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Legal Systems of the USA


Legal Systems of the USA The Role and Regulation of the Lawyer in the US Legal System Tyne Florida Statutes section 540.08 No person shall publish, print, display or ... – PowerPoint PPT presentation

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Title: Legal Systems of the USA

Legal Systems of the USA
  • The Role and Regulation of the Lawyer in the
    US Legal System

The Role and Regulation of Lawyers in the U.S.
  • The adversary system necessarily requires
    parties to be represented by lawyers because the
    adversarial procedures are complicated.
  • But the high cost of hiring a lawyer means that
    many poor and middle class individuals are
    unrepresented in court, especially in family law

Lawyers in the U.S.
  • The number of lawyers in the U.S. has increased
    greatly increasing 100 between 1970 and 1990.
  • As of 2008, there were over 1,300,000 lawyers in
    the U.S.

Lawyers in the U.S.
  • Almost 75 of lawyers are in private practice.
  • Many practice alone of with one or two partners,
    but the large law firms (250 lawyers) are the
    fastest growing source of employment for lawyers.

Education of Lawyers
  • Historically in the U.S., legal education
    consisted of reading the law - - that is,
    reading common law cases in an apprenticeship
    with an experienced lawyer.
  • In the late 19th century, a campaign was begun to
    establish a uniform law school education
    requirement for entry into the profession.

Education of Lawyers
  • U. S. law school is 3 years in duration.
    However, law schools require a 4 year
    undergraduate degree to be admitted so the total
    course study is 7 years.

Law Schools in the USA
  • In 2005, there were approximately 200 ABA law
    schools accredited by the American Bar
    Association, a volunteer private organization of
    lawyers, with over 140,000 law students and
    there were over 40,000 graduates.

U.S. Law Schools
  • The U.S. Law School Experience
  • No official curriculum is mandated
  • 1st year traditionally includes constitutional
    law, civil procedure, contracts, property,
    criminal, torts and legal writing.
  • Case law method of instruction
  • Casebook contains judicial opinions on the
  • Written essay examinations based on complex fact
  • Summer internships

Advanced Law Degrees
  • 98 of lawyers will have a Juris Doctors degree,
    but there are advanced degrees beyond the typical
    3 year degree.
  • U.S. law school graduates may seek specialized
    Masters in law (L.L.M.) degrees in such
    specialties as taxation, finance, and
    intellectual property. Normally 2 years.
  • Professors of law sometimes seek the more
    advanced degree of Doctor of Science of Law

Advanced Degrees (continued)
  • A common advanced degree program at some U.S. law
    schools is offered for foreign law school
    graduates seeking an L.L.M. in comparative law.
  • With that degree, a foreign lawyer may be
    eligible to take the bar exam and be admitted to
    the bar in certain of the states in the U.S.

Admission to the Bar
  • Admission to the practice of law - - or
    admission to the Bar as it is described - - is a
    requirement before you cam work as a private
  • Admission is controlled by the states, not the
    federal government.

The Bar Exam
  • You must pass a bar examination to be admitted
    to the Bar of a particular state. The exam is
    generally given twice a year
  • Spread over 2 or 3 days
  • Multiple choice and essay questions
  • Each state sets its own passing score

Interstate Practice
  • Because the states regulate lawyers, a lawyer has
    no right to practice law in a state without being
    admitted to that states bar, including taking
    the states bar exam.
  • Some states admit lawyers without a new bar exam
    if the lawyer has practiced in another state for
    a given time period, usually 5 to 7 years.

Interstate Practice (continued)
  • A lawyer from another state may take part in a
    trial in a state in which she is not admitted if
    the judge gives special permission and the lawyer
    works with a local lawyer.

Federal Practice
  • Although federal law and procedure is uniform
    nationally, there is no one central place for a
    lawyer to obtain a certification to practice in
    federal court.
  • Lawyers must be admitted to the bar of a state
    and apply to the U.S. District Court in that
    state to be admitted to practice in that court.

Regulation of Lawyers
  • Lawyers are regulated by the states, usually
    through the state supreme court. The supreme
    courts adopt ethics codes which have the force of
    law and which regulate all aspects of a lawyers

Rules of Professional Responsibility
  • Codes of professional responsibility (or
    ethics) are based on model codes prepared by the
    American Bar Association, a private voluntary
    lawyer organization. Each states code is unique
    and, while codes may cover similar subjects,
    there is great difference in the details.

Rules of Professional Responsibility
  • Confidentiality
  • Model Rule 1.6 states what is required
  • A lawyer shall not reveal information
    relating to representation of a client unless the
    client consents after consultation, except for
    disclosures that are impliedly authorized in
    order to carry out the representation.

Professional Responsibility
  • Confidentiality
  • Model Rule 1.6 has important exceptions.
  • Lawyers may reveal confidential information if
    the lawyer believes it necessary to prevent the
    client from committing a criminal act that the
    lawyer believes is likely to result in imminent
    death or substantial bodily harm.

Professional Responsibility
  • Some states require lawyers to disclose
    information necessary to prevent life threatening
    or criminal conduct and most permit such

Professional Responsibility
  • Confidentiality
  • Florida Rule 4-1.6 (Confidentiality) states
  • (a) Consent Required to Reveal Information.
    A lawyer shall not reveal information relating to
    representation of a client except as stated in
  • (b) . . . unless the client gives informed

Professional Responsibility
  • (b) When Lawyer Must Reveal Information. A lawyer
    shall reveal such information to the extent the
    lawyer reasonably believes necessary
  • (1) to prevent a client from committing a crime
  • (2) to prevent a death or substantial bodily
    harm to another.

  • The New Jersey rule
  • (b) A lawyer shall reveal such information to
    the proper authorities, as soon as, and to the
    extent the lawyer reasonably believes necessary,
    to prevent the client or another person
  • (1) from committing a criminal, illegal or
    fraudulent act that the lawyer reasonably
    believes is likely to result in death or
    substantial bodily harm or substantial injury to
    the financial interest or property of another
  • (2) from committing a criminal, illegal or
    fraudulent act that the lawyer reasonably
    believes is likely to perpetrate a fraud upon a

Confidentiality Hypothetical
  • Hypothetical Question
  • Assume that you are a U.S. lawyer working for
    Super Leather Corp., a company that processes
    leather for shoes. The processing produces toxic
    chemicals which have been shown in laboratory
    studies to cause cancer in mice. The president
    of Super Leather tells you that the companys
    factory has a treatment process which eliminates
    the chemicals, but over the last month it has not
    worked properly.

Hypothetical (continued)
  • Toxic chemicals are being released into a lake
  • that is a source of drinking water for a town.
  • The release of the chemicals violates
  • environmental laws but does not violate
  • criminal laws.

Hypothetical (continued)
  • Questions
  • Under Model Rule 1.6, may you disclose the
    release of chemicals to the government? Why did
    you make your decision?
  • What if you were a Florida lawyer, may you
    disclose? Must you disclose?
  • What about New Jersey?

Professional Responsibility
  • In addition to regulating a lawyers duties to
    clients, the rules of professional responsibility
    also regulate a lawyers conduct in court and, to
    some extent a lawyers private conduct.

Professional Misconduct
  • Model Rule 8.4 states
  • It is professional misconduct for a lawyer to
  • (a) violate or attempt to violate the Rules of
    Professional Conduct . . .
  • (b) commit a criminal act that reflects
    adversely on the lawyers honesty,
    trustworthiness or fitness as a lawyer in other
  • (c) engage in conduct involving dishonesty,
    fraud, deceit or misrepresentation

Professional Misconduct
  • Model Rule 8.4 (continued)
  • (d) engage in conduct that is prejudicial to the
    administration of justice
  • (e) state or imply an ability to influence
    improperly a government agency or official or
  • (f) knowingly assist a judge or judicial official
    in conduct that is a violation of applicable
    rules of judicial conduct or other law.

Professional Misconduct
  • Rule 8.4 covers a wide range of conduct and
    has been interpreted broadly. For example, as to
    subparagraph (b), many kinds of illegal conduct
    has been found by some states to reflect
    adversely on fitness to practice law, such as
    offenses involving fraud and the offense of
    willful failure to file an income tax return.

Professional Misconduct
  • In addition, this rule can be construed to
    include offenses concerning some matters of
    personal morality, such as adultery and
    comparable offenses, that have no specific
    connection to fitness for the practice of law.

Professional Misconduct
  • In addition, as to paragraph (d), a lawyer
    who, in the course of representing a client,
    knowingly manifests by words or conduct, bias or
    prejudice based upon race, sex, religion,
    national origin, disability, age, sexual
    orientation or socioeconomic status, has been
    found to violate paragraph (d), when such actions
    are prejudicial to the administration of justice.

Candor to the Court
  • Model Rule 3.3 also imposes specific duties to
    the court
  • A lawyer shall not knowingly(a) make false
    statement of material fact or law to a tribunal

Candor to the Court (continued)
  • (b) fail to disclose to the tribunal legal
    authority in the controlling jurisdiction known
    to the lawyer to be directly adverse to the
    position of the client and not disclosed by
    opposing counsel or
  • (c) offer evidence that the lawyer knows to be

Candor to the Court
  • Rule 3.3 sets forth the special duties of
    lawyers as officers of the court to avoid conduct
    that undermines the integrity of the judicial
    process. A lawyer acting as an advocate in an
    adversary proceeding has an obligation to present
    the client's case with persuasive force.
    Performance of that duty, however, is qualified
    by the advocate's duty of candor to the court.

Candor to the Court
  • Consequently, although a lawyer in an
    adversary proceeding is not required to present
    an impartial explanation of the law or to vouch
    for the evidence submitted in a cause, the lawyer
    must not allow the tribunal to be misled by false
    statements of law or fact or evidence that the
    lawyer knows to be false.

Candor to the Court
  • Under paragraph (a) legal argument based on a
    false representation of law constitutes
    dishonesty toward the court. A lawyer is not
    required to make a disinterested presentation of
    the law, but must recognize the existence of
    applicable statutes and cases. Furthermore, as
    stated in paragraph (b), an advocate has a duty
    to disclose directly adverse authority in the
    controlling jurisdiction that has not been
    disclosed by the opposing party. The underlying
    concept is that legal argument is a discussion
    seeking to determine the legal premises properly
    applicable to the case.

Candor to the Court
  • Further, as stated in paragraph (b), a lawyer
    has a duty to disclose directly adverse authority
    in the controlling jurisdiction that has not been
    disclosed by the opposing party. The underlying
    concept is that legal argument is a discussion
    seeking to determine the law properly applicable
    to the case

Unauthorized Practice of Law
  • Nonlawyers are generally prohibited from
    practicing law by state law.
  • The purpose in theory is to protect the public
    from legal representation by unqualified persons.
  • In practice, many things considered practicing
    law can be done by nonlawyers, such as real
    estate agents preparing deeds and accountants
    giving tax advice.

Lawyer Advertising
  • Lawyers advertise in the U.S., especially
    lawyers seeking to represent persons injured on
    the job, by medical malpractice, by a harmful
    product, or in an accident.
  • U.S. Supreme Court declared many state
    restrictions on lawyer advertising
    unconstitutional as a violation of the lawyers
    right of free speech.

Lawyer Advertising
  • The following is the text of an internet
    advertisement directed at lawyers
  • Looking for more personal injury cases?
  • TV advertising reaches people with serious
    injuriesIN BED at home or in the hospital where
    they don't have access to the Internet or Yellow
  • Does your advertising stand out?

Lawyer Advertising
  • 1-800-HURT-911 can get you 14 times more calls!
  • With 1-800-HURT-911 you can Dominate lawyer
  • Exclusive territory for your entire TV market
    guarantees you success!
    IT'S GONE!

Attorneys Fees
  • The fees charged by lawyers are a matter of
    contract between the client and the lawyer, but
    all legal fees are regulated by the states.
    Three general types of fees
  • Contingent fees. Normally charged in tort
    lawsuits. Capped at 25 to 30.
  • Hourly billing based on time involved in
  • Flat fees generally for more routine matters.

Attorneys Fees
  • Florida RULE 4-1.5
  • (a) Illegal, Prohibited, or Clearly Excessive
    Fees and Costs. An attorney shall not enter into
    an agreement for, charge, or collect an illegal,
    prohibited, or clearly excessive fee or cost, or
    a fee generated by employment that was obtained
    through advertising or solicitation not in
    compliance with the Rules Regulating The Florida
    Bar. A fee or cost is clearly excessive when

Attorneys Fees
  • (1) after a review of the facts, a lawyer of
    ordinary prudence would be left with a definite
    and firm conviction that the fee or the cost
    exceeds a reasonable fee or cost for services
    provided to such a degree as to constitute clear
    overreaching or an unconscionable demand by the
    attorney . . . .

Attorneys Fees
  • Contingent Fees Florida Rule 4-1.5
  • (f) Contingent Fees. As to contingent fees
  • (1) A fee may be contingent on the outcome of the
    matter for which the service is rendered . .
    . . A contingent fee agreement shall be in
    writing and shall state the method by which the
    fee is to be determined, including the percentage
    or percentages that shall accrue to the lawyer in
    the event of settlement, trial, or appeal . . .

  • Florida Rule 4-7.4
  • (a) Solicitation. A lawyer shall not solicit
    professional employment from a prospective client
    with whom the lawyer has no family or prior
    professional relationship, in person or
    otherwise, when a significant motive for the
    lawyers doing so is the lawyers pecuniary gain.
    A lawyer shall not permit employees or agents of
    the lawyer to solicit in the lawyers behalf .
    . . . The term "solicit" includes contact in
    person, by telephone, telegraph, or facsimile, or
    by other communication directed to a specific
    recipient . . . .

Regulation of Misconduct
  • The Florida Bar v. Barrett
  • What are the facts?
  • What are the main issues before the court?
  • What did the court hold?

Florida Bar v. Barrett
  • What scope of review and standard of review did
    the court apply?
  • Was there more than one?

Florida Bar v. Barrett
  • Barrett challenged the findings of fact of the
  • Florida Supreme Court held that absent a
    showing that the referees finding are clearly
    erroneous or lacking in evidentiary support, this
    Court is precluded from reweighing the evidence .
    . . . Page 8 of 11.

Florida Bar v. Barrett
  • Barrett challenged the recommended discipline of
    one year suspension and the Bar sought to
    increase the punishment to complete disbarment.
  • What precedent did the Court follow in its ruling
    to disbar Barrett?

Representing Clients Who are Poor
  • In criminal cases, criminal defendants who are
    indigent (poor) have a constitutional right to an
    effective lawyer without cost to the defendant.
  • Public defenders government employees exist
    in the federal and state systems to represent
    indigent defendants.

Representing the Poor
  • In civil cases, there is no constitutional right
    to a lawyer.

Representing the Poor
  • The U.S. government and some states provide
    funding for legal aid offices around the country.
    Lawyers in these offices provide legal services
    for the poor in civil cases. Only 20 of the
    potential clients can be served.

Pro Bono Legal Assistance
  • American private lawyers have a tradition and
    ethical duty to provide service pro bono
    publico free legal services for the public

Pro Bono
  • Model Rule 6.1 states that a lawyer
  • should aspire to render at least fifty (50)
    hours of pro bono publico legal services per
    year and should provide a substantial majority
    of such services to persons of limited means or
    to organizations that are designed primarily to
    assist such individuals.
  • But pro bono is not mandatory.

Pro Bono
  • In Florida, each year lawyers must report to
    the Supreme Court the amount of pro bono service
    that they provide and the amount of money
    contributed to legal aid groups.

Pro Bono
  • In 2006, 26,000 Florida lawyers provided a
    total of 1,110,000 hours of free pro bono legal
    services. But only 52 of Florida lawyers
    reported that they provided pro bono services.

The Legal Systems of the United States of America
  • 16 May 2011
  • Judge William Van Nortwick

  • Tyne v. Time Warner Entertainment Co., L.P.

Tyne v. Time Warner
  • Questions to ask yourself as we review the
    documents of the case
  • What are the laws on which the plaintiffs are
    basing their claims?
  • Are the laws state or federal?
  • What is the basis of the federal courts
  • What are the arguments of the parties as to the

Tyne v. Time Warner
  • Procedural Information
  • A complaint is the document filed by a
    plaintiff to start a lawsuit. It must state the
    important facts on which the lawsuit is based and
    usually also states the law on which the lawsuit
    is based.
  • The request for a jury trial is usually stated in
    the complaint

  • Procedural Information (continued)
  • 3. Before the trial, the trial judge can grant
    what is called summary judgment if, after
    discovery (investigation) by the parties, there
    are no material factual disputes.
  • In that event, the trial judge can decide the
    case on the law.
  • If the facts are in dispute, a jury must decide
    the case.

  • Tyne v. Time Warner Entertainment Co., L.P.,
    is a
  • lawsuit that was filed in federal court in
  • Florida. The case arose from the Time
  • motion picture, The Perfect Storm. The
  • Storm is based on the events that occurred
  • October 1991 when the Andrea Gail, a
  • fishing boat fishing for swordfish (pesce
    spada), was
  • caught in a severe storm off the
  • coast of Massachusetts and was lost at sea.

  • The plaintiffs are the surviving spouse and
    children of Frank William Billy Tyne, the
    deceased captain of the Andrea Gail, and the
    surviving child of Dale R. Murphy, a deceased
    crew member of the Andrea Gail.
  • The plaintiffs filed a lawsuit asserting
    claims under Florida law for (1) unauthorized
    commercial appropriation of the deceaseds and
    plaintiffs likeliness in violation of Florida
    Statute section 540.08 and (2) common law
    invasion of privacy under Florida common law.

  • Florida Statutes section 540.08
  • No person shall publish, print, display or
    otherwise publicly use for purposes of trade or
    for any commercial or advertising purpose the
    name, portrait, photograph, or other likeness of
    any natural person without the express written or
    oral consent to such use given by
  • Such person or . . . .
  • (c) If such person is deceased, . . . by any
    one from among a class composed of her or his
    surviving spouse and surviving children.

  • Florida Statutes section 540.08 (continued)
  • (2) In the event the consent required in
    subsection (1) is not obtained, the person whose
    name, portrait, photograph, or other likeness is
    so used, . . . or, if the person whose
    likeness is used is deceased, any person . . .
    having the right to give such consent . . . may
    bring an action to enjoin such unauthorized
    publication, printing, display or other public
    use, and to recover damages for any loss or
    injury sustained by reason thereof, including an
    amount which would have been a reasonable
    royalty, and punitive or exemplary damages.

  • Florida Statutes section 540.08 (continued)
  • (3) The provisions of this section shall not
    apply to
  • (a) The publication, printing, display, or use of
    the name or likeness of any person in any
    newspaper, magazine, book, news broadcast or
    telecast, or other news medium or publication as
    part of any bona fide news report or presentation
    having a current and legitimate public interest
    and where such name or likeness is not used for
    advertising purposes
  • (b) The use of such name, portrait, photograph,
    or other likeness in connection with the resale
    or other distribution of literary, musical, or
    artistic productions or other articles of
    merchandise or property where such person has
    consented to the use of her or his name,
    portrait, photograph, or likeness on or in
    connection with the initial sale or distribution
    thereof . . . .

Tynes Path in the Courts
  • Federal

US Supreme Court
Florida Supreme Court
11th Circuit Court of Appeal In Atlanta
District Courts Of Appeal
Federal District Court in Tampa
Trial Court
Tyne v. Time-Warner
  • Lets go to the movies!
  • We will watch parts of the movie so that you
    will better understand the plot and the
    allegations in the lawsuit.

Tyne v. Time Warner
  • The Second Amended Complaint.
  • 1. Paragraph 1 contains allegations to establish
    the Federal District Courts jurisdiction under
    the federal diversity statutes.

Tyne v. Time Warner
  1. Paragraph 2 alleges facts that establish venue
    in the Federal District Court in Orlando,
  2. Paragraph 3 alleges a basis for the federal
    court in Florida having personal jurisdiction
    over the defendants. Notice that defendants are
    alleged to be doing business in Florida.

  • Starting with paragraph 5 through paragraph
    20, the complaint makes detailed allegations
    about each plaintiff and defendant. Now you know
    all about the players.

  • In paragraphs 21 through 48, the plaintiffs
    set out what they call the Common Factual
    Allegations, that is, the allegations that will
    relate to all 14 counts of the complaint. This
    is the plaintiffs story. Each count represents
    a separate claim of either a commercial
    misappropriation under section 540.08 or a common
    law violation of privacy as to one of the
    individual plaintiffs.

  • Paragraphs 49 through 105 set out each of the
    14 counts against the defendants. These counts
    are mostly conclusions of law based on the facts
    alleged in paragraphs 21-48.

  • The defendants filed what is termed the
    answer to the complaint. There, among other
    things, the defendants asserted
  • that their acts are protected as speech by the
    First Amendment of the U.S. Constitution and
  • that the decedents names and likenesses were not
    used for commercial or advertising purposes and,
    therefore, the plaintiffs cold not make valid
    claims under sections 540.80(1) (3).

Tyne v. Time Warner
  • Time-Warner asked the trial court to grant
    summary judgment in its favor. Under both state
    and federal procedure, if there are no disputed
    issues of fact, the judge can decide the case
    based solely on the law.
  • That is what occurred in this case. The judge
    did not submit the case to a jury because the
    judge found that there were no disputed facts for
    the jury to decide.

  • In Tyne v. Warner, the federal district court
    granted summary judgment in favor of Time Warner.
  • Lets examine the judges order.
  • The order was appealed to the 11th Federal
    Circuit Court of Appeals in Atlanta.

  • The order was appealed to the 11th Federal
    Circuit Court of Appeals in Atlanta. That court
    hears appeals from federal trial courts in the
    states of Alabama, Georgia and Florida.

Tyne The Briefs on Appeal
  • The plaintiffs (who are called appellants on
    appeal) appealed the case to the 11th Circuit
    U.S. Court of Appeals. Examine the Briefs
  • What issues are raised by the plaintiffs on
  • Issue I concedes that there is no valid claim IF
    film is protected by First Amendment. Page 24 of
    Appellants Initial Brief.

Tyne The Briefs on Appeal
  • Note the appellants suggested certification to
    Florida Supreme Court. Page 26 of Appellants
    Initial Brief.
  • Appellants argue that The Perfect Storm is not
    protected speech because First Amendment does not
    protect knowing or reckless false speech (pages
    26-29) or fiction disguised as truth (pages 29-34)

Tyne the Briefs
  • Issue II argues that the movie does not qualify
    for newsworthy doctrine under section 540.08
    because of substantial and undisclosed
  • How did appellants deal with the precedent relied
    upon by trial court, Loft v. Fuller? (See
  • pages 45-48)

  • On appeal, the 11th Circuit Court of Appeals
    concluded that it was uncertain as to the
    application of section 540.08 to the case and,
    thus it certified the following question of law
    to the Supreme Court of Florida
  • To what extent does Section 540.08, Florida
    Statutes apply to the facts of this case?

  • The parties made the same arguments they had
    made to the 11th Circuit.
  • The Florida Supreme Court set the case for
    oral argument in which the lawyers for both the
    plaintiffs and Time Warner made arguments in
    support of their clients positions on the
    application of section 540.08 to the case.
  • In oral argument, the justices normally ask
    questions of the lawyers to better understand the
  • Lets watch the arguments. Notice the
    importance of precedent.

  • In their opinion, the Florida Supreme Court
    rewrote the certified question

  • The Florida Supreme Courts holding was
  • . . .we answer the rephrased certified
    question in the negative and hold that the term
    commercial purpose as used in section 540.08
    (01) does not apply to publications, including
    motion pictures, which do not promote a product
    or service.
  • Lets examine their opinion and the dissent.