Monthly Archives: September 2011

Florida Bar’s Professional Ethics Committee Directs Staff to Draft Advisory Opinion Considering Whether Prosecutors can Require Waivers of Ineffective Assistance and Prosecutorial Misconduct Claims in Exchange for a Plea

Hello everyone and welcome to this JACPA Ethics Alert.  This Ethics Alert will discuss the recent decision of the Professional Ethics Committee of The Florida Bar (PEC) to issue an advisory opinion considering whether prosecutors can require waivers of ineffective assistance and prosecutorial misconduct claims in exchange for a plea to criminal charges.  As I have previously indicated, Bar Ethics Advisory Opinions are issued for guidance and are not binding precedent; however, if a lawyer attempts to follow the guidelines set forth in the ethics opinion, this could be a potential safe harbor or mitigation if the lawyer’s actions are later questioned.  I am a member of the PEC; however, I did not participate in the committee’s vote.

The PEC reviewed the issue at its meeting in Orlando on September 21, 2011.  The PEC’s discussion was a result of an inquiry from a member of The Florida Bar who advised that U.S. Attorney’s Offices in Florida are requiring the waivers.  After deferring the issue at its June 24, 2011 meeting, the PEC sought comments from interested groups such as the Florida Public Defenders Association, Florida Association of Criminal Defense Lawyers, Florida Prosecuting Attorneys Association, and the U.S. Attorney’s Offices in Florida.

Those groups all responded with written comments, and there were also some individual comments and some individuals spoke at the meeting.  Individuals representing the U.S. Attorney’s office for the Middle District of Florida appeared at the meeting and confirmed that such waivers are relatively common in the Middle District.

After the hearing comments and engaging in discussions, the PEC voted 13-11 (with one abstention) to direct Bar staff to draft a proposed advisory opinion for the committee’s consideration which concludes that a criminal defense lawyer has a conflict of interest that prevents the lawyer from advising a client whether to accept a plea offer that requires the client to waive any past or future ineffective assistance of counsel by the lawyer, and that it is impermissible for a prosecutor to make such an offer or to require a waiver of a claim of prosecutorial misconduct.

The draft advisory opinion will be placed on the agenda for review at the next PEC meeting, which has not yet been scheduled.  If proposed advisory opinion is formally adopted by the PEC, it will be published for comment in the next available issue of the Bar News.  The PEC will then reconsider the proposed advisory opinion in light of any comments received.  Any persons who timely file comments could then seek review of the proposed advisory opinion by the Bar’s Board of Governors if they disagree.

Bottom line: This has been a very hot topic in the criminal practice area recently.  If the advisory opinion is finalized, it will provide guidance to criminal prosecutors and defense attorneys regarding the ethical propriety of these waivers.

…and be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

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Letters of Protection, Notice of Receipt of Trust Funds, and Disputes over Settlement Funds in Personal Injury and Other Matters

Hello everyone and welcome to this JACPA Ethics Alert.  Since I have been fielding questions on these issues recently, this Ethics Alert will briefly discuss the Rules Regulating The Florida Bar and issues and answers related to lawyers’ Letters of Protection (LOPs), notification of third party lien holders of receipt of trust funds, and disputes over disbursement of trust funds/settlement proceeds in personal injury/wrongful death and other matters.

As everyone may already be aware, LOPs are generally used to attempt to insure that third parties (primarily medical providers) continue to provide services to injured clients in personal injury matters.  On many occasions, a medical provider will not provide medical treatment unless the lawyer issues the LOP.  The Bar Rules related to receipt of trust funds, notification, and disputes over settlement proceeds are set forth in Chapter 5 of the Rules Regulating The Florida Bar (Rules Regulating Trust Accounts).

A lawyer who issues an LOP to a provider/third party lien holder is bound to the terms of that LOP, and the LOP is the lawyer’s promise to protect that provider’s billings related to the client’s injury.  Various issues and problems commonly arise regarding these LOPs and medical and other third party liens.

The first potential issue is related to the requirement that the lawyer notify all known lien holders when settlement funds are received by the lawyer.

Rule 5-1.1(e), Rules Regulating The Florida Bar states that “(u)pon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person.”  If the lawyer is aware of the existence or third party liens, whether or not they are subject to an LOP, the lawyer must “promptly” notify all known third party lien holders of receipt of the funds.

A second potential issue is related to the lawyer’s responsibilities when there is a dispute regarding the settlement proceeds and payment of liens (and also attorney’s fees).  The dispute may occur when the client instructs the lawyer not to pay the medical provider/lien holder or when there are insufficient funds in the settlement proceeds to pay off the liens, provide funds to the client, and/or pay the lawyer’s costs and fees.

Rule 5-1.1(f) Rules Regulating The Florida Bar states “(w)hen in the course of representation a lawyer is in possession of property in which 2 or more persons (1 of whom may be the lawyer) claim interests, the property shall be treated by the lawyer as trust property.”  This rule requires the lawyer to hold the disputed funds in trust until the dispute is resolved.

If the third party lien is not subject to an LOP and the client does not want the outstanding bill/lien to be paid from the settlement proceeds, the lawyer should have the client execute a document (either as part of the settlement/closing statement or preferably in a separate document) confirming that the client has instructed the lawyer not to pay the bill and will be responsible for payment of the outstanding debts on his or her own.

If the lien is subject to an LOP and the client does not want to pay the lien(s) from the settlement (or there are insufficient funds to pay the LOPs), the ownership of those funds are then in dispute.  If the lawyer is unable to resolve the dispute, the Comment to the Bar Rule states that the dispute can be interpleaded and the disputed trust funds placed into the registry of the court for resolution.  If the dispute is interpleaded and the funds are placed into the registry of the court, the lawyer is no longer responsible and the client and provider must then address the dispute with the court.      

Bottom line:  This is just a brief overview of the common issues and selected Bar Rules and is not comprehensive.  Lawyers who handle personal injury or other matters wherein trust funds are received and are subject to an LOP or third party liens and/or a dispute should be aware of and follow all relevant Bar Rules.

…and be careful out there!

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

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Second DCA says plaintiff’s law firm must be disqualified when it also represents defendant’s former lawyer in a related legal malpractice action

Hello everyone and welcome to this JACPA Ethics Alert.  This Alert will discuss the September 21, 2011 Second District Court of Appeal opinion which granted a writ of certiorari and remanded the denial of the disqualification of the law firm stating that the law firm must be disqualified since it also represented the defendant’s former lawyer in a related legal malpractice action.  The case is Ironstone Bank v. Frye, — So.3d —-, 2011 WL 4375025, 2011 WL 4375025 (Fla. App. 2 Dist.).

The law firm (Henderson Franklin) represented the plaintiff/bank in an action alleging that the defendant, Frye, breached the terms of a loan guaranty.  The law firm also represented Frye’s former lawyer in defending a legal malpractice action which included claims for matters directly related to the former lawyer’s representation of Frye in the defense of the Bank’s claims against him.

According to the opinion, the pending legal malpractice action included allegations related, in part, to the former attorney’s representation of Frye in the same action in which the law firm was currently representing the Bank. The allegations of the malpractice complaint also concerned the former lawyer’s representation of Frye on estate and asset planning matters, during which Frye alleged that his former lawyer gained detailed knowledge of his financial circumstances, which could be invaluable to the Bank in collecting a judgment against Frye.

Mr. Frye filed a motion to disqualify the law firm, which was denied.  The judge stated at the end of the hearing that “the basic problem with [Mr. Frye’s] position is there is no attorney/client relationship between Mr. Frye and Henderson Franklin.  Therefore, there is no irrefutable presumption because you’ve not established an attorney/client relationship.”  The judge also said that Frye failed to meet his burden to establish “the procedural and substantive requirements for disqualification because, number one, Frye and Henderson Franklin never shared an attorney/client relationship, and, number two, there has been no evidentiary showing that the matter in which Henderson Franklin is representing … Trupp and [the Arnstein firm] … are the same or substantially related matters.” (emphasis supplied).  The written order denying the motion made similar findings and conclusions and cited to the Second DCA’s decision in Kaplan v. Divosta Homes, L.P., 20 So.3d 459 (Fla. 2d DCA 2009).

The opinion framed the issue as follows:  “whether Henderson Franklin’s access to confidential communications between Frye and his former lawyer through its representation of the lawyer in the legal malpractice action is sufficient to require the disqualification of Henderson Franklin from continued representation of the Bank in the action against Mr. Frye on the guaranty.”

“We conclude that the unfair informational advantage accruing to Henderson Franklin through its representation of Mr. Frye in the legal malpractice action disqualifies it from further representation of the Bank in its action against Mr. Frye on the guaranty. The decision of the Third District in a case involving similar facts, Adelman v. Adelman, 561 So.2d 671 (Fla. 3d DCA 1990), guides our decision on this point.

After analyzing the Adelman decision, the opinion concluded that the trial judge erroneously relied on Kaplan in requiring an attorney/client relationship between Frye and the law firm and a showing that the matters were the same or substantially related matters since the motion was not based on a conflict of interest but on the unfair informational advantage the law firm obtained from its access to confidential communications to the former lawyer through its representation of him and his law firm in the legal malpractice action.

“Because the Bank’s counsel has access to confidential communications between Mr. Frye and his former lawyer concerning the action on the guaranty by virtue of its representation of the former lawyer in the malpractice action, we conclude that the Bank’s counsel is disqualified from representing the Bank in the action on the guaranty.”  The opinion granted the petition for a writ of certiorari and remanded the case to the trial judge to grant the motion.

Bottom line:  The Second DCA opinion followed the Third DCA’s decision in Adelman and found that a party moving to disqualify a lawyer is not required to show that an attorney/client relationship or that the matters are the same or similar if the current lawyer/law firm has gained an unfair informational advantage.  In this case, the unfair advantage was gained by representing another party’s former lawyer in a legal malpractice action involving certain allegations which were related the same action and where the former lawyer gained detailed knowledge of the financial circumstances of the party which could be used in collecting a judgment against the former client.

…be careful out there!

As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  

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Recent ABA Opinion Says Lawyers Can Assist Clients With Communications to Represented Persons/Spouses

          Hello everyone and welcome to this JACPA Ethics Alert!  The ABA Standing Committee on Ethics and Professional Responsibility recently released Formal Ethics Opinion 11-461 (August 4, 2011) Advising Clients Regarding Direct Contacts with Represented Persons and this Ethics Alert will discuss the Opinion.  As I have previously indicated, ABA (and The Florida Bar) Ethics Opinions are not binding or precedential; however, the Opinions are intended to provide guidance to lawyers and can be important to show diligence and good faith if any issues come up in the future.

The ABA Formal Opinion states that even if parties to a matter are represented by counsel, they have the right to communicate directly with each other and it is sometimes is desirable for them to communicate directly with each other.  The Opinion then discusses whether it is ethically proper under the ABA Model Rules for a lawyer to assist a client with communications between the client and a person/adversary that the lawyer knows is represented by counsel.

The Opinion concludes that “a lawyer may give substantial assistance to a client regarding a substantive communication with a represented adversary. That advice could include, for example, the subjects or topics to be addressed, issues to be raised and strategies to be used.  Such advice may be given regardless of who (the lawyer or the client) conceives of the idea of having the communication. “

The Opinion prefers the approach taken in Restatement §99 Comment (k) which approves a lawyer’s assistance and advice regarding the content of communications that the client wants to have with a represented person and states that a lawyer may review, redraft and approve a letter or a set of talking points that the client has drafted and wants to use in communications with the represented person/adversary.

The Opinion cautions; however, that a “lawyer must be careful not to violate the underlying purpose of Rule 4.2 (substantially the same as Florida Bar Rule 4-4.2 Communication with Person Represented by Counsel)” in advising the client and avoid overreaching and interference with the client-lawyer relationship.

“Prime examples of overreaching include assisting the client in securing from the represented person an enforceable obligation, disclosure of confidential information, or admissions against interest without the opportunity to seek the advice of counsel.”  “To prevent such overreaching, a lawyer must, at a minimum, advise her client to encourage the other party to consult with counsel before entering into obligations, making admissions or disclosing confidential information.”

Bottom line:  According to this ABA Formal Opinion, a lawyer can assist a client in communicating with a represented person/adversary/spouse; however, a lawyer must not only avoid violating the Bar Rules; but I recommend that the lawyer also take steps (preferably in writing) to protect him or herself from allegations of overreaching and/or using the client as an agent to circumvent Rule 4-4.2 and communicate directly with a represented person.

…be careful out there!

            As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or anyother ethics, risk management, or other issues, please do not hesitate to contact me. 

           THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license. 

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Former Greenberg Traurig Chicago Partner Sentenced to Six Years in Prison for Overbilling a City near Chicago

Hello everyone and welcome to this JACPA Ethics Alert which discusses the recent media reports that a lawyer who worked for the Chicago office of Greenberg Traurig pled guilty to criminal charges and sentenced for falsely billing $100,000.00 worth of work to the City of Calumet Park, a suburb of Chicago.  

According to the media reports (most recently AmLaw Daily), the lawyer was a former partner in the government affairs department at the Greenberg Traurig office in Chicago and he was sentenced to six years in prison and taken into custody on September 12, 2011.  He was the city’s special counsel on tax and municipal finance issues and he was charged with the crimes in March 2010 after a local school superintendent apparently made some inquiries and discrepancies were found in his presentations which showed evidence of the fraud.  Greenberg Traurig immediately fired the lawyer after he was charged with improperly padding about $1 million worth of services.  The lawyer had worked for the law firm since 2002 and had also represented several other suburban Chicago municipalities as part of his practice.

Amazingly, according to prosecutors, the lawyer did not use the funds for his own personal gain but included them in his billable hours at Greenberg Traurig in order to increase his standing at the law firm.  For its part, Greenberg Traurig agreed to repay the city about $3.2 million in legal fees charged by the former partner for past work at a rate of $600.00 an hour, some of which was not performed for the village.

According to reports, the convicted lawyer’s criminal defense lawyer said that he is “extremely sorry for what he did” and feels terrible for “disappointing the legal profession and his family.”  Interestingly, the Illinois State Bar disciplinary records apparently do not show any pending disciplinary proceedings against the lawyer but that may change very soon…

Bottom line:  This is a very interesting case on multiple levels, including the fact that the lawyer was apparently using his overbilling to improve his standing at the law firm (which of course would presumably improve his future income and distributions from the law firm as well).  Is there a lesson here?

…be careful out there!

            As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.

THE LAW OFFICE OF JOSEPH A. CORSMEIER, P.A.

PROVIDES ETHICS ADVICE AND EXPERT OPINIONS TO LAWYERS AND LAW FIRMS

DEFENDS LAWYERS IN BAR ADMISSION AND DISCIPLINE CASES

(AND MUCH MORE!)

My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at jcorsmeier@jac-law.com.  You can find my law firm on the web at www.jac-law.com. In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

 

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Florida Supreme Court Adds Pledge of “Fairness, Integrity, and Civility” to Lawyer’s Oath of Admission

JACPA Ethics Alert: Florida Supreme Court Adds Pledge of “Fairness, Integrity, and Civility” to Lawyer’s Oath of Admission.

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South Carolina Ethics Advisory Opinion says SC Lawyers Can Use “Daily Deal” Websites That Offer Discounted Rates to Market Legal Services

                Hello everyone and welcome to this JACPA Ethics Alert which discusses the recent South Carolina Ethics Advisory Opinion which states that lawyers can use “daily deal” websites (i.e. Groupon) which offer services at discounted rates to market legal services.  The SC Ethics Opinion number is 11-05 and is available on the South Carolina Bar’s website at www.scbar.org.

The facts set forth in the advisory opinion are as follows:  a South Carolina lawyer wanted to use “daily deal” websites that offer products and services at discounted rates to market legal services.  The customers/website users purchase a voucher through the website to be redeemed for a discounted product or service, in this case legal services.  The purchase price would be split between the website offering the voucher and the lawyer.  The lawyer wanted to offer legal services such as the preparation of wills.

The issue as framed by the advisory opinion was whether a lawyer violates the SC Rules of Professional Conduct by contracting with a website to offer vouchers that can be purchased from the website and then subsequently redeemed for discounted legal services.

The opinion concluded that the use of “daily deal” websites to sell vouchers to be redeemed for discounted legal services does not violate prohibition of SC Rule 5.4(a) prohibiting the sharing of legal fees; however, the attorney was cautioned that the use of such websites must be in compliance with Rules 7.1 and 7.2 and could lead to violations of several other rules if logistical issues were not appropriately addressed.

The following rationale was used to support the above conclusion: “(t)he fee charged by a company for use of its service (a percentage of the money paid by the customer for the discounted coupon) constitutes the payment of “the reasonable cost of advertisements or communications” permitted under Rule 7.2(c)(1) and not the sharing of a legal fee with a non-lawyer prohibited by Rule 5.4(a).  The fact that the charge for this form of advertising service is deducted up front by the company rather than invoiced and then paid from the lawyer’s operating account does not transform the transaction from the payment of advertising costs into an improper fee split.  To the extent the payment to the companies of a percentage of the coupon value as a cost of participating in the service does constitute a splitting of a fee with a non-lawyer, the members of this group (committee) believe it would violate the prohibition as written in Rule 5.4(a).”

The opinion also provided a secondary rationale for the conclusion: “the transaction does constitute the splitting of an attorneys’ fee with a non-lawyer, but that the prohibition of fee-splitting in Rule 5.4(a) only applies in situations where such fee-splitting interferes with “the lawyer’s professional independence of judgment” on behalf of the client as stated in comment one to the rule.”  If the website does not have the ability to exercise any control over the services which are to be subsequently rendered by the attorney, there would be no violation of Rule 5.4(a) (the functional equivalent to Florida Bar Rule 4-5.4).

The opinion cautioned:  “(w)hile the use of “daily deal” websites may not be prohibited by Rule 5.4(a), the Committee is concerned with the effect the use of such websites may have on the reputation of the legal profession if the attorney does not ensure compliance with the Rules of Professional Conduct concerning advertisements.   For this reason, the lawyer is cautioned that the use of “daily deal” websites must be in compliance with Rules 7.1 and 7.2.  The lawyer is responsible for the communication to potential clients which she asked to be placed on the “daily deal” website.  The opinion also stated that the committee did not believe the use of “daily deal” websites would violate the requirements of Rule 7.3 concerning contact with prospective clients, because the lawyer will not be communicating directly with the users of the website and because the lawyer does not know whether the prospective clients who may use the website will be in need of legal services in a particular matter.

Finally, the opinion stated: “(t)he lawyer is further cautioned that various other logistical issues should be addressed by an attorney using “daily deal” websites to prevent a violation of the Rules of Professional Conduct.   For example, the lawyer must ensure that she complies with Rule 1.5(b), requiring the lawyer to disclose the scope of representation and the basis of her fee within a reasonable time of the commencement of representation.  Further, the lawyer must ensure that she is in compliance with Rule 1.15(c) which requires unearned fees to be deposited into a client trust account until the fees are actually earned.  If a consumer purchases a voucher from a “daily deal” website and the lawyer is paid a percentage of the purchase price prior to rendering any services, then the compensation paid to the lawyer may be considered an unearned fee.  Lastly, the lawyer must address the logistical issue of how she will handle conflict of interest situations that may arise under Rules 1.7 and 1.9.”

Bottom line:  This is an opinion of the South Carolina Ethics Committee and does not specifically address Florida Bar Rules.  In addition, the opinion sets forth many caveats (i.e. “red flags”) related to this type of activity.  It is also not at all clear whether this activity would be permitted under the Florida Bar Rules or whether it would even be worth the effort considering all of the caveats.

…be careful out there and have a great weekend!

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