The Front Door

The first call

In June 2016, a man in Lee County went to the Legal Aid office about a paternity case involving his son. He filled out an application describing the matter and a short form about his finances, and he returned both. He never spoke with a lawyer. The only person he dealt with was an intake clerk. About a month later a letter told him his income was too high for Legal Aid’s help. The next summer, Legal Aid filed the same paternity case against him on behalf of the child’s mother. In September 2018, at trial, he told the magistrate about his visit and asked that Legal Aid be removed. Legal Aid’s lawyer could not explain why no one had spotted the conflict when the mother first asked for help.

The Second District Court of Appeal let Legal Aid stay, because he had waited more than a year after the case began to object. In a footnote, though, the court rejected Legal Aid’s argument that he had never been a prospective client. It added that the rule’s protection applies even when the person who receives the information is not a lawyer, and it suggested that Legal Aid review its intake procedures. The case is L.E.B. v. D.D.C., 304 So. 3d 54 (Fla. 2d DCA 2020) (opens in a new tab), and it poses the question this reading follows from the first call to the signed contract. What does a firm owe someone it has not agreed to represent, and what must the person who answers the phone get right? The activity puts you on that call.

Rule 4-1.18 answers the first half. A person who consults a lawyer about possibly hiring the firm is a prospective client, and a consultation can be a visit, a call, or a form. The firm may not use or reveal what she tells it, even if it never takes her case. And if it hears something that could be used against her, it can lose the chance to represent anyone on the other side of the same or a substantially related matter. The rule’s comment draws the practical lesson: limit the first conversation to what the firm needs to decide whether it can take the case. At the front desk, that means names first and the story later.

The person who takes that first call need not be a lawyer, but the Bar’s ethics committee has set conditions. In Florida Bar Ethics Opinion 88-6 (opens in a new tab), it advised that a nonlawyer who conducts the first interview must say so, gather only facts, and give no advice about the case or the fee agreement. The lawyer must then review what was gathered and confer with the client personally. In 2024, Opinion 24-1 (opens in a new tab) applied that guidance to the chatbots firms put on their websites, and it warned that one can create a prospective-client relationship without the lawyer knowing.

The names

A conflict check searches the firm’s records of everyone it has represented, opposed, or turned away, for every name connected to the new matter. The intake supplies the names: the caller, the other side and whoever owns or insures it, the people around the event, and any lawyer she has already talked to. A name that comes back is not yet a conflict. The first two questions about it are whether the record lists it as a client or an adverse party, and whether that matter is open or closed.

If the new matter would make the firm adverse to someone it represents now, Rule 4-1.7 treats that as a current-client conflict. A firm ordinarily may not sue its own client, even in a matter that has nothing to do with the work it does for that client. It can go ahead only if the conditions in Rule 4-1.7(b) are met. The last of them is each affected client’s informed consent, confirmed in writing or on the record at a hearing. Consent is possible on paper, but it asks a client to agree to be sued by its own lawyers.

A closed file ends the work, not the duty. Under Rule 4-1.9, a lawyer may not turn against a former client in the same or a substantially related matter without that client’s informed consent. The Wilkerson family shows how that plays out. David Wilkerson was driving a rental car, with his wife and infant daughter as passengers, when another car hit them. One firm represented all three. When the lawyers concluded that his own negligence may have contributed to the crash, he discharged the firm in that suit. His wife and daughter then added him as a defendant, still represented by the same firm. His insurers moved to disqualify it. In State Farm Mutual Automobile Insurance Co. v. K.A.W., 575 So. 2d 630 (Fla. 1991) (opens in a new tab), the Supreme Court of Florida held that no one had to prove what he had told the firm. The earlier relationship raised an irrefutable presumption that confidences were shared, and the firm was off the case.

The court said it implied no misconduct by the firm, and none is needed for the lesson. A driver and his passengers hurt in the same crash may one day sit on opposite sides, which is why an intake records who was driving. And the conflict belonged to the whole firm. Under Rule 4-1.10(a), one lawyer’s conflict is every lawyer’s, which is what imputed disqualification means, so a partner’s former client can stop an associate’s new case. Florida’s rule offers no screen to cure that. The way forward it names is the affected client’s consent, under the conditions of Rule 4-1.7.

When a name matches

Suppose the caller names the company she blames, and the company comes back from the search as a client of the firm. The paralegal’s job changes at that moment. The story stops. Every detail she adds is one more thing the firm may never use, and one more reason it could be barred from defending the company if her claim is ever filed. The other client stays out of the conversation. The firm’s work for the company is information relating to that representation, which Rules 4-1.6 and 4-1.9(c) protect. So the caller hears only that the firm must finish a check before going further. And the decision goes up. Whether the match is a conflict, and whether anyone could consent to it, calls for a lawyer’s judgment. The comment to Rule 4-5.3 says work of that kind cannot be delegated to a nonlawyer.

Conflicts also travel with people. A paralegal who changes jobs brings along what she learned about her old firm’s cases, and Florida’s district courts have split over what that costs the new firm. In Koulisis v. Rivers, 730 So. 2d 289 (Fla. 4th DCA 1999) (opens in a new tab), a legal secretary who worked on a doctor’s defense took a job with the lawyers suing him. Her new firm kept her away from the file. The Fourth District held that the firm had to be disqualified anyway, because she had actual knowledge of the defense’s confidences, and walling her off could not cure that. Two years later, in Lansing v. Lansing, 784 So. 2d 1254 (Fla. 5th DCA 2001) (opens in a new tab), the Fifth District took a different line. A hiring firm may keep the case if nothing was disclosed and it put adequate screening in place. That firm lost anyway, because it never screened the secretary and she worked on the husband’s file. The Fifth District hears Daytona Beach’s appeals.

The questions only a lawyer answers

A caller in pain asks the questions a lawyer would want to answer carefully. What is my case worth? Is it my fault? How long do I have? Should I talk to the insurance adjuster? The difference between legal information and legal advice is the difference between explaining how things work and telling her what the law means for her. Florida compares fault, and under section 768.81(6), Florida Statutes (opens in a new tab), a person found more than half at fault for her own harm recovers nothing in most negligence cases. That is information. Telling her whether her own conduct put her over that line is advice, and it depends on facts and law a paralegal is not licensed to weigh.

The comforting answer is the dangerous one. Section 454.23 (opens in a new tab) makes practicing law without a license a third-degree felony, and giving advice is practicing law. A caller who hears that she has a good case may act on it, by waiting too long for help or by signing an adjuster’s form. So the redirect has three parts: write the question down in her words, tell her a lawyer will answer it, and tell her when. The fee question works the same way. A paralegal can say how the firm generally handles injury cases, but the percentage and the terms are for the lawyer to set and explain.

The paper

An injury case taken for a share of the recovery runs on a contingency fee contract, and Rule 4-1.5(f) is specific about its form. The contract must be in writing and signed by the client and a lawyer, and it must state the percentages and the costs to be deducted from any recovery. Before she signs, the client receives the Statement of Client’s Rights, printed in the rule itself, and both she and the lawyer sign it. It tells her she may bargain over the percentage, that she may cancel the contract in writing within three business days and owe no fee, and that the decision to settle is hers. The rule also sets percentages above which a fee is presumed clearly excessive: 33 1/3 percent of the first million dollars before an answer is filed, and 40 percent after.

The paper protects the firm as much as the client. In Chandris, S.A. v. Yanakakis, 668 So. 2d 180 (Fla. 1995) (opens in a new tab), the Supreme Court of Florida held that a noncomplying contingency fee contract is not enforceable by the lawyer who violated the rule. A firm that skips the paperwork can do the work and lose the fee it bargained for, left to ask a court for the reasonable value of its services.

The intake ends when a lawyer decides, and the decision goes out in one of two letters. An engagement letter confirms the relationship, the matter, and the fee. Rule 4-1.5(e) says the basis or rate of a fee must be communicated to a new client, preferably in writing. A declination letter tells a prospective client that the firm will not represent her. It gives no opinion on her claim, and it keeps her from waiting on a call that is not coming. The sample letters on the Bar’s LegalFuel (opens in a new tab) site also warn that time limits may bar the claim, and they urge her to see another lawyer promptly without saying what the deadline is.

Taking the call

For the man who filled out Legal Aid’s forms, the office needed nothing unusual: a record of his name, a search when the mother came in, and someone who knew what a match meant. The activity asks the same of you on a harder day. You take a call from a woman hurt in a fall, with the intake workbook open beside the chat and the firm’s conflicts index in one of its sheets. Read the rules in Part 1 first, then run the Simulator, and watch for the moment a name in her story turns up in the firm’s records.