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Applicable to Incentive Gift-Giving
The following statutes, rules, and opinions warrant a second look when deciding whether or not to accept incentive gifts offered by some court reporting firms in exchange for the booking of court reporting assignments. Some questions that should be contemplated before accepting an incentive gift are:
FLORIDA STATUTE 501.2105 Attorney’s fees.
(2) The attorney for the prevailing party shall submit a sworn affidavit of his or her time spent on the case and his or her costs incurred for all the motions, hearings, and appeals to the trial judge who presided over the civil case.
RULES REGULATING THE FLORIDA BAR:
Rule 4-1.8 CLIENT/LAWYER RELATIONSHIP, CONFLICT OF INTEREST; PROHIBITED TRANSACTIONS
(f) Compensation by Third Party. A lawyer shall not accept compensation for representing a client from none other than the client unless:
Rule 4-3.3 CANDOR TOWARD THE TRIBUNAL
Rule 4-5.3 LAW FIRMS AND ASSOCIATIONS; RESPONSIBILITIES REGARDING NONLAWYER
Comment: Lawyers generally employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals, such as paralegals and legal assistants. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client.
FLORIDA BAR ETHICS OPINIONS:
The following ethics opinions may provide some ethical guidelines that could be applicable to incentive gifting.
Opinion 63-14 (July 1963)
No attorney is permitted to make a secret commission on placement of his client’s funds or to obtain commissions from an outside source without the full knowledge, approval and consent of his client. See Opinion 70-13, which indicates that an attorney may receive a fee for referring a client to a financial institution provided that the client consents after full disclosure and the client receives the benefit of the referral fee. Read more about Ethics Opinion 63-14.
Opinion 67-25 (October 1967)
An attorney may not refer clients to an insurance carrier to procure insurance and thereafter, without knowledge of the client, be compensated by the carrier upon a sale of insurance. See Opinion 70-13, which indicates that an attorney may receive a fee for referring a client to a financial institution provided that the client consents after full disclosure and the client receives the benefit of the referral fee. Read more about Ethics Opinion 67-25.
Opinion 70-13 (November 1970, amending Opinion 60-26)
An attorney investing funds for a client may not charge a full fee to his client and, at the same time, accept a finder’s fee for placing the investments in a particular institution. Read more about Ethics Opinion 70-13.
AMERICAN BAR ASSOCIATION FORMAL OPINION 93-379
…In the absence of disclosure to the contrary…if a lawyer receives a discounted rate from a third party provider, it would be improper if she did not pass along the benefit of the discount to her client rather than charge the client the full rate and reserve the profit for herself. Clients quite properly could view these practices as an attempt to create additional undisclosed profit centers when the client had been told he would be billed for disbursements. Read entire ABA Formal Opinion 93-379.
AMERICAN BAR ASSOCIATION OPINION MARCH 2010
NOTE: There may also be tax implications to receiving incentive gifts. See HansonBridgett Tax Memorandum.