Condon 295 So 2d 18 (Fla. Dist. Ct. App. 1988)
Bates v. state bar of Arizona 555 So 2d 640 (Fla. Dist. Ct. App. 1976)
Enron Corp v. Arthur Andersen 256 So 2d 745(Fla. Dist. Ct. App. 2001)
Ni Yulan v. the State 106 So 1d 12 (Fla. Dist. Ct. App.2015)
Feist v. Paxfire 804 So.3d 707 (Fla. Dist. Ct. App. 2015)
John DOE, Alias, Petitioner,
v.
Charles M. CONDON, Respondent.
Doe v. Condon 295 So 2d 18 (Fla. Dist. Ct. App. 1988)
Procedural history
In a case submitted to the South Carolina supreme court by Doe v. Condon, the court gave a deep meaning to the practice of law (Kern-Fuller., 2002). Doe argued that an attorney who interacts with the clients over the internet by giving advice or one who provides seminars for the new clients is practicing law. In addition, Doe says that attorneys should form relationships with clients that they advise. In the south Calorina supreme court, a paralegal was set to determine the viability of these proposals and whether they contributed to the constitutional practice of law. Three issues were presented by the paralegal to determine the ethical practices of these opinions (Fla. 1st DCA 1988).
Facts
According to the jurisdictional practice of law, an attorney should not violate the jurisdiction while practicing the law. Additionally, an attorney who is not legally binding to the jurisdiction should not be involved in any relationships or advising the client. The paralegal posed a question on the legibility and legality of a nonlawyer who interacts with the public through seminars without an attorney (Fla. 4th DCA 1988). He then asked whether a nonlawyer meeting with clients in private offices without an attorney is illegal. Additionally, he asked whether paralegals can share profits with legal firms depending on the number of cases handled. In all these scenarios, the supreme court ruled that they were unauthorized law practices.
Issues
Whether the legality and legibility of a nonlawyer who interacts with the public is perceived.
Whether a meeting between a nonlawyer and a client in a private office is legal.
Whether paralegals are able to share profits with legal firms.
The rule of law
In Doe’s case, the court disallowed situations where nonlawyers or paralegals conduct seminars or advice to the public because it is unethical and unauthorized law practice. In doing this, the court prohibited and limited any performance of activities that are related to law by unauthorized and unlicensed lawyers. It has also provided a precaution to lawyers who give advice online to be more careful when practicing law over the internet. Additionally, the court expressed the need to have the client be provided with the correct answers to their questions during seminars and advice sessions. Specialization and knowledge of the law are necessary when providing answers to these questions. However, lawyers who don’t provide misleading information can conduct seminars online (Fla. 4th DCA 1988). The court also protected and minimized the chances of having conflicts and malpractices due to self-interests that might arise in seminars and giving advice. The lawyer should not practice solicitation as a way of doing business. With the presence of an attorney, the court believes that correct answers can be provided to clients. Regarding online advice applications, many cases can arise due to the administration of law through cyberspaces and web pages. To protect the clients from misleading information, the court prohibited the use of online advice by paralegals.
Decision
For the first two scenarios, the court gave a ruling that interaction with clients through advice or seminars cannot be performed without attorneys to supervise. In the third scenario, the court ruled that sharing profits between a nonlawyer and a lawyer is illegal. The supreme court of Carolina limits law practices to attorneys who are licensed as a way of protecting the public
Legal Reasoning
The Carolina supreme court rulings on what comprises law practices should not be interpreted as a way of making it a necessity to have attorneys whenever presenting law practices or seminars online. If the court has not given clarifications on the use of online web pages to give law practices, lawyers should not provide seminars or advice using this approach. Instead, they should avoid answering questions concerning law practices online. If a lawyer wants to perform business solicit using this approach, it is necessary to consult so that they may not end up using unauthorized law practice.
John R. Bates, Appellant,
v.
Van O'Steen, Appellant.
Bates v. state bar of Arizona 555 So 2d 640 (Fla. Dist. Ct. App. 1976)
Procedural history
In the case of Bates v. state bar of Arizona, the Supreme Court of the United States ruled that legal services were violated. Attorneys are usually confused by this amendment of the law practice, and the court provided its rule in this case. Bates and O'steen were legal operators of a clinic in Arizona (Fla. 2nd DCA 1976). As a way of creating business, they advertised a statement asking whether there was anyone in need of legal services at a reasonable fee on divorce or regal separation. The two lawyers went contrary to article 29 of the legal practices of the United States supreme court. After realizing what they had done, they appealed their case in the state's court. They argued that the ruling violated the Sherman Act and their right to speech. The court refused the argument by stating that advertisements by lawyers are banned. Two issues were raised;
Facts
The supreme court used a previous judgment to rule on this case. Using Parker v. Brown, the court ruled that the prohibition of the Sherman Act is a government act. The court ruled that Arizona is one of the bodies through which power is exercised by the government. On the issue of losing professionalism in advertisement raised by the bar, the court ruled that it would lead to commercialism between the attorney and the client, and therefore it was not a legal practice. Putting across the financial terms in advertisements is unethical in law practices, and therefore attorneys are required to provide information about the commercial solicit. The court also ruled that the message was misleading to the members of the public and was unethical. The right of consumers to receive correct information led the court to judge that the advertisements and solicitations would lead to a violation of consumer rights (Fla. 4th DCA 1976).
Rule of Law
The application of this case is that the case aims to protect every person's rights in receiving legal law practices. Making advertisements and solicitations would make it appear as if the law has failed in providing services to the public. Most people may fear getting legal services at high costs from advertisements, which is a failure that the court wanted to protect. Legal advertisements should not be meant for personal gain but should consider the interests of the public. It is not right to mislead the people, and therefore the court needed to enforce the importance of the provision of quality education through advertisements and not commercial interests.
Issues
1) whether the banning of advertisements by lawyers violates the Sherman act.
2) whether the first amendment is affected by this ban.
Decision
The court supported the idea that legal advertisements could be used to promote customer satisfaction. This is through the use of adverts to provide a message on the reduction of prices for the well-being of the public. The court also argued that lawyers are honest, but those who might not be required to be monitored by others.
Legal reasoning
In conclusion, the court cannot limit or prohibit truthful and legal advertisements. However, if the information is misleading or deceptive, the court would ban it. On the other hand, illegal transactions violate the rights of the people. Solicitation and advertising are controversies that cannot be ignored. It is the responsibility of lawyers to educate the public by showing respect and recognition to the public members. Consumers have the right to know and understand what is being advertised, and according to the law, advertisement is a service to both the consumer and the lawyer (Fla. 2nd DCA 1976).
Arthur Andersen, complainant,
v.
Enron Corp, Respondent.
Enron Corp v. Arthur Andersen 256 So 2d 745(Fla. Dist. Ct. App. 2001)
Procedural history
This agency problem led to the collapse of one of the largest companies in the United States, termed the Enron scandal. Enron company in the year 2001 was declared bankruptcy when the investigation revealed that the companies leaders had been involved in using special purpose vehicles and market-to-market accounting to hide their losses (Fla. 2nd DCA 2001). This made the company appear as if it had been financed, but it had already collapsed in the real sense. The board members had a responsibility to protect the company, but they chose their interests over the company's interests. Some of the top leaders in this scandal were arrested and imprisoned.
Facts
Conflict of interest is when an individual is unable to differentiate between the personal and business interest, and they end up crashing, and the individual becomes unreliable. This conflict can happen when an individual or a company has a person's interest in the relationship, money, reputation, or status, which can make their judgments, actions, and decisions unbiased. If this happens, the individual should remove himself from the responsibility, which is a legal requirement. In a business, conflict of interest occurs when an individual puts his interest before the professional work given by the employer. It can also occur when individuals exploit their duties and position for their interests and gains over their company duty (Fla. 2nd DCA 2001).
Issue
Whether corporate bankruptcy has an effect on employees.
The rule of law
Fiduciary duty is duties that every corporate member of the board of management in a company has. They also have the duty of loyalty to oversee the company activities. If any member of the board of management chooses to decide on his interest, then he will be destroying the company in terms of conflict of interest (Fla. 1st DCA 2001). For example, a board member who is a member of an insurance company comes up with a suggestion to lower the premiums for companies owning trucks, but he owns a truck company. This will be considered a conflict of interest because even if he is a member and he deserves to make suggestions, the lowering of the premium will benefit his interest.
Decision
Enron’s Company was declared bankrupt.
Legal Reasoning
In conclusion, self-interest leads to conflicts between various parties. Lawyers should use their knowledge and legal procedures to prevent these conflicts. This by ensuring that there is no biasness when making decisions. Taking advantage of the relationship between people might result in conflicts as people try to fight favoritism that might occur when decisions are being made. In legal practices, lawyers should prevent conflicts of any kind from happening. They should consider the interests of everyone and not the interests of a few people in an organization. The law applies to all equally and thus reduces conflicts.
Ni Yulan, complainant,
v.
U.S. Department of State, Respondent.
Ni Yulan v. the state 106 So 1d 12 (Fla. Dist. Ct. App.2015)
Procedural History
A lawyer in China helped her neighbors who had been evicted and their houses demolished. She wanted to show the people who demolished the houses through photography. The woman was arrested, and the police beat her and broke her legs consistently, also left her to die (Fla. 2nd DCA 2015). She was sentenced to prison for three years. While she was serving her years in prison, police urinated on her face, and they even made her crawl by taking her crutches away, leaving her in pain. They disbarred her, but she had no fear because she continued with her investigation and was arrested the second time after her release.
Facts
Practicing attorneys use legal ethics as the rules which govern their behavior. The objective of these rules is to ensure integrity when conducting the legal profession and to show the roles of a lawyer to their clients and the legal governance. The requirements of legal ethics are formed from the norms that are used in the legal profession. The American Bar Association Model Rules of professional ethics is a source of legal ethics in the United States (Fla. 3rd DCA 2015). The legal profession is self-governing because of its uniqueness in the combination of the process of law and governance enforcement and the profession. In courts, the legal profession is largely manifested through authority because of the connection they share. This regulatory governance is shown if the lawyer meets their duties and obligation in their profession. The government cannot dominate if the lawyer has self-regulation, which helps them to maintain their legal profession independence. It is very important for a lawyer to know their rights and be independent to avoid the government's abuse of power.
Issue
Whether lawyers and attorneys have legal rights in governance
Rule of law
The rules governing the regulations of the lawyers in their profession are very fair to protect their rights and society. If the government regulations are minimized, the lawyers can represent the society to the court because they can challenge the validity of the information given by the government. The lawyers can defend clients who are charged by the state. These restrictions are sometimes important to the government but very limiting to the lawyers. For example, in China, the government of China tends to punish lawyers who stand for others in court. The government of China in July 2015 arrested almost 200 lawyers who were advocates of human rights through a launched sweep nationwide, calling them swindlers (Fla. 2nd DCA 2015).
Decision
The lawyers were put in prisons of unknown locations, and some were sentenced to jail for many years.
Legal Reasoning
This case shows the restrictions on the legal profession of lawyers in China. These restrictions can be harmful to the lawyers because they cannot fight for their rights. The restrictions should be self-governing for the lawyers to avoid government domination. This example shows what the government can do to the legal profession if they try to go against the government. In America, lawyers are controlled and regulated by the government, and others are not government regulators, but they have a fair level of independence.
BETSY FEIST, Plaintiff,
v.
PAXFIRE, INC, Defendant.
Feist v. Paxfire 804 So.3d 707 (Fla. Dist. Ct. App. 2015)
Procedural History
Negligence of lawyers and attorneys leads to a lack of competence when handling cases. An example of a case on negligence and competence is that of Feist v. Paxfire. In this case, Feist accused Paxfire of violating the Wiretap Act. Paxfire erased Ms. Feist's internet history, and when asked, she said that the history was not significant. She said that she used software to clean the history searches from the internet, which she regularly did (Fla. 2nd DCA 2015). She claimed that she failed to preserve the information because she was not asked to do so. The court ruled that the use of cleaning software by Feist was not reasonable. However, the Feist court also ruled that the problem arose because Ms. Feist was unsure of the need to have the browsing history, and this was through wrong counsel. This, therefore, was not a violation of the Wiretap Act. In this case, the negligence of the attorney is the one that led to these problems.
Facts
According to the rule, the attorney should avoid events that would lead to negligence and incompetencies. The attorney and the lawyers are subject to giving the right counsel to the people. Violation through negligence leads to solving cases without using legal practices. Mostly, attorneys solve cases through personal interests, thus leading to negligence and incompetence. The law requires all the attorneys to avoid giving bad counsel in cases involving spoliation. Additionally, being legally licensed to practice law in reasonable terms, attorneys are subject to competency in any case that they solve. The recent law amendments require the attorney and lawyers to preserve competency and avoid negligence in solving cases (Fla. 4th DCA 2015).
Issues
Weather the cleaning of internet history violates Wiretap Act
Weather the failure of concern of Ms. Feist resulted from bad counsel
Rule of Law
As an application, the court provides this ruling to prevent the occurrence of spoliations as a result of negligence and incompetence of the attorneys and lawyers. In recent days, lawyers might be incompetent to satisfy their self-interests. As a result, they might fail to use knowledge and skills in solving cases, thus leading to competency. Lawyers who practice negligence and incompetence might be held accountable for their actions, and this is what they should avoid. Giving wrong advice to clients is a form of incompetency that the court is trying to prevent by amending the existing law. However, clients might end up violating the law to make it look like it was the mistake of the attorney, and this leads to malpractice. As a way of preserving the jurisdiction of the law, the court has put in place some measures that make the attorney and the lawyers practice competence and avoid negligence. To limit the chances of misconduct and malpractices, the court has set aside procedures that require attorneys to be submissive and apply competence, thus minimizing the chances of misleading the public. To enhance effectiveness, the court has used the amendments to curb negligence and incompetence (Fla. 1st DCA 2015).
Decision
The court ruled that the use of cleaning software by Feist was not reasonable.
Legal Reasoning
In conclusion, attorneys are required to provide the necessary advice to clients. By disclosing laws that should guide the attorney, the court ensures that the interests of the client are considered. The court made amendments to the existing law to include clauses that would help in ensuring that attorneys are competent. Negligence of the attorneys is one of the things that would lead to issues that might lead to a poor solution to cases. To enhance ethical and legal practices, attorneys and lawyers are trained to be competent in everything they do.
