PROFESSIONALISM CORNER
PROFESSIONALISM CORNER
Professionalism and the Transactional Attorney
STEVEN D . RUBIN
Practicing with professionalism is expected in all aspects of a lawyer ’ s work . We start with the most recent Florida Supreme Court decision on the topic , which identified the four sources of professionalism standards in Florida : The Florida Bar ’ s Oath of Admission , Creed of Professionalism , the Rules Regulating The Florida Bar , and Professionalism Expectations . See In Re : Code for Resolving Professionalism Referrals , 367 So . 3d 1184 ( Fla . 2023 ). Locally , we also abide by the Palm Beach County Bar Association ’ s Standards of Professional Courtesy and Civility and the Guidelines for Professional Conduct adopted by the Trial Lawyers Section of The Florida Bar . Although these sources may seem designed for the litigating lawyer , a transactional attorney who never enters a courtroom is also expected to practice and adhere to Florida ’ s professionalism standards .
Applicable to both litigation and transactional practice , the Florida Supreme Court and The Florida Bar outline lawyer professionalism in the Professionalism Expectations . Some of the Expectations originate from the ethical duties established by the Florida Supreme Court in the Rules Regulating The Florida Bar , and some are “ long-standing customs of fair , civil , and honorable legal practice in Florida .” In Re : Code for Resolving Professionalism
Referrals , 367 So . 3d at 1186 . These vital concepts of “ fairness ” and “ honor ” are echoed in the Creed of Professionalism , which provides that an attorney should “ adhere to the spirit as well as the letter ” of the code of ethics , and “ be guided by a fundamental sense of honor , integrity , and fair play .”
Whether in a business transaction or litigation , the line between unprofessional conduct and unethical conduct can be blurred . Indeed , Professionalism Expectations are cast in terms of “ must ” or “ must not ” where those expectations are coextensive with a lawyer ’ s ethical duty , while others are a recommended correct action of “ should ” or “ should not ” due to professional custom , not the Rules Regulating The Florida Bar . Id . at 1186 . For example , mandatory ethical duties may arise in the transactional context when the opposing unrepresented party in a business transaction is elderly and unsophisticated , and the terms of the transaction are very favorable to the attorney ’ s client . The attorney must explain to the opposing party the fact that the attorney is representing an adverse interest , and explain the material terms of the documents that the attorney has drafted for the client so that the opposing party fully understands their actual effect . See Florida Bar v . Bellville , 591 So . 2d 170 ( Fla . 1991 ). Determining whether the opposing party is unsophisticated or if such party understands the actual effect of the documents is sometimes not easy . I submit that the attorney practicing with professionalism will advise the opposing party multiple times in writing to obtain competent counsel to represent the opposing party ’ s interests before the opposing party signs any documents .
The following are some professionalism practice tips for the transactional attorney :
1 . Prepare a written fee agreement identifying the basis of the attorney ’ s fee and anticipated costs . If the opposing party to the transaction will be charged a fee or cost , obtain that party ’ s written consent to the proposed fee or cost well in advance of a closing .
2 . Appear on time for conference calls , virtual meetings , and signings . If you are unavoidably late , let everyone
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3 . When drafting documents and you have made changes to them , redline so the other side readily sees your changes .
4 . Do not promise a client or the other party that you can prepare a document or make changes to a proposed document by a certain date if you know you cannot . You should decline representation if you do not have the time to perform the requested task . If after you promise to meet a deadline but something unexpected has arisen , let your client and the other party know as soon as possible .
5 . Promptly respond to emails and telephone calls . Even if you have no new information to report , it is common courtesy to let the sending person know you received the email or phone call and when you may be substantively responding .
6 . Profane , abusive , discriminatory , foul , mocking , or belittling language is never acceptable . Always assume what you send or say may someday be mentioned in open court or read to the judge or jury .
7 . If the other party is unrepresented , recommend that party retain competent counsel for advice and consultation before a document is signed .
8 . If the parties have orally agreed to a provision in a proposed contract or addendum , draft it as close as possible to the oral agreement . If there are material differences in the draft compared to the oral understanding , they should be expressly noted .
9 . If there are documents to be signed , provide a draft of them to all parties in advance of the signing date .
10 . Abide by the Golden Rule : treat all participants in the transaction as you would want to be treated .