Business Law 101 / Rules of Professional Conduct

By Albert L. Kelley, Esq.

Not all attorneys are required to be licensed in their states. To practice in the State Court system (including County, Circuit, Appellate or Supreme Courts), an attorney must either be a member of the state Bar or must apply for special permission to make a special appearance in a state court matter. However, in some jurisdictions, attorneys who practice strictly Federal law matters, such as tax law, immigration, or bankruptcy, only need to be members of the Federal Bar, not necessarily the State Bar. Likewise, an attorney who only handles state court matters does not need a federal license. In-house corporate counsel are exempt from state Bar membership if their position is strictly an advisory, negotiating or drafting position- they may not make appearances in Court for the corporation. Also, law school professors are not required to be licensed by the state Bar.

The Florida Bar has adopted Rules which govern all lawyers licensed through the Florida Bar. This list of rules is quite extensive (nearly 100 pages long) and covers a multitude of areas. The portion that is of most interest to the general public, however, is Chapter 4-The Rules of Professional Conduct. Chapter 4 of the Florida Bar Rules makes up one-third of all the rules (There are a total of 20 Chapters). These rules tell lawyers what they are allowed to do, what they must do, and what they must not do. Unfortunately, the rules, like much legislation, can be vague and must be interpreted in many situations. For this reason, the Florida Bar has established an Ethics Hotline phone number where lawyers can call anonymously and obtain advice on whether their conduct is within the rules.

It would take weeks to discuss all of the various rules, but the one that seems to occur more than others is the conflict of interest. Under the Florida Rules, a lawyer may not represent a party if that representation will be directly against the interests of another client, unless the lawyer reasonably believes the representation will not adversely affect the lawyer’s responsibility and the clients waive the conflict after being consulted about it. What this means is that there is no conflict simply because a lawyer represents two people in the same type of business (as an example, there is no conflict just because a lawyer represents two Italian restaurants in the same neighborhood). In addition, it is not a violation of the rules for a lawyer to file a lawsuit against a person they have previously represented, if they are not using special information they obtained in the prior representation. If the new lawsuit involves a separate issue from the prior representation, there is not likely to be a conflict.

Another place a conflict can arise is in the corporate setting. The Florida Bar Rules state that a corporate attorney may represent the individual shareholders, however, if the corporations consent is required, it must be given by an officer or director of the company other than the one seeking his representation. This is of crucial importance when a majority shareholder seeks to use the corporate counsel to act in their best interest, but against the best interest of the minority shareholder.

When a client feels a lawyer has violated one of the rules of professional conduct, a complaint may be filed with the Florida Bar. The Florida Bar takes its investigations seriously.

Al Kelley is a Florida business law attorney located in Key West and previously taught business law, personnel law and labor law at St. Leo University. He is also the author of “Basics of Business Law” “Basics of Florida’s Small Claims Court” and “Basics of Florida’s Landlord-Tenant Law” (Absolutely Amazing e-Books). This article is being offered as a public service and is not intended to provide specific legal advice. If you have any questions about legal issues, you should confer with a licensed Florida attorney.

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