No Dirty Tricks: How the Florida Bar’s Ethics Rules Shape the Ideal Lawyer
Work with the Wagner, McLaughlin & Whittemore attorneys who understand and implement the Florida Bar Ethics Rules.
When some litigants describe their ideal lawyer, they picture a “bulldog” attorney who will fight a no-holds-barred, guerrilla-type campaign designed to flatten the other party and leave them begging for mercy. Some litigants believe that, to be truly effective, lawyers must whip out an arsenal of tricks to bully the other side into submission.
The reality, fortunately, is that rules of the Florida Bar – together with other bar associations across the country – actively prohibit just this type of unfair legal practice.
Florida Bar Rule 4-8.4(d) directs that a lawyer shall not:
[E]ngage in conduct in connection with the practice of law that is prejudicial to the administration of justice, including to knowingly, or through callous indifference, disparage, humiliate, or discriminate against litigants, jurors, witnesses, court personnel, or other lawyers on any basis, including, but not limited to, on account of race, ethnicity, gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, or physical characteristic.
This rule has been used both broadly and specifically, and it serves to curb any tendency within the legal community towards harassment, bullying, or other dirty tricks. Rule 4-8.4(d) has been used, for example, to discipline a lawyer who frivolously reported the other party to the U.S. Attorney merely in an effort to intimidate her. Other attorneys have been disciplined under this rule for dishonest conduct surrounding their decisions to leave their old firms and take clients with them. Yet another attorney was disciplined because his inability to work with other attorneys delayed the administration of justice and increased the costs to his client.
Though it can be tempting to want to employ an attorney who works harder to get around the law than to obey it, most clients find that, in the end, such a lawyer is less effective at achieving the desired result. What is best is to seek an attorney who understands the laws relating to your case as well as the rules of ethics, through his or her long experience practicing to uphold them.
At Wagner, McLaughlin & Whittemore, we strive to zealously and ethically represent our clients and to gain them every benefit allowed by the law. Because we understand the law and the rules that govern the legal practice, we can spend our time correctly applying the law to your case. If you have need of a personal injury, medical malpractice, or legal malpractice attorney in the Tampa, Florida area, contact us today for a free consultation.
Consider carefully
Florida law allows parties in a lawsuit to make Offers of Judgment in advance of trial, which can have a significant impact on the case. It is important to know how Offers of Judgment operate so that you can make a reasoned and informed decision about whether to make an Offer of Judgment yourself and whether to accept one offered by the other side.
Briefly, an Offer of Judgment includes the entire amount sought as a fair verdict award by the party making the offer. If it is rejected and the verdict heavily favors the side that made the offer, the losing party may have to pay a part or all of the prevailing party’s attorney’s fees.
Consider the following hypothetical:
In an auto-accident case, the plaintiff claims that the total damages she suffered amount to $150,000, but she is willing to settle for $100,000 to avoid court. Meanwhile, the defendant claims that the plaintiff’s damages were only around $70,000, and that she contributed equally to the accident, so his share should only be $35,000. He’s willing to settle the case for $50,000 to avoid trial.
Imagine that the plaintiff makes an Offer of Judgment for $100,000 and it is not accepted within thirty days. The case ends up going to trial and the court awards the plaintiff $125,000, an amount that is 25% greater than the amount requested in the Offer of Judgment. The defendant may now be required to pay reasonable costs and attorney’s fees incurred by the plaintiff after the Offer of Judgment was served.
Now imagine instead that the defendant makes an Offer of Judgment for $50,000 which is not accepted by the plaintiff within thirty days. At trial, the court awards the plaintiff only $37,500, an amount 25% less than the defendant’s Offer of Judgment. Now it is the plaintiff who may be required to pay the defendant’s reasonable costs and attorney’s fees incurred by the defendant after the Offer of Judgment was served. More, the defendant is often allowed to deduct those fees and costs from the award amount before it is paid.
Offers of Judgment can be an effective negotiating tactic, and a way to strongly suggest to the other side that you feel your evaluation of the case is correct. Importantly, if you cannot resolve the case before trial, the other side cannot tell the jury about your Offer of Judgment in order to convince them to give you less than you’re asking for.
Consult with your attorney about whether an Offer of Judgment would be appropriate in your case, and especially consider whether you should accept the Offer of Judgment proposed by the opposing party.
The law firm of Wagner, McLaughlin & Whittemore has experience in offers of judgment and all other aspects of civil litigation on behalf of their Tampa, Florida clients. Contact us today for a free consultation.
Board certification identifies experts
Wagner, McLaughlin & Whittemore boasts 5 Florida Board Certified Attorneys!
Once an attorney has graduated from law school and passed the Florida State Bar exam, there are very few restrictions on the types of law he or she is considered qualified to practice in Florida. While most young attorneys will seek out mentors and employment in firms with more experienced attorneys, there is nothing stopping a newly-minted attorney from renting an office, opening his solo practice, hanging a sign in the window, and soliciting your business for almost any area of law he chooses. A young attorney’s success in this sort of endeavor, as anyone can guess, is mixed, and potential clients seeking legal assistance are left unsure of the quality of advice they’ll receive.
Past the first few years of practice, even attorneys who have enjoyed a long career in the law are not a good fit for every area of law. An attorney, for instance, who has practiced primarily in business law for thirty years is less likely to offer accurate advice in the area of personal injury. Similarly, a criminal defense lawyer is less likely to know the ins and outs of estate planning, and a family lawyer is unlikely to be the best choice for a client seeking assistance in international law.
Then, even if you’ve identified several potential attorneys who have practiced your needed area of law for many years, it can be hard to decide which one will be able to give you the best advice.
Fortunately, the Florida Bar Association has developed a process to certify attorneys who can be legitimately considered experts in their various fields. This certification – called Florida Bar Board Certification is one of the highest recognitions a Florida lawyer can receive, and is only granted to seven percent of all Florida attorneys. Board Certified attorneys must meet the following requirements (from the Florida Bar’s information sheet):
- Practice law for a minimum of five years.
- Demonstrate substantial involvement in the field of law for which certification is sought.
- Pass satisfactory peer review of competence in the specialty field as well as character, ethics and professionalism in the practice of law.
- Satisfy the certification area’s continuing legal education requirements.
- Receive a passing grade on the examination required of all applicants or meet strict criteria to exempt the exam.
- Recertify every five years.
The Tampa Bay law firm of Wagner, McLaughlin & Whittemore boasts five attorneys who are or have been board certified as civil-trial advocates by the Florida State Bar. We specialize in fighting for the rights of those who have been injured by others, and we would be honored to fight for you, as well. Contact us today for a free consultation.
Consult with a Tampa civil lawyer to understand your options.
During most civil cases, there comes a period of negotiation, where you start trading proposed settlements with the other party. For example, you, through your accident attorney, may tell the other driver the amount of money you would prefer to receive in the case. This is normally an amount you feel you could receive if you went to trial, and you are giving the defendant a chance to simply pay that amount and avoid the expense and stress of a trial.
In many cases, the other party will respond with a low number and suggest that you accept their number instead of yours to avoid the expense and stress of a trial yourself.
As aggravating as it can be, such is the normal process of negotiation.
Before you ball their settlement offer up and return it to them along with a few colorful words, there are a few things you should consider, together with your attorney:
• Trials are expensive, both in time and in money. If you can reach a settlement out of court, even if it’s lower than you hoped it might be, you will save yourself the time and expense of the trial. Your attorney can help you figure out if that makes the low offer a good deal for you, on balance.
• Their low offer may actually be higher than what the jury will eventually award. Though it’s difficult to contemplate, it is possible that the jury will sympathize more with their case than with yours, and will award you nothing, or a mere fraction of what the other side is offering.
• Their low offer might not be available later. If you discover new information that harms your case, you could later feel that the low offer was actually generous, and will wish to have it back. If, however, you don’t accept or actively reject an offer, the other party is not required to keep it available for you.
Any time you receive an offer to settle the case, meet with your attorney, keep an open mind, and carefully consider the pros and cons of accepting it. You may eventually choose to continue negotiating for a different amount, or even to go to trial, but you should at least be able to look back and know that your decision was thoughtfully made.
If you are in need of a legal malpractice, personal injury, medical malpractice, accident, or whistleblower lawyer in Tampa, Florida, the Tampa Bay attorneys of Wagner, McLaughlin & Whittemore would be pleased to speak with you. We fight aggressively to protect the rights of our clients. Click here or call us today at (813) 225-4000 to schedule a free consultation.
