Going back to the question we asked in the title of today's blog post, the answer is yes. Legally, you can have a family member, a friend of the family, or even yourself as the primary representative in your case. However, having a family member who represents you who is not a lawyer would not be much different from having a lawyer. While you can trust this person a little more, Dan is a lawyer who doesn't do him much good in the long run.
We have already talked about how specific knowledge of family law is fundamental in a family law case. The second part is that we've already covered how meeting with an attorney in person can make it more comfortable to hire an attorney, and we're going to put you in a position where you're more likely to. The answers to the following frequently asked questions are necessarily general in nature. Attorneys facing similar problems should consult the above authorities.
In citations, “Rule” or “Rules” refers to the Rules governing the Florida Bar and “Opinion” or “Opinions” refers to the Formal Advisory Opinions of the Professional Ethics Committee of the Florida Bar Association. The Rules Governing the Florida Bar Association and the Formal Advisory Opinions of the Professional Ethics Committee of the Florida Bar Association are posted on the website under “Rules Governing the Florida Bar Association”. Since the focus of discovery is legitimate seeking information rather than strategic confrontation, lawyers should not train deponents by objecting, commenting, or acting in any way that suggests a particular answer to a question. Nor should lawyers object for the purpose of disturbing or distracting the interrogator or witness.
Objections should only be made in the manner and for the reasons provided for by applicable court rules. Attorneys should not intentionally misstate facts, prior statements, or testimony. This behavior increases animosity without a legitimate purpose. Lawyers would not be human without personal beliefs on issues affecting family law practice.
No lawyer should be expected to ignore firmly held beliefs. But the marriage lawyer can only limit the objectives of the representation if the client consents after the consultation, 34 The client even has the right to be consulted on the means by which the objectives are pursued, matters usually at the discretion of the lawyer, 35 The lawyer must therefore withdraw from representation if personal, moral, or religious beliefs are likely to cause the lawyer to take steps that are not in the best interest of the client. If there is any doubt about the possible effect of such beliefs on representation, the client should be consulted and consent obtained. Where the rate agreement is based on an hourly rate or similar agreement, this information is part of the necessary communications related to the case addressed in Objective 2.3 and the Commentary.
The statement must be detailed enough to inform the customer of the basis of the charges incurred. The lawyer should consider whether the client's position on children's issues is affirmed in good faith. Otherwise, the lawyer must inform the client of the detrimental consequences of a merit claim for the client, the child, and the client's spouse. If the client persists in seeking advice to build a false case or to use a paternity claim as a bargaining chip or a means of inflicting revenge (see Objective 6.2 and Commentary), the lawyer should withdraw.
First, an attorney must zealously represent his client. To do that, you must feel that you have all the facts to your best knowledge and belief. People in difficult situations often feel ashamed or afraid to let the truth spread. However, when it comes to a family member, those details are even less present.
Think about it, who wants to tell their brother all the inner secrets of the marriage that is now falling apart? It can be an unpleasant situation, but most people withhold some of the dirty laundry. This puts a lawyer at a disadvantage when trying to represent her client. How can the law apply to a client's set of facts when they don't have the right set of facts?. Loyalty to a current customer prohibits making representations directly adverse to that customer without that customer's informed consent.
Therefore, without consent, a lawyer cannot act as an advocate in a matter against a person that the lawyer represents in another matter, even when the matters are not related at all. The client to whom the representation is directly adverse is likely to feel betrayed, and the resulting damage to the client-lawyer relationship is likely to impair the lawyer's ability to represent the client effectively. In addition, the client on whose behalf the adverse representation is being conducted may reasonably fear that the lawyer will pursue that client's case less effectively out of deference to the other client, that is,. Similarly, a directly adverse conflict can arise when an attorney is required to question a client who appears as a witness in a lawsuit involving another client, such as when the testimony will harm the client who is represented in the lawsuit.
On the other hand, the simultaneous representation in unrelated matters of clients whose interests are only economically adverse, such as the representation of competing economic companies in unrelated litigation, normally does not constitute a conflict of interest and, therefore, may not require the consent of the client respective. Directly adverse conflicts can also arise in transactional matters. For example, if a lawyer is asked to represent the seller of a company in negotiations with a buyer represented by the lawyer, not in the same transaction but in another unrelated matter, the lawyer would not be able to perform the representation without the informed consent of each client. Even where there are no direct warnings, there is a conflict of interest if there is a significant risk that a lawyer's ability to consider, recommend, or conduct an appropriate course of action for the client will be materially limited as a result of the lawyer's other responsibilities or interests.
For example, a lawyer who is asked to represent several individuals seeking to form a joint venture is likely to have material limitations on the lawyer's ability to recommend or defend all possible positions each may take because of the lawyer's duty of loyalty to others. The current conflict excludes alternatives that would otherwise be available to the customer. The mere possibility of subsequent harm does not in and of itself require disclosure and consent. Critical questions are the likelihood of a difference in interest occurring and, if it does, whether it will materially interfere with the lawyer's independent professional judgment in considering alternatives or exclude courses of action that should reasonably be pursued on behalf of the client.
In addition to conflicts with other current clients, a lawyer's duties of loyalty and independence may be materially limited by liabilities to former clients under Rule 1.9 or by the lawyer's responsibilities to other persons, such as fiduciary duties arising from the service of an attorney as trustee, executor or corporate director. The lawyer's own interests should not be allowed to have an adverse effect on the representation of a client. For example, if the probity of a lawyer's own conduct in a transaction is seriously questioned, it can be difficult or impossible for the lawyer to give detached advice to a client. Similarly, when a lawyer has discussions about possible employment with an opponent of the lawyer's client, or with a law firm representing the opponent, such discussions could materially limit the representation of the client's lawyer.
In addition, a lawyer may not allow related business interests to affect representation, for example, by referring clients to a company in which the lawyer has an undisclosed financial interest. See Rule 1.8 for specific rules related to a range of personal conflicts of interest, including business transactions with customers. See also Rule 1.10 (personal conflicts of interest under Rule 1.7 are not normally imputed to other lawyers in a law firm). A lawyer is prohibited from engaging in sexual relations with a client unless the sexual relationship predates the formation of the client-lawyer relationship.
A lawyer may receive payment from a source other than the client, including a co-client, if the client is informed of that fact and consents and the agreement does not compromise the lawyer's duty of loyalty or independent judgment to the client. If acceptance of payment from any other source presents a significant risk that the representation of the client's attorney will be materially limited by the lawyer's own interest in accommodating the person paying the attorney's fees or by the lawyer's responsibilities to a payer who is also a co-client, then the lawyer must comply with the requirements of paragraph (b) before accepting representation, including determining whether the conflict is consensual and, if so, that the client has adequate information about the material risks of the representation. Clients can generally consent to representation regardless of a conflict. However, as stated in paragraph (b), some conflicts are not consentable, meaning that the lawyer involved cannot properly request such an agreement or provide representation based on the client's consent.
When the lawyer represents more than one client, the issue of consentability must be resolved for each client. Consentability is generally determined by considering whether clients' interests will be adequately protected if they are allowed to give informed consent to representation burdened by a conflict of interest. Therefore, under paragraph (b) (), representation is prohibited if, in the circumstances, counsel cannot reasonably conclude that counsel will be able to provide competent and diligent representation. See Rule 1.1 (jurisdiction) and Rule 1.3 (due diligence).
Paragraph (b) (describes conflicts that cannot be consented to because representation is prohibited by applicable law). For example, in some states, substantive law states that the same lawyer cannot represent more than one defendant in a capital case, even with the consent of clients, and under federal criminal statutes, certain representations of a former government lawyer are prohibited, despite the informed consent of the former client. In addition, decision-making law in some states limits the ability of a government client, such as a municipality, to consent to a conflict of interest. Paragraph (b) () describes conflicts that are not consensual due to institutional interest in vigorously developing each client's position when clients are directly aligned with each other in the same litigation or other court proceeding.
If clients are directly aligned with each other within the meaning of this paragraph requires an examination of the context of the procedure. Although this paragraph does not preclude multiple representation by counsel of parties unfavorable to mediation (because mediation is not a proceeding before a court under Rule 1.0 (m)), such representation may be excluded by paragraph (b) (. In some circumstances, it may be impossible to make disclosure necessary to obtain consent. For example, when the lawyer represents different clients in related matters and one of the clients refuses to consent to the disclosure necessary to allow the other client to make an informed decision, the lawyer cannot properly ask him to give consent.
In some cases, the alternative to common representation may be that each party has to obtain separate representation with the possibility of incurring additional costs. These costs, along with the benefits of securing separate representation, are factors that the affected client may consider in determining whether common representation is in the interest of the client. When more than one client is involved, whether the lawyer can continue to represent any of the clients is determined both by the lawyer's ability to fulfill the obligations owed to the former client and by the lawyer's ability to adequately represent the remaining client or clients, given the lawyer's duties. with respect to former customer.
An attorney may be required to prepare wills for several family members, such as husband and wife, and, depending on the circumstances, there may be a conflict of interest. A lawyer should offer advice to a family law client when doing so seems to be in the client's best interest. It is essential that family lawyers have sufficient knowledge of dispute resolution to understand the advantages and disadvantages for a particular client and to advise the client appropriately regarding the particular dispute resolution mechanism selected. To comply with conflict of interest rules, the lawyer must make clear the lawyer's relationship with the parties involved.
A family lawyer who is not sure of his authority, or who simply does not believe that another lawyer has the right to know such information, must sincerely disclose his uncertainty or declare that he does not want or cannot respond at all. While participating in efforts on behalf of the client, the family lawyer may also be convinced that the client or a person with whom the client has a relationship has abused one of the children. If there is a material risk that the dual function compromises the lawyer's independence of professional judgment, the lawyer should not act as director or should stop acting as the corporation's attorney when conflicts of interest arise. A lawyer may be considered “lawyer's” if he has a regular and ongoing relationship with an attorney or firm in a capacity other than that of a partner or associate.
All family lawyers must be knowledgeable enough to recognize potential problems in the myriad legal areas relevant to representation. The lawyer should recommend consulting a professional in another field when it is something that a reasonably competent lawyer would recommend. The lawyer should, at the beginning of common representation and as part of the process of obtaining the informed consent of each client, inform each client that the information will be shared and that the lawyer will have to withdraw if a client decides that any matter important to the representation should be retained. of the other.
It is important that the family lawyer accurately and thoroughly advise the client and, if necessary, provide him with a negative evaluation of the case. If you have a question about a last family situation, seek representation in a family loss scenario, or need someone to talk to about a legal matter related to family law. . .
