March 1, 2005 Regular News Proposed ethics advisory opinions Proposed ethics advisory opinions The Professional Ethics Committee revised Proposed Advisory Opinions 04-1, 04-2, and 00-2 (Reconsideration) at its meeting on January 21, 2005, after consideration of comments received by Florida Bar members. Proposed Advisory Opinions 04-1, 04-2, and 00-2 (Reconsideration) as revised are reprinted below. Pursuant to Procedure 4(c) and (d) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the proposed opinion. The committee will consider any comments received at a meeting to be held in conjunction with The Florida Bar’s Annual Meeting on Thursday, June 23, from 9 a.m until noon at the Orlando World Center Marriott. Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication. PROPOSED ADVISORY OPINION 04-1 (January 21, 2001) A member of The Florida Bar has inquired about the appropriate course of conduct in the representation of a client who has stated his intent to commit perjury at his upcoming criminal trial. The client has repeatedly expressed the client’s intent to commit perjury and, despite the lawyer’s repeated warnings, insists upon testifying falsely. The client has been warned that the lawyer must and will advise the court if a fraud is made upon the court. The lawyer has questioned the lawyer’s ethical obligations under this scenario. This inquiry addresses the circumstances when a lawyer definitely knows that the client intends to commit perjury. This is distinct from the many other situations where the lawyer may suspect but does not know that the client intends to commit perjury. This opinion only addresses this specific inquiry. Many ethics rules relate to this inquiry. Rule 4-1.2(d), Rules Regulating The Florida Bar, prohibits a lawyer from assisting a client in conduct the lawyer knows or reasonably should know is criminal or fraudulent. Rule 4-1.6, the confidentiality rule, which is very broad, applies “to all information relating to the representation, whatever its source.” Comment, Rule 4-1.6. However, there are exceptions to the confidentiality rule. Rule 4-1.6(b)(1) requires a lawyer to reveal information necessary to prevent a client from committing a crime. While interpretation of statutes is beyond the scope of an ethics opinion, it appears that it is a crime for a lawyer to permit or assist a client or other witness to testify falsely. See Florida Statutes §§ 837.02 and 777.011. The “Candor Towards the Tribunal” rule, Rule 4-3.3, provides in pertinent part: (a) False Evidence; Duty to Disclose. A lawyer shall not knowingly : (1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; * * * (4) permit any witness, including a criminal defendant, to offer testimony or other evidence that the lawyer knows to be false. A lawyer may not offer testimony that the lawyer knows to be false in the form of a narrative unless so ordered by the tribunal. If a lawyer has offered material evidence and thereafter comes to know of its falsity, the lawyer shall take reasonable remedial measures. (b) Extent of Lawyer’s Duties. The duties stated in paragraph (a) continue beyond the conclusion of the proceeding and apply even if compliance requires disclosure of information otherwise protected by rule 4-1.6 [concerning lawyer-client confidentiality]. [Emphasis added.] A lawyer’s obligation to make disclosures under Rule 4-3.3 is triggered when the lawyer knows that a client or a witness for the client will make material false statements to a tribunal. Under the facts presented, the lawyer knows the client will make a misrepresentation to the court because the client has repeatedly expressed his intent to commit perjury. The comment to Rule 4-3.3 provides the following guidance: If a lawyer knows that the client intends to commit perjury, the lawyer’s first duty is to attempt to persuade the client to testify truthfully. If the client still insists on committing perjury, the lawyer must threaten to disclose the client’s intent to commit perjury to the judge. If the threat of disclosure does not successfully persuade the client to testify truthfully, the lawyer must disclose the fact that the client intends to lie to the tribunal and, per 4-1.6, information sufficient to prevent the commission of the crime of perjury. A lawyer is required to reveal information that is necessary to prevent a client from committing a crime, including the crime of perjury. Rule 4-1.6(b)(1), Rules Regulating The Florida Bar. The comment to Rule 4-1.6 provides: It is admittedly difficult for a lawyer to ‘know’ when the criminal intent will actually be carried out, for the client may have a change of mind. * * * Where practical the lawyer should seek to persuade the client to take suitable action. In any case, a disclosure adverse to the client’s interest should be no greater than the lawyer reasonably believes necessary to the purpose. If the lawyer knows that the client will testify falsely, withdrawal does not fulfill the lawyer’s ethical obligations, because withdrawal alone does not prevent the client from committing perjury. Rather, a lawyer must disclose to the court a client’s intention to commit perjury. Timing of the disclosure may vary based on the facts of the case and, in some cases, may be made ex parte in camera. Ultimately, the method of disclosure is subject to the discretion of the court. This disclosure causes a conflict of interest between the lawyer’s ethical obligation to disclose and the client’s interest. Rule 4-1.7, Rules Regulating The Florida Bar. Due to the conflict, the lawyer must move to withdraw. Rule 4-1.16(a), Rules Regulating The Florida Bar. Notwithstanding good cause to withdraw, if the court requires the lawyer to continue the representation, the lawyer must comply with the court’s order. Rule 4-1.16(c), Rules Regulating The Florida Bar. A lawyer may offer the client’s testimony in the narrative only if the court orders the lawyer to do so. Rule 4-3.3(a)(4), Rules Regulating The Florida Bar. In the event that the client does not give advance notice to the lawyer prior to testifying falsely, Rule 4-3.3(a)(2) and the comment require the lawyer to take reasonable remedial measures to rectify the fraud. The comment to Rule 4-3.3 states: When false evidence is offered by the client, however, a conflict may arise between the lawyer’s duty to keep the client’s revelations confidential and the duty of candor to the court. Upon ascertaining that material evidence is false, the lawyer should seek to persuade the client that the evidence should not be offered or, if it has been offered, that its false character should immediately be disclosed. If the persuasion is ineffective, the lawyer must take reasonable remedial measures. * * * If perjured testimony or false evidence has been offered, the advocate’s proper course ordinarily is to remonstrate with the client confidentially. If that fails, the advocate should seek to withdraw if that will remedy the situation….[I]f withdrawal will not remedy the situation or is impossible and the advocate determines that disclosure is the only measure that will avert a fraud on the court, the advocate should make disclosure to the court. It is for the court then to determine what should be done-making a statement about the matter to the trier of fact, ordering a mistrial, or perhaps nothing. In conclusion, when a lawyer is representing a criminal client who has stated an intention to commit perjury, the lawyer is obligated, pursuant to Rules 4-1.2(d), 4-1.6(b)(1) and 4-3.3(a)(4), to disclose the client’s intent to the court. If the lawyer is not given advance notice of the client’s intent to lie, and the client offers false testimony, then the lawyer must convince the client to agree to disclosure and remediation of the false testimony; failing that, the lawyer must disclose to the court anyway. Absent client consent, the lawyer’s disclosure of the client’s false testimony or intent to offer false testimony will create a conflict between the lawyer and the client requiring the lawyer to move to withdraw from representation pursuant to Rule 4-1.16(a). If the court requires the lawyer to remain in the case, despite good cause for withdrawal, the lawyer must do so. Rule 4-1.16(c). It is then up to the court to determine what should be done with the information. This opinion is limited to the situation presented when a lawyer knows that his or her client is going to commit perjury. This opinion does not address the situation when a lawyer merely suspects but does not know that the client intends to commit perjury. PROPOSED ADVISORY OPINION 04-2 (January 21, 2005) A member of The Florida Bar has requested an advisory opinion regarding a provision that the opposing party in securities litigation wants to include in a settlement agreement. The provision at issue states: Other than discussions between the parties, their immediate families, their respective attorneys, accountants, government officials, and self-regulatory bodies such as the NASD, all parties and their attorneys and agents agree, acknowledge and consent that they shall not in any method or manner discuss, publish, or disseminate any information concerning the settlement or the terms of this Release with any other party not specifically authorized by this Release to receive such information. Further, the Claimant and their attorneys and agents agree not to include or involve the Claimant’s claims, accounts, or investments in any other claim, dispute, action, negotiation, or proceeding against Respondent, its respective present or former parties and affiliates, and each of their officers, directors, servants, agents, employees, or registered representatives, including but not limited to….. The inquiring attorney states that he often represents several clients who are pursuing the same broker-dealer. The inquiring attorney is concerned that this provision impacts his ability to effectively represent other current or future clients. Thus, the inquiring attorney asks whether he may ethically enter into an agreement containing this provision. Rule 4-5.6(b) of the Rules of Professional Conduct prohibits clauses in settlement agreements that restrict the lawyer’s right to practice. Specifically, the rule states: A lawyer shall not participate in offering or making: (b) an agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties. The comment regarding this portion of the rule states “[s]ubdivision (b) prohibits a lawyer from agreeing not to represent other persons in connection with settling a claim on behalf of a client.” ABA Model Rule 5.6(b) is identical to Rule 4-5.6(b). In Formal Opinion 93-371, the ABA Ethics Committee stated the three public policy provisions behind the rule: The rationale of Model Rule 5.6 is clear. First, permitting such agreements restricts the access of the public to lawyers who, by virtue of their background and experience, might be the very best available talent to represent these individuals. Second, the use of such agreements may provide clients with rewards that bear less relationship to the merits of their claims than they do to the desire of the defendant to “buy off” plaintiff’s counsel. Third, the offering of such restrictive agreements places the plaintiff’s lawyer in a situation where there is conflict between the interests of present clients and those of potential future clients. While the Model Rules generally require that the client’s interests be put first, forcing a lawyer to give up future representations may be asking too much, particularly in light of the strong countervailing policy favoring the public’s unfettered choice of counsel. The Professional Ethics Committee has not previously addressed subsection (b) of Rule 4-5.6 or its predecessor in the prior Code of Professional Responsibility, DR 2-108(B) 1. The only Florida state court case where the rule is discussed in any substance is Lee v. Florida Department of Insurance, 586 So. 2d 1185 (Fla. 1st DCA 1991). However, Lee addressed the legal rather than the ethical implications of Rule 4-5.6(b), and did so in the context of an appeal from an administrative law judge’s refusal to disqualify an attorney from representing an agency pursuant to the terms of a prior civil suit settlement agreement. The administrative law judge had found the restriction violative of Rule 4-5.6(b) and declared it unenforceable by reason thereof. The appellate court in Lee held that the Administrative Procedures Act did not grant administrative law judges jurisdiction to declare contracts void, and that only courts of competent jurisdiction can do so. Unfortunately, its holding is obscured by the fact that the paragraph begins with dictum. It reads: To use rule 4-5.6 as the basis for invalidating a private contractual provision is manifestly beyond the stated scope of the Rules and their intended legal effect. Until paragraph 8 of the settlement agreement has been voided, canceled, or nullified by a court of competent jurisdiction, it must be treated as valid and binding on all parties legally affected by its terms. Whether attorney Bateman acted unethically in violation of the Rules by participating in the negotiation of a settlement agreement that included the provisions in paragraph 8 and should be disciplined therefor is not the issue in this proceeding. (Emphasis added; footnote 3 referencing the jurisdictional issue, deleted) 586 So. 2d at 1188-1189. It should also be noted that Lee preceded and its dictum appears to conflict with the Florida Supreme Court’s subsequent decision in Chandris v. Yanakakis, 668 So.2d 180 (Fla. 1995) in which the supreme court held “a contingent fee contract entered into by a member of The Florida Bar must comply with the rule governing contingent fees in order to be enforceable.” Id. at 185-186. While the legal validity of a particular agreement is an issue separate from whether the agreement comports with the Rules of Professional Conduct, and Chandris dealt with the contingency fee rules rather than Rule 4-5.6(b), Chandris indicates that the court is willing to consider ethical considerations in determining whether a particular agreement is enforceable. Chandris was expressly followed in Elser v. Law Office of James Russ, P.A., 679 So.2d 309 (Fla. 5 th D CA 1996) (an engagement letter’s prospective waiver of a right to complain about invoiced fees if not asserted within 10 days after the date of the invoice, regardless of the date of receipt of the invoice, was held unenforceable as against public policy). Another case discussing Florida Rule 4-5.6 and also discussing the Lee case is an unreported case from the Southern District of Florida, Adams v. BellSouth Telecommunications, Inc., 2001 WL 34032759 (S.D. Fla. Jan. 29, 2001).In connection with the settlement of the case, lawyers for the plaintiffs entered into an agreement with BellSouth to provide “consulting” services to the telecommunications company. The BellSouth attorneys argued to the District Court that their conduct did not violate Rule 4-5.6(b) because it only involved a “limited” restriction on the right of the plaintiff lawyers to practice which was allowed under the Lee decision. The federal court disagreed, observing: For several reasons, this Court therefore does not believe that Lee condones the practice restriction negotiated and agreed to in this case. First, there is no evidence that the practice restriction was designed in any way or constructed in any limited fashion to prevent the disclosure of confidential information. No party has revealed to this Court any serious argument along these lines. Rather, it is clear from the record and the testimony of the lawyers that BellSouth sought a practice restriction on Plaintiffs’ counsel to prevent Plaintiffs’ counsel from bringing future similar cases against BellSouth with the same kind of terrorist tactics used against BellSouth in this case. In short, the practice restriction was a payoff to Plaintiffs’ counsel to make them go away and never come back. As I explain infra, this type of arrangement is a violation of Rule 4-5.6 for well-grounded public policy reasons.Second, the practice restriction was not written to protect the clients of Plaintiffs’ counsel but rather to protect the opposing party, BellSouth. In fact, the evidence in this case makes clear that Plaintiffs never were informed of the existence, terms, or content of the practice restriction agreement by any of the lawyers. The Lee exception is designed to safeguard a client’s confidential disclosures to her lawyer and avoid a potential violation of conflict of interest rules through a lawyer’s subsequent representation of a different client in a related case. Here, the practice agreement was constructed for the benefit of the opposing party (without the knowledge of Plaintiffs’ clients) in a manner that placed Plaintiffs’ counsel in a direct conflict of interest with their clients a scenario inconsistent with the reasoning of Lee and the spirit of the bar rules. I therefore find the Lee dicta inapposite. Further, I also believe that had BellSouth’s lawyers engaged in the appropriate level of research into the issue, it would have been clear to them (if it already was not clear on its face) that the negotiated consulting arrangement was unethical. 2001 WL 34032759 at pp. 5-6 (emphasis in original; footnotes omitted). While Florida has no ethics opinions as to Rule 4-5.6(b), other jurisdictions do have opinions as to their version of the rule. These opinions include a number of opinions dealing with settlement agreements directly restricting lawyers from bringing claims against the other party again. See, ABA Formal Opinion 93-371, North Carolina Opinion RPC 179 (1994), California Formal Opinion 1988-104, Oregon Opinion 1991-47, and Michigan Bar, Opinion CI-1165. All of these opinions found such provisions to be prohibited under their rules. Other states have dealt with provisions that seek to impose indirect restrictions on an attorney, rather than directly forbidding an attorney from representing others against a certain party. For example, in Texas Opinion 505 (1995), the Texas Committee determined that a settlement provision barring an attorney from soliciting people to bring suit against the opposing party and from sharing fees with other lawyers in the future in cases against the opposing party to be a violation of its version of the rule. Similarly, the New York City bar determined that its version of the rule was violated by a settlement provision barring an attorney from encouraging others to bring claims and from assisting or cooperating with other attorneys to bring claims against the opposing party. Association of the Bar of the City of New York, Opinion 1999-3. The Colorado Bar in its Opinion 92 (1993) discussed a variety of indirect restrictions that could run afoul of its rule 5.6(b), including “barring a lawyer representing a settling claimant from subpoenaing certain records or fact witnesses in future actions against the defending party, preventing the settling claimant’s lawyer from using a certain expert witness in future cases, and imposing forum or venue limitations in future cases brought on behalf of non-settling claimants.” The committee formulated a test to use to help determine whether a given provision in a settlement provision improperly restricted a lawyer’s right to practice. As stated by the committee, “the test of the propriety of a settlement provision under Rule 5.6(b) is whether it would restrain a lawyer’s exercise of independent judgment on behalf of other clients to an extent greater than that of an independent attorney not subject to such a limitation.” The ABA issued an opinion determining that a ban on the use of information learned from a representation violates Model Rule 5.6(b), but that a ban on disclosure of information learned from the representation of a client does not violate Model Rule 5.6. The ABA committee reasoned that a ban on the use of information effectively prevents a lawyer from representing future clients because the lawyer’s inability to use the information would create a conflict with the future clients under Model Rule 1.7(b) that could not be waived. ABA Formal Opinion 00-417 (2000). Other states have address restrictions on the use or disclosure of information that are made as part of a settlement agreement. The Tennessee Ethics Committee determined in Opinion 97-F-141 that a provision restricting both a plaintiff and the plaintiff’s attorney from assisting others by using case information violated Tennessee Rule DR 1-208(B). Additionally, the New York State Bar Association, in its Opinion 730 (2000) determined that an attorney could not agree to confidentiality provisions in a settlement agreement where the terms of the agreement were broader than the attorney’s duty of confidentiality. The committee stated: . . . terms of a settlement agreement may violate DR 2-108(B) if their practical effect is to restrict the lawyer from undertaking future representations and if they involve conditions or restrictions in the lawyer’’s future practice that the lawyer’s own client would not be entitled to impose. The New Mexico Bar issued an opinion, Advisory Opinion 1985-5 dealing with certain provisions in a settlement agreement. The first was a confidentiality provision as to the amount and terms of the settlement which the New Mexico Bar stated was permissible. The second provision required the plaintiff’s attorney to give her entire case file to the defense attorney to be sealed. The third provision required the plaintiff’s attorney to agree not to represent any more cases arising out of the same situation (a prison riot). The opinion concludes that the third provision violates New Mexico Rule 2-108(B) which prohibits a lawyer from entering into an agreement restricting his right to practice law in connection with the settlement of a controversy or lawsuit. As to the second provision, the opinion notes that under New Mexico law, the case file is the property of the client. 2 H owever, the committee noted the file also contained the attorney’s work product which remained the attorney’s property and to which opposing counsel normally had no access. The committee determined that by making the provision include the entire file, it necessarily included the attorney work product, and as a result was a violation of Rule 2-1.08(b) because this may inhibit her ability to represent clients in the future and would allow defense counsel to “accomplish indirectly what they cannot accomplish by directly precluding the attorney from representing other plaintiffs with similar claims.” The rule prohibiting settlement agreements restricting a lawyer’s right to practice applies to both the attorney making the offer and the attorney accepting it. See, e.g., ABA Formal Opinion 93-371, Michigan Opinion CI-1165, New Mexico Opinion 1985-5, Colorado Formal Opinion 92, New York State Opinion 730, North Carolina Opinion RPC 179, and California Formal Opinion 1988-104. Additionally, any residual doubt about whether the prohibition applies to both sides of an agreement is resolved by Rule 4-8.4(a) which prohibits an attorney from violating the rules through the acts of another. Therefore, an attorney who “induces” another attorney to violate an ethics rule would be guilty of violating the ethics rules as well. While the above discussed authorities from other jurisdictions are not binding on the Professional Ethics Committee, they provide guidance to the Committee in interpreting Florida Rule 4-5.6 and the provision presented by the inquiring attorney. If the Committee were faced with a provision that directly stated that the inquiring attorney could not represent any other clients before the opposing party, we would find such a direct restriction to be an obvious violation of Rule 4-5.6. However, the Committee is not reviewing such a provision. If the provision is prohibited by Rule 4-5.6, it would be as an indirect restriction on the inquiring attorney’s ability to practice. In making such a determination, the provision must be examined carefully. The tests formulated by other jurisdictions are useful in this analysis. Does the provision, under the test formulated by the New York State Bar Association in its Opinion 730, seek to impose restrictions or conditions on the inquiring attorney’s future practice that the inquiring attorney’s own client would not be entitled to insist upon? Further, as stated by Colorado Opinion 92, does the provision restrain the inquiring attorney’s exercise of independent judgment on behalf of his clients to an extent greater than that of an attorney not subject to the provision? Additionally, as noted in New Mexico Opinion 1985-5, does the provision allow the opposing party to indirectly accomplish what it cannot accomplish directly, namely prevent the inquiring attorney from representing other clients against it in the future? Consideration should also be given, as the court did in the Lee case to whether the clause benefits the inquiring attorney’s client or whether it benefits the opposing party instead. Another consideration that should be made is whether the provision furthers or hinders the public policies Rule 4-5.6(b) seeks to protect. While these tests are worded differently, they all boil down to one essential question: how does a particular settlement provision affect an attorney’s ability to represent another client in a matter involving the same or a related opposing party? If the provision has no effect on a lawyer’s ability to represent such a client, the provision will not run afoul of Rule 4-5.6(b). On the other hand, if a provision does affect a lawyer’s ability to represent another client and that effect is a negative affect, the provision is impermissible under Rule 4-5.6. Keeping this in mind, the Committee turns now to examine in detail the provision submitted by the inquiring attorney. The first clause of the settlement provision submitted by the inquiring attorney states: Other than discussions between the parties, their immediate families, their respective attorneys, accountants, government officials, and self-regulatory bodies such as the NASD, all parties and their attorneys and agents agree, acknowledge and consent that they shall not in any method or manner discuss, publish, or disseminate any information concerning the settlement or the terms of this Release with any other party not specifically authorized by this Release to receive such information. To the extent this clause is merely a confidentiality agreement as to the terms of the settlement it does not pose an ethical problem, provide there is no legal prohibition against confidentiality of a particular settlement. 3 The clause at issue makes only the terms of the settlement and release itself confidential. Such confidentiality clauses have typically been determined not to violate ethics rules. See, e.g., New Mexico Opinion 730 and Colorado Opinion 92. Also, the provision does not contain a provision concerning prohibiting the inquiring attorney from using information about the case itself. Therefore, it differs from the provisions found to be problematic in ABA Formal Opinion 00-417, Tennessee Opinion 97-F-141 and New York State Bar Association Opinion 730. The only other possible problem with the clause is the confidentiality provision as to the terms of the release itself. The Florida Supreme Court has held that agreements seeking to prevent someone from filing a bar grievance are unenforceable and unethical. See, The Florida Bar v. Fitzgerald, 541 So.2d 602 (Fla. 1989) and The Florida Bar v. Frederick, 756 So.2d 79 (Fla. 2000). However, the clause does allow information to be given to “self-regulating bodies” and The Florida Bar is a self-regulating body for attorneys. Presumably then this sentence does not impose a restriction on any of the signatories’ ability to file a bar grievance against any of the attorneys involved in the case. The second clause of the provision is more problematic. It states: Further, the Claimant and their attorneys and agents agree not to include or involve the Claimant’s claims, accounts, or investments in any other claim, dispute, action, negotiation, or proceeding against Respondent, its respective present or former parties and affiliates, and each of their officers, directors, servants, agents, employees, or registered representatives, including but not limited to….. If the provision is intended to be a general release of liability as to the defendants and affiliated parties it would not run afoul of Rule 4-5.6(b). However, if the provision were merely to release the respondent and the other people listed from future claims by the Claimant, why would the provision include the attorney representing the Claimant? The inclusion of the attorneys in the provision seems to indicate that the provision is not merely a general release of liability. Thus, if the provision is not a release of liability , the Committee must examine how this provision will affect the inquiring attorney’s ability to represent other clients. The clause would prohibit the inquiring attorney from including or involving the “Claimant’s claims, accounts or investments in any other claim, dispute, action, negotiation or proceeding” against the Respondent and the named affiliates and people. Rule 4-1.9(a) would allow the inquiring attorney to bring substantially similar claims to those he brought for the client as long as it would not be adverse to the interests of the now former client. Further, the inquiring attorney would be allowed to use information relating to the representation of the Claimant as long as it was not to the disadvantage of the former client. The provision appears to be a broader restriction on the inquiring attorney than the client would be entitled to impose under Rule 4-1.9. Additionally, if the inquiring attorney could not bring claims otherwise permissible under Rule 4-1.9, as to his former client’s “claims, accounts or investments” against the brokerage firm and its named affiliates his independent professional judgment on behalf of clients who may have claims against the brokerage would be limited in such a manner as to cause a conflict under Rule 4-1.7(b) as to such clients. It is not clear how this provision would benefit the inquiring attorney’s current client. On the other hand, it certainly would benefit the opposing party to prevent the inquiring attorney from representing others against it and its affiliates. The provision hinders, rather than advances the public policy reasons behind Rule 4-5.6. In sum, the second clause of the settlement provision submitted by the inquiring attorney runs afoul of Rule 4-5.6. Accordingly, the inquiring attorney may not ethically enter into a settlement containing this clause. In summary, Rule 4-5.6(b) prohibits Florida attorneys from proposing or agreeing to a restriction on an attorney’s right to practice in connection with a settlement of a matter between private parties. The prohibition applies to both direct and indirect restrictions. In determining whether a particular provision violates the rule, the effect of the provision on the attorney’s ability to represent other clients must be examined. This determination should include consideration of whether the provision imposes restrictions on the attorney broader than the attorney’s own client would be able to insist upon, whether the provision would limit the attorney’s independent professional judgment in the representation of other clients, whether the provision allows an opposing party to indirectly achieve a restriction on the lawyer’s right to practice, whether the provision benefits the client or the opposing party and whether the provision furthers or hinders the public policy reasons Rule 4-5.6 was founded upon. This list of considerations is not intended to be all-inclusive as different circumstances may call for different considerations. Nor is it intended that the considerations listed above form a rote checklist that must be followed before a provision can be found to be ethically impermissible. This is because, fundamentally, all of the considerations listed above are different ways of asking the same basic question: what is the effect of the provision on a lawyer’s ability to represent other clients. If the provision negatively affects the lawyer’s ability to represent other clients, the provision cannot be permissible under Rule 4-5.6. Taking all of this into consideration in examining the provision before the Committee, the Committee finds that the second clause of the provision is impermissible under Rule 4-5.6(b) because it negatively affects the inquiring attorney’s ability to represent other clients. However, if the parties actually intend the provision to be a release of liability, the portion of the provision referring to the attorneys must be eliminated. If this portion of the provision is removed, then the provision would not violate Rule 4-5.6(b). 1 D R 2-108(B) stated “[i]n connection with the settlement of a controversy or suit, a lawyer shall not enter into an agreement that restricts his right to practice law.” 2 F lorida law is different. Under Florida law the case file is considered to be the attorney’s property. See, Ethics Opinion 88-11(rec). However, due to the resolution of the issue in the New Mexico opinion, this difference in the law does not mean the reasoning of the New Mexico opinion is not relevant. 3 See, e.g.; Fla. Stat. § 69.081 (“Sunshine in Litigation Act” which prohibits judgments, agreements and contracts that have the effect of concealing a public hazard). Whether a provision outside the ethics rules prohibits a confidentiality clause in any given case, is a question of law that is beyond the scope of an advisory ethics opinion. PROPOSED ADVISORY OPINION 00-2 (Reconsideration) (January 21, 2005) The Committee has reconsidered Opinion 00-2 which discourages lawyers from being involved in settlement agreements in which an insurance company places funds directly into an account in a client’s name instead of sending the lawyer a check which is then deposited into the lawyer’s trust account. Opinion 00-2 concludes that this type of arrangement, sometimes known as a “Safe Haven Account” or “FUNDaccount,” prevents a lawyer from fulfilling his or her ethical obligations to third parties. See Rule 5-1.1 and Rule 5-1.2, Comment, Rules Regulating The Florida Bar. Additionally, the Committee was concerned about “reducing available funds that otherwise would be used to assist in the administration of justice through participation in the Supreme Court approved IOTA program.” The Committee is concerned that Opinion 00-2 might be interpreted as mandating limitations on the client’s ability to direct payments of the client’s share of settlement funds into specific financial accounts or to designated third party recipients without having those funds placed first in a lawyer’s trust account. The client has wide discretion in directing the manner in which the monies owed to the client are distributed provided, however, that the client may not direct payment of funds in a manner intended to avoid the client’s legal obligation to pay the client’s lawyers or to pay debts owed to third parties. The Committee believes that the concerns expressed in Opinion 00-2 can be avoided in a settlement where the only funds going directly from the insurance company into a client’s financial account or to another recipient designated by the client are monies owed to the client and the insurance company issues a separate check to the attorney for the remaining balance, including attorney’s fees, any applicable costs, and amounts owed to third parties which are subject to lien or other valid legal claim that a lawyer is obligated to protect. See Florida Ethics Opinion 02-4. The attorney would then deposit these funds into his or her attorney trust account and distribute the funds in accordance with the attorney’s ethical obligations. This agreement gives a lawyer control over that portion of settlement proceeds covering fees, costs, and amounts to which third parties may have valid legal claims that a lawyer is obligated to protect. This permits the lawyer to fulfill his or her ethical duties under Rule 5-1.1 and Rule 5-1.2, Comment, Rules Regulating The Florida Bar. It also allows for the collection of interest on these funds, through placement in an IOTA account when required by Rule 5-1.1(e). In conclusion, a lawyer may participate in an arrangement where an insurance company pays only that portion of the settlement proceeds owed directly to the client into a client’s financial account or to another recipient designated by the client. As stated in Opinion 00-2, however, a lawyer should not participate in a settlement if the funds deposited into the client’s account include the attorney’s fees, costs and funds to which a third party may have a claim.
Klay Thompson subscribes. You can too for just 11 cents a day for 11 months + receive a free Warriors Championship book. Sign me up!OAKLAND – Steve Kerr took the bait. After pledging all series long to his players not to pay attention to Patrick Beverley’s antics, the Warriors’ coach could not resist giving him some bulletin board material.OAKLAND, CA – APRIL 24: Golden State Warriors’ Draymond Green (23) shoots a layup against Los Angeles Clippers’ Patrick Beverley (21) in the third quarter …
Do you have tips for filming convincing fight scenes? Let us know in the comments. Follow these 6 pro tips to shoot realistic fight scenes in your next film.Cover image via Marvel Studios.If you’re anything like me, you grew up watching and re-watching some of your favorite action-adventure films on TV and VHS. I probably saw some action classics like Raiders of the Lost Ark or The Matrix hundreds of times. I knew the sequences by heart – including every kick, block, and punch in every fight scene.A great fight scene can make a movie memorable. However, they are risky to shoot and require a great deal of technical skill to pull off. If you think you’ve got what it takes to step into the ring and throw down on a cinematic fight scene, check out these six tutorials to make a realistic fight scene in your next project.Choreograph and Practice (and Repeat)There’s no such thing as an improvised fight scene in film. Not only do you need to carefully choreograph your fight scene down to the smallest detail, you also need to dedicate just as much time to practicing the choreography until your actors know the moves inside and out. Check out this interview with Yung Lee (also known as GakAttack) by RocketJump. He offers some behind-the-scenes insights into how they painstakingly choreograph their sequences move-by-move.Here’s the final version.Break The Scene Down into SectionsAs you can see in this video by Tomorrow’s Filmmakers and in the RocketJump video, fight scenes often break down into sections. These sections are much smaller and self-contained — usually restricted to one or two main actions (like a punch and a block). This allows filmmakers the freedom and control to shoot the same section several times from different angles and find the best shot.“Stack” Your HitsThis tutorial by Rustic B, a professional stunt man, explains many of the fight scene tricks of the trade. One of the staple elements of creating realistic (yet safe) fights is the practice of “stacking” your camera shots to make punches look real, even though the actors are actually a safe distance apart. The recommended distance of six inches to two feet can safely sell a punch, as long as the motion crosses an even line across the face or area hit. You can watch the full tutorial below.Make the Camera Part of the ActionAnother popular technique in modern fight scenes is to make the camera part of the action. This usually involves quick pans or tilts that accompany a movement to simulate extra harshness in the strike. Modern audiences are quite familiar with these movements (often without even realizing it). These movements subtly suggest more violence than the scene is actually portraying (as you can see in the GIF above). Here’s the full video by Stray Angel Films.Cut Out Frames on ImpactYou may notice that many intense fight scenes have a jerky feeling, which makes it seem more raw. In this tutorial by FilmRiot, you can learn how the simple act of cutting a frame here and there on impacts can create an extra level of violence, which is easy to notice but hard to detect. Connolly warns that while you can even cut several frames at times, if you go too far and create a noticeable jump, it can ruin the strike for your audience.Layer Your SFXAt the end of the day, a good fight scene can only be as good as its sound design — which can be a major part of the illusion. However, as you can see in the tutorial by chinfat, a good editor needs to mix in many different layers of sound effects for every motion to give the scene the density that it needs. This includes everything, like hits, tears, cuts, and grunts.You can check out a full library of combat/fight VFX here.If you’re looking for more fight scene and action VFX resources, here are some more links to follow:The Insane Stunts and Action of 87Eleven10 Explosive Superhero VFX Breakdowns329 Free Action Elements for Video Editors
Five-time world champions Australia will lock heads with New Zealand, who have never won a World Cup on Saturday. Chart toppers Australia have already qualified for the semi-finals, while New Zealand need one more victory to join the defending champions.The Kane Williamson-led New Zealand side had the best possible start to the showpiece event as maintained an unbeaten streak before going down against Pakistan. Kiwis have a fiery pace unit in the form of Trent Boult and Lockie Ferguson who could trouble the Australian batsmen.On the batting side, the Kiwis have heavily relied mainly on skipper Williamson. With 414 runs from five innings, Williamson averages 138 and is at the fifth place in the list of leading run-getters. A lot will depend on him against a lethal Aussie pace attack as their top-order have disappointed so far.The Aaron Finch-led side, on the other hand, hasso far given an all-round performance in every game.Openers Finch and David Warner are on the track of becoming the greatest ever opening pair in the World Cup. While Warner tops the chart of leading run-getters with 500 runs from seven innings, Finch is just four runs short of him from as many games.The bowling has been fantastic so far as their two pacers — Mitchell Starc and Pat Cummins — have been brilliant. Starc has 19 wickets from seven games while Cummins has scalped 11 from as many games.What TV channel and live stream is the World Cup 2019 match New Zealand vs Australia on?advertisementAll World Cup 2019 matches can be viewed on – Star Sports 1, Star Sports 2, Star Sports 3, Star Sports 1 in Hindi, Star Sports HD. Hotstar.com and Hotstar app will live stream all the games.Where will the World Cup 2019 match between New Zealand vs Australia be played?The World Cup 2019 match New Zealand vs Australia will be played at the Lord’s Cricket Ground in London from 6 PM IST on Saturday, June 29.Where can I watch the World Cup 2019 match New Zealand vs Australia live?The match will be shown on the Star Sports TV network and can also be streamed on hotstar.com.Where can I check the online live updates of the World Cup 2019 match New Zealand vs Australia?You can follow our coverage here – https://www.indiatoday.in/sportsWhat are the squads for the World Cup 2019 match New Zealand vs Australia?Full Team SquadsNew Zealand: Colin Munro, Martin Guptill, Kane Williamson(c), Tom Blundell(w), Ross Taylor, Henry Nicholls, James Neesham, Mitchell Santner, Lockie Ferguson, Trent Boult, Tim Southee, Matt Henry, Colin de Grandhomme, Tom Latham, Ish Sodhi.Australia: Aaron Finch (c), Jason Behrendorff, Alex Carey (wk), Nathan Coulter-Nile, Pat Cummins, Usman Khawaja, Nathan Lyon, Shaun Marsh, Glenn Maxwell, Kane Richardson, Steve Smith, Mitchell Starc, Marcus Stoinis, David Warner, Adam Zampa.Also Read | World Cup 2019: Steve Smith should bat at No.3, says Shane WarneAlso Read | New Zealand vs Australia Lord’s, London Weather Updates on SaturdayAlso See
Ben Hirsch’s incredible journey from Clifton Hill to Getafeby Chris Sermeno11 days agoSend to a friendShare the loveIt’s game day, and you’re dressed from head to toe in team apparel, thinking of the game that lies ahead… The team bus is pulling into the stadium while crowds of fans mob the entrance, clamouring over each other with cameras and phones in hope of catching a glimpse of their idols through the windows. After a briefing in the change rooms, you lace up your brand new, personalised boots and take to the lush green pitch with your teammates, standing side by side while the adoring public chants and cheers, the spotlights flood the stadium with a brilliant white light for the game that awaits.What would it be like to be a world class footballer? We dream of what we would do with the money, the fame, the global outreach and the millions of adoring fans.While football is enjoyed by millions across the world, few really understand the hard work, career deciding choices and life altering sacrifices that’s required to make it to the professional scene. Australian footballer Ben Hirsch experienced the tough side of football that many of us don’t see. His stories from the humble suburbs of Melbourne to the cutthroat nature of the Spanish system has changed my views of becoming a professional footballer.-I was lucky enough to sit with Ben Hirsh for nearly two hours talking all things football. Apart from being a humble person, his insight and experience was rather unique, and relatable for a lot of young footballers.Ben was a reserved teen playing for Clifton Hill in the lower state tiers of Australian football. Granted, it’s better than your average Sunday league, but hardly of substance for those wanting to make huge leaps and bounds in the world of football. Ben was playing as a reliable left back for his side when he was scouted to train and play at a football academy in Madrid. As with any young player, a move to Europe for football sounds like a dream. In Ben’s case, the dream wouldn’t wait, he was asked to board a plane just a few days later.The two years that would follow had it all, the facilities, the first team treatment, the nerves and challenges of experiencing a new country that he wasn’t familiar with, injuries, and everything you can possibly imagine with being a pro footballer. His introduction to Spain was, in true Spanish fashion, rather direct and blunt. His chauffeur had nothing to go by but a picture of Ben, and they were unable to communicate due to the language barrier. His nerves were high as the driver took him to meet his agent.”Ready to train?”Sure enough, straight off a long flight to Madrid, an unfamiliar cab ride and he was still expected to come dressed to his first training session. There was no sympathy for jet lag, or culture shock. As an aspiring athlete you aren’t afforded such luxuries as a break like the international players.Ben recalls fond memories of his time at the academy, where his teammates welcomed him as one of their own. The share housing filled with aspiring footballers from around the world and local footballers trying to work their way up the Spanish system.”A few of them spoke English so I got to know them pretty well. It was like a family, we’d train together, eat together, live together. Everyone was always on the path for the same goal, to become a professional footballer and we all encouraged each other to keep playing our best and striving for more.”Language was one of the first barriers to overcome. Having come straight from Australia, Ben had no time to pick up any lessons or study beforehand, and it was lucky for him that some of his academy mates were able to converse with him, and make life a little more welcoming for the Aussie expat. The academy held a unique element of unity, which is something Ben was grateful for. Having been baptised in a myriad of uncertainty and unfamiliarity, his teammates were all very understanding of Ben’s disposition. Fortunately, private tutoring helped him to pick up the language and he was able to adapt to his surroundings a little more.I shifted the conversation slightly, and asked Ben “¿Todavía entiendes español?” (Do you still understand Spanish?)As it turns out his Spanish is still very good, we had a short exchange in another language. It’s almost funny how language, like sport, has the power to unite people.On the tactical side of things, Ben needed some time to adjust to the Spanish way of football. Stylistically, it flows much quicker, players are required to control the ball the same way in any scenario. The pace is highlighted by the understanding of both the system that was implemented and the players to execute the plan, regardless of their position or physical ability. “I felt like a fish out of water, at first not knowing much Spanish, then having to try and fit into a new team culture and system. “It took me a while to get used to, training up to 5 times a week doing tactics, drills, running and game play all on different days, as well as match days. There was no resting, or time to absorb the local culture when I first got there.”His teammates and opposition came from reaches around the world, however Ben humbly expressed how well he performed against some players that had taken to the international stage. “There were some internationally capped players, one in particular from the Republic of Congo who had a lot of fanfare about him. I marked on him for a game, and I almost had a laugh to myself about how this kid from Clifton Hill was playing against an international youngster, and did a pretty damn good job too.”Ben’s time with the academy was slowly coming to an end, and he was under the impression he would be jetting back to Australia with some overseas experience under his belt. As football takes its twists and turns, it was around the same time former Copa del Rey runners up Getafe CF came knocking.His parents joined him in Madrid for a few days, unbeknownst to all that he was about to be offered a 2 year contract with the La Liga outfit that same week. He signed a 2 year senior contract on the day of his late uncle’s birthday, which struck an emotional chord for him as his uncle was a passionate sports fan.”It felt like a dream, I had my parents in Spain with me, I got a shirt with my name on it, I couldn’t really believe this was happening for me. It felt like such a huge shift from the state leagues in Victoria to be training in Spain, then signing for Getafe.”From his academy and his roommates, he was thrust into his first professional environment at Getafe. He details the things that made it feel like the dream had become reality.”It’s the things like walking through the change room, getting treated by first team medical staff, stuff like that which makes you feel like you’re a part of something big.”We trained on top of the hill at the training grounds, and down below you could often see the first team training. Sometimes we’d be lucky to finish early and watch them train, and it was like nothing I’ve ever seen before. “They’d come up to us later, knowing we were the reserves and take time to say hello and get to know us a little bit.”As most footballing careers sound dreamy, this is where the hard yards kicked in for Ben.Unlike his time at the academy, Getafe is a professional outfit and the expectations were much higher. In terms of the team chemistry, Ben recalls it being a much harsher environment than his academy teammates. “It was much harsher. They weren’t exclusive or anything, but there’s this element of competition for places because for these guys, it was their career they’d worked hard for, or it was their means of making a living. They weren’t going to give up their spot without a fight.”As for many La Liga sides, their reserves play in lower tiers of the Spanish football pyramid. Ben tried as he might to get into the first team but stumbling blocks along the way slowly dissolved his love for the game. The difference in the culture and environment was easily the biggest difference, despite the academy and Getafe both being based in Madrid. The weight of expectation slowly began to play on his mental health. He credits his relationship at the time being one of the stable elements of his life during his footballing career. “This is the main reason I wanted to get my story out there. I didn’t realise until later on how much this was playing on my mental health. I was anxious, had bouts of depression because week in, week out you’re pouring in your blood, sweat and tears, only to find out you weren’t on the team sheet. But you’d do it all again the following week.”I played a few minutes in a game, maybe once a month if I was lucky. It was so tough, putting in all this effort for the chance to be involved. My girlfriend at the time was probably the best thing about my life. She was able to help me through some of the feelings and emotions I’d gone through, and if it wasn’t for her I probably would’ve had some sort of break down or gone home earlier, who knows.”It was an injury that lead to Ben questioning his future. A hamstring injury put him out for the better part of a few weeks, in which time he could finally relax and enjoy his surroundings, something he had lacked while living the tough life of a professional athlete. “The physio spoke English and she was really nice, it felt good getting treated by the first team doctors and being around the first team facilities. I wasn’t training for a while, so I got to go out and experience the city a little more.”I was wearing my Getafe tracksuit, and an older man saw me in the street, and he was thrilled to meet me. He asked how my leg was, said that I’ve got some talent and he can’t wait to see me play. It’s those sorts of moments that take away the hard yards a little bit and make you feel like a pro.”Ben made the most of his injury and took his first trip back home to Melbourne since leaving for the academy. Spending time in the unforgiving but glorious Australian summer, he realised what was most important to him, which was taking care of his mental health and spending time with his loved ones.”I simply couldn’t do that if I were to pursue being a footballer abroad. My mental health was suffering, and I didn’t realise until I’d spent time with family and realised what I was missing back home.”I went back to Madrid soon after and the manager agreed to let me go out on loan, but my mind was decided. I was ready to return home. My experiences were amazing, and I’m forever grateful for them, but evaluating what I truly believe to be best was to be back home.”After a long and arduous 2 years in Madrid, Ben finally returned to Melbourne. His life and career experiences have helped to shape him as a mentor as he manages Manningham’s under 16 side in the state leagues of Victoria, the same leagues he once played in at a similar age.”These days I love coaching and developing the next wave of players. Given my experience in Spain, I can play that big brother role for some of these younger guys, telling them what it takes to play in Europe and helping them to be the best they can be.”These days, Ben works in the family’s business of a winery, while continuing to manage and be involved in football at a coaching level. He hopes to one day move up in Victoria’s footballing world as a manager, but for now he’s content with life, and continues practicing his Spanish.Que viva la vida. TagsTransfersOpinionAbout the authorChris SermenoShare the loveHave your say
DANANG, Vietnam – Prime Minister Justin Trudeau says it shouldn’t have come as a surprise to anyone when Canada declined to sign an agreement-in-principle Friday on an updated Trans-Pacific Partnership trade deal.Trudeau’s decision to keep negotiating for a better deal in the 11-country pact led to the abrupt cancellation of a TPP leaders’ meeting on the sidelines of an APEC summit.His move created international headlines because foreign media reports had predicted TPP partners would reach an agreement when they gathered for the APEC event in Vietnam.But Trudeau says anyone who had paid closer attention would have noticed his signals all week that Canada would not be rushed into a TPP deal unless it was right for Canadians.Speaking to reporters today to close the APEC summit in Danang, Trudeau says the TPP trade ministers still made some progress by agreeing to several changes that moved the talks closer to a agreement.But Trudeau says despite the improvements there’s still more work to do, particularly when it comes to protecting Canada’s auto and cultural sectors.
BEIJING — Chinese President Xi Jinping has promised that the country will “never seek hegemony” even as it approaches the centre of the world stage.Xi gave a speech Tuesday to mark the country’s 40 years of reform and opening up.The address credited former leader Deng Xiaoping’s market reforms with saving the country from the brink of economic collapse following the tumultuous Cultural Revolution.Xi also expressed support for a multilateral trading system, but he did not directly address ongoing trade friction with the United States.China has been battling global scrutiny around its outsize economic influence. Xi assured in his speech that the country will not develop “at the expense of other countries’ interests.”The Associated Press
Colombo: Sri Lanka has expelled over 600 foreign nationals, including around 200 Islamic clerics, since the Easter suicide bombings blamed on a local jihadi group, a minister said Sunday. Home Affairs Minister Vajira Abeywardena said the clerics had entered the country legally, but amid a security crackdown after the attacks were found to have overstayed their visas, for which fines were imposed and they were expelled from the island. “Considering the current situation in the country, we have reviewed the visas system and took a decision to tighten visa restrictions for religious teachers,” Abeywardena said. Also Read – Saudi Crown Prince Salman ‘snubbed’ Pak PM Imran, recalled his private jet from US: Report”Out of those who were sent out, about 200 were Islamic preachers.” The Easter Sunday bombings that killed 257 people and wounded nearly 500 were led by a local cleric who is known to have travelled to neighbouring India and had made contact with jihadists there. The minister did not give the nationalities of those who have been expelled, but police have said many foreigners who have overstayed their visas since the Easter attacks were from Bangladesh, India, Maldives and Pakistan. Also Read – Iraq military admits ‘excessive force’ used in deadly protests”There are religious institutions which have been getting down foreign preachers for decades,” Abeywardena said. “We have no issues with them, but there are some which mushroomed recently. We will pay more attention to them.” The minister said the government was overhauling the country’s visa policy following fears that foreign clerics could radicalise locals for a repeat of the April 21 suicide bombings, which targeted three Christian churches and three luxury hotels. Sri Lanka has imposed a state of emergency since the attacks and given wide powers to troops and police to arrest and detain suspects for long periods. House-to-house searches are being carried out across the country looking for explosives and propaganda material of Islamic extremists.