Midterm Review (Module 1-5)

In addition to these true courts, the Florida Constitution also allows for government "agencies" which can serve in quasi-legislative, quasi-executive, and quasi-judicial capacities. That is why you may hear of other types of "judges" such as a...

"workers compensation judge" - these are more akin to a quasi-judicial officer than a judge.

Knowing how to research in print can have a number of benefits:

- It can save you, your firm, and your clients a lot of money if you have easy access to a public law library (like the one at FAMU Law School in downtown Orlando). Westlaw and Lexis-Nexis are not cheap. Public libraries are! - You may be able to access print text which is not available on-line (or available but not part of the on-line research subscription you've bought.) - You may find that you like working in the books better than web-based legal research!

There is limited interplay between the federal courts and state courts...

- they maintain separate courthouses, separate judges, and most attorneys choose to primarily practice in one or the other systems. Typically, the only commonality between the two systems is at the level of the United States Supreme Court - which can hear appeals from both federal and state courts. Occasionally, federal courts will also have jurisdiction over a state law matter - but that is an unusual situation.

It may seem that the practice of law is an ethical minefield. But once attorneys and paralegals have an understanding of what the rules prohibit, it is not hard to stay in compliance. There are certain ethical rules which either due to their severity or their commonality, aspiring attorneys and paralegals should pay particular attention to:

1) Client Confidentiality 2) Trust Accounting 3) Attorney Advertising 4) Unlicensed Practice of Law 5) General Professionalism

In Florida, the establishment and jurisdiction of our state court system is found in Article V of the Florida Constitution. It sets forth a system which has:

1) County Courts in every one of Florida's 67 counties which serve as trial courts over minor criminal matters and small civil cases, and 2) Twenty (20) Circuit Courts which may include one or more counties and serve as trial courts over higher level criminal and civil cases, as well as serving in an appellate capacity in limited instances, and 3) Five District Courts of Appeal which serve as appellate courts for their respective Circuit Courts; and 4) The Florida Supreme Court which is the highest appellate court in the State and is also vested with final regulatory authority over lawyers and judges.

Attributed to both the concepts of a tripartite system and federalism, the American judicial branch has two separate and distinct court systems:

1) the federal system and 2) the fifty individual state systems. This bifurcated judicial system divides jurisdiction (meaning authority to consider and rule on legal issues) between federal and state courts.

A few reminders of REALLY important legal writing tips though...

Do your research thoroughly and cite it properly! Anyone can write an opinion paper - but a legal scholar will write a solid paper stating the applicable law and clearly applying it to the facts. Organize your work! Use structured sentences and paragraphs. Use headings, as appropriate. Remember to "FIRAC" your caselaw - Facts, Issue, Rule, Analysis, Conclusion. If you've forgotten FIRAC, here is a refresher video on the "IRAC" portion Use proper grammar and proofread for typos. Your reader shouldn't get distracted by mistakes, or worse, mistrust your writing because of the mistakes. Use the legal citation forms and signals as established in the Bluebook Uniform System of Citations. Remember, the front blue pages of Bluebook provide the most common citation forms. There is also an index at the back of Bluebook to lead to more unique citation forms.

Even persons who are not directly regulated by legal ethical rules may face penalties for violating legal ethical rules.

For example, a paralegal may not be directly subject to the Bar ethical rules but the attorney he/she works for is subject to them and the actions of the paralegal can be imputed to that attorney. So if a paralegal violates a Bar ethical rule and get the attorney and law firm in trouble with the Bar, that paralegal may lose their job or face other disciplinary action from their employer. Finding a new paralegal job may be especially tough if word spends about the paralegal's ethical violation. Take a look at this article about one paralegal who is infamous for ethical malfeasance!

There may also be legislative rules, separate and apart from Bar rules, which penalize non-attorneys for ethical violations.

For example, in Florida, section 454.23, Florida Statutes prohibits the Unauthorized Practice of Law and imposes both fines and jail time on people who chose to engage in the unauthorize practice of law: Any person not licensed or otherwise authorized to practice law in this state who practices law in this state or holds himself or herself out to the public as qualified to practice law in this state, or who willfully pretends to be, or willfully takes or uses any name, title, addition, or description implying that he or she is qualified, or recognized by law as qualified, to practice law in this state, commits a felony of the third degree, ...

Every state also has a state constitution which is the foundation to that state's government (as allowed by Article IV of the U.S. Constitution.) But such state constitutions cannot supersede the U.S. Constitution.

For example, when a number of states incorporated anti-gay marriage provisions into their state constitutions, these state-constitutional provisions were struck down and voided by the U.S. Supreme Court as violating the 14th Amendment Due Process and Equal Protection clauses of the U.S. Constitution. See Obergefell v. Hodges, 576 U.S. ___ (2015).

Constitutional Rights:

Most of the individual rights that protect us in a criminal proceedings come from the first ten amendments to the United States Constitution. These amendments are fondly known as the Bill of Rights. Most of these rights which relate to criminal justice are procedural in nature and will be discussed more on the next page.

Obedience to the Rule of Law:

The "rule of law" refers to the concept that no one is above the law. All persons have a duty to obey the law. All persons have a duty to know the law and ignorance of the law is no defense to the commission of a crime.

GENERAL PROFESSIONALISM

The Florida Bar has a number of rules requiring professionalism. Among these are requirements that attorneys practice with integrity and civility. There are also a number of rules requiring attorneys to represent their clients with competence, honestly, and diligence.

But secondary sources can be used to supplement your arguments (or when you just do not have any primary law on your side.)

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However, less common documents, like law reviews and journals, treatises, legislative materials, etc. may not be within the terms of these search engines. In those situations, there are other reputable on-line resources which can be used. Law school websites and government websites are often very useful for these unique searches.

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Judges are also subject to ethical regulations, both while running for the judicial office (through judicial election rules) and while on the beach (through the judicial canons.)

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The federal court system is composed of 94 federal trial courts, called as federal district courts, and eleven appellate courts, called federal district courts of appeal. At the top of the federal court system is the United States Supreme Court.

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Keep legal writing simple...

Use short sentences Avoid unnecessary words Use specific concrete terms

Basic Considerations...

Use topic sentences Use active voice Avoid noise words Use front-loaded sentences

The distinction between primary and secondary sources is important to researching and writing...

about the law.

Federal courts have jurisdiction over matters arising from federal law. This includes many topics, including others... There are also limited situations in which a federal court may have jurisdiction over a state issue.

bankruptcy, immigration, admiralty, and international law.

Even some paralegals can become subject to the local Bar's ethical rules. In Florida, paralegals who opt to become Florida Bar Certified Paralegals (a bit more prestigious and employable than paralegals who do not have this creation) will...

become subject to several of the Florida Bar's ethical rules.

Keep in mind that legal writing is all about the research - it is not about the author's hopes or opinions. So you need to...

conduct thorough legal research before starting the legal writing assignment.

One Constitutional concept which was highly debated during the drafting of the Constitution, was a major element leading to the Civil War, and is still debated today, is Federalism. Federalism is the division of...

governance rights and responsibilities between the federal government and the respective state governments.

The American Government, despite its shortcomings, is one of the most successful government systems in the world if evaluated based upon the country's stability and prosperity. And it all evolved from...

one very important document, the United States Constitution.

Primary sources are...

sources of law such as constitutions, statutes, codes, and caselaw.

Every one of the fifty states also has a state court system which has jurisdiction over most state issues. The setup of the state courts systems is not uniform. Typically, the establishment of a state's court system is found in...

that state's constitution and further implemented through that state's legislative statutes and court rules.

In Florida, the final authority for disciplining attorneys, judges, and certified paralegals rests with the Florida Supreme Court. However, the Florida Supreme Court is very busy and so has delegated most of the disciplinary process over attorneys and certified paralegals to...

the Florida Bar. Similarly, most of the disciplinary proceedings for judges have been delegated to Florida Judicial Qualifications Committee.

Another principle of the Constitution is that our government, both federal and state, is composed of representatives elected by the people. In fact, a primary reason for the American Revolution was the American colonists' anger at "taxation without representation" by Great Britain. Therefore...

the Founding Fathers ensured that any American government would be for the people and by the people. There are numerous provisions throughout the Constitution describing election requirements and election processes for a variety of government officials.

Primary legal sources are resource that are...

the law itself. Examples of primary sources are Constitutions, legislative codes, judicial opinions and administrative regulations. These are relatively exclusive.

Secondary sources are not the law itself but rather explanations of the law, such as...

treatises, journals, legal encyclopedia. Whenever possible, you want to cite primary sources in your legal writing.

In most jurisdictions, practicing attorneys are subject to all of the ethical regulations of that jurisdiction's Bar. Similarly...

visiting attorneys and suspended attorneys must also adhere to all applicable Bar ethical rules.

In America, we have a tripartite system of governance at the federal and the state level. This is known as the "separation of powers" between the legislative, judicial, and executive branches of government. Each of these branches has certain enumerated rights and responsibilities under the Constitution (and more as interpreted by caselaw) which should not be interfered with or usurped by another branch. The respective dates are...

-The Legislative Branch is tasked with writing the laws. At the federal level, this branch is The Congress. At the state level, this branch is the state legislature. -The Judicial Branch is tasked with interpreting the laws. At the federal level, this branch is the federal courts. At the state level, this branch is the state court systems. The U.S. Supreme Court is the highest authority of this branch. -The Executive Branch is tasked with enforcement of the law. At the federal level, the head of this branch is the President. At this state level, the head of this branch is the Governor.

ATTORNEY ADVERTISING Fla.Bar.Rules found in Section 4

Advertising and solicitation are treated differently by most ethical rules. Advertising - the general public announcement of legal services available for hire is allowed, albeit with restrictions. However, solicitation - the targeting of a particular person by a law firm in an attempt to persuade that person to hire the law firm, is mostly prohibited. The advertising rules apply to all forms of communication including any print or electronic forum, including newspapers, magazines, brochures, flyers, television, radio, direct mail, electronic mail, and Internet, including banners, pop-ups, websites, social networking, and video sharing media. No advertising may be deceptive or inherently misleading. So no advertising can contain a factually or legally untrue statement, nor omit necessary information, nor imply the existence of a nonexistant fact. Similarly, advertising cannot predict a successful result or compare the attorney to other attorneys. There are a number of other specific rules too.

Pursuit of Justice:

At the heart of our study of criminal law is the search for justice. Common Law does not define justice. Statutes do not define justice. Societal views of morality define justice. Criminal common laws and criminal statutes just reflect societal views of right and wrong. These laws then define and regulate the actions which society deems wrong.

CLIENT CONFIDENTIALITY RULES FOUND IN Fla.Bar.Rule 4.1-6

In a nutshell, these rules generally prohibit an attorney from revealing "information relating to representation of a client" except if the client consents to the disclosure or in other limited circumstances. These circumstances include when a lawyer must reveal confidential information - which is limited to when the lawyer believes it necessary to prevent the client from committing a future crime or to prevent a death or substantial bodily harm (to the client or to someone else.) A lawyer may reveal confidential information if the lawyer believes it necessary to: 1) serve the client's interest (unless the client specifically says not to reveal it,) 2) for the lawyer to defend him or herself, or 3) to determine conflicts of interest when the lawyer is switching law firms. The rule also requires lawyers to minimize the extent of the revealed confidentiality to only that information which is necessary.

UNLICENSED PRACTICE OF LAW RULES FOUND IN Fla.Bar.R. Section 10

In addition to the Florida statutory provisions from the last page, the Florida Bar also has rules against the unauthorized practice of law. These rules repeat the prohibition against persons practicing law unless they are licensed by the Florida Bar. This includes attorneys visiting from other jurisdictions (unless they are allowed by a court to practice in a specific case), suspended or disbarred attorneys, paralegals and other non-attorneys. However, paralegals may work under the supervision of a Florida Bar attorney and perform specifically delegated substantive legal work for which that attorney is responsible. Also, persons may assist (and except pay) for typing in the blanks on certain legal forms which have been approved by the Florida Supreme Court or provide strictly typing services. But they may not give legal advice or practice law in any way.

Classification of Crime:

In most jurisdictions crimes are classified by the type of penalty you receive. In Florida, as in most jurisdictions, crimes are divided into felonies and misdemeanors. Felonies tend to be more serious crimes which are tried in state circuit courts and federal district courts. Misdemeanors tend to be less serious crimes, such as violations of local government ordinances, and tried in state county courts. Felonies: Capital Felonies: a crime for which the convicted can be executed. Life Felonies: a crime for which the convicted must receive life in prison. Possibility of Life Felonies: a crime for which the convicted can receive life in prison. 1st Degree Felonies: a crime for which the convicted can receive a maximum of 30 years in prison. 2nd Degree Felonies: a crime for which the convicted can receive a maximum of 15 years in prison. 3rd Degree Felonies: a crime for which the convicted can receive a maximum of five years in prison. Misdemeanors: 1st Degree: a crime for which the convicted can receive a maximum of one year in jail 2nd Degree: a crime for which the convicted can receive a maximum of 60 days in jail

Outline before you write...

Introduction Statement of Facts Issue Rule of Law Analysis/ Application

Most jurisdictions also use the rules of criminal procedure to ensure that the criminal justice system:

Is Fair Is Efficient Is Effective Provides Justice Further, most jurisdictions seek to use the sentencing aspects of the rules of criminal procedures to prevent and deter crime, to rehabilitate criminals, and control criminals who pose a threat to the public.

How to IRAC a law case...

Issue- What is this case about? Summarize this in one sentence. Rule- This is not the ruling. What principles is this case looking at? What are they citing? Any precedents or past rulings that guide the conclusion. Analysis- 3-5 sentences that apply the facts to the rules and then draw one conclusion. This is the meat of the IRAC. This is where you think through all the options and alternatives. Conclusion- One sentence that summarizes the case and the holding.

While most lay people confuse these two areas of confinement, there is a definite difference between jail and prison:

Jails are run by a specific county. Jails hold individuals awaiting trial and individuals who have been sentenced to a year or less of incarceration. Prisons are run by the state. Prisons only hold individuals who have been sentenced to a period of incarceration of at least one year and one day (over a year).

The System: There is a criminal justice system at both the federal and state level. Both the federal and state systems have similar actors:

Law Enforcement (ie. police, sheriff, department of justice) Courts and Court Personnel (such as judges, state attorneys, public or private defenders) Correctional System (jails, state prisons, federal prisons)

overview of the editing and revision process..

Print the document and reread your instructions Look over the document Is the organization of the document readily apparent, without actually reading it? Do all paragraphs contain a topic or transition sentence? Does the discussion or argument section begin with a thesis paragraph? Does each paragraph contain facts or law to support your position? Identify the verbs and eliminate forms of the verb "to be". Place transition words or phrases between the sentences and paragraphs. Does opening of document clearly and concisely introduce the topic of your writing? Reread the conclusion. Does it clearly and concisely conclude your document.

The practice of criminal law relies on a unique set of rules of procedure known as the rules of criminal procedure. While the language and form of these rules varies between the federal government and the states and from state-to-state, there are many commonalities to these rules:

Rules of criminal procedure serve two primary purposes: To protect individual rights against government intrusion, and To govern the process by which adjudication of guilt and innocence is reached.

The BlueBook Rule 5.3- Use of the Ellipses

Shows omission of words from quoted language. Three periods separated by spaces and set off by a space before the first period and the last period. Never use at the beginning of a sentence or quotation.

Organizing your argument is very important.

Start with your best argument first, smoking gun argument should go first. Think about your audience they are more interested in the beginning than they are at the end of your argument. Start strong to keep them interested. When you are a defendant you need to realize that you don't want to follow the other guys lead. Don't follow their organization or argument. Put your best argument first. A way to help do this is to write down your ideas first and then you can go back and read their argument to fill in some counter arguments.

The thesis paragraph...

State the legal issue Briefly explain the rules of law State the legal conclusion (the thesis) If appropriate, request relief from the court

TRUST ACCOUNTING Fla.Bar.Rules 5-1.1 and 5-1.2

The Trust Account rules are numerous and highly detailed. But at the heart of these rules is the Bar's interest in ensuring that when an attorney holds a client's money, that money is treated safely and fairly. To highlight some important aspects of the Trust Accounting rules: - Trust accounts must be kept in a bank within a separate account (or separate bank deposit box) from that of the law firm and/or the attorneys funds; such bank accounts must also be clearly labeled as a trust account; - The money in a trust account can be held by the attorney as an advance payment for client fees, costs and expenses; - Prompt notification and accounting must be made to the client of all monies or other property deposited into or paid out of the trust account; - Detailed records must be kept of all monies flowing into or out of the Trust Account; - The interest on nominal or short-term funds accumulating in a client trust account should be automatically transmitted to the Florida Bar Foundation though the Interest on Trust Accounts (IOTA) Program (more information about the Florida Bar Foundation use of IOTA funds can be found here: https://thefloridabarfoundation.org/iota/) (Links to an external site.) - Every law firm with more than one lawyer must have a written plan for supervision and compliance with all trust accounting requirements; and - Trust account records must be kept for 6 years after the conclusion of the representation.

The U.S. Constitution - through its plain text or through interpretive caselaw - ensures citizens of the United States (and also to a great extent, visitors to the United States) certain inalienable rights or personal liberties. To paraphrase a few of these:

The right to vote The right to freely practice religion The right to own guns The right to a free press The right to own property Many rights relating to protection from unjust criminal prosecution and sentencing

What is federalism?

This is about governmental power. This is divided between a central national government and state government. Some power belongs to national government and some belongs to state. There are 50 state governments. Federal regulates trade between the state, and power to declare war. State regulates their own laws, police, schools. Both have the power to tax. After the revolution the people were scared of too much power to the states and too much power to the federal government. Federalism was a compromise because some powers belong to the federal government and some to the states.

Use persuasive writing...

This is written so that the reader is persuaded to adopt the writers point of view. Examples include declarations, demand letters, memoranda points

Constitutional Protections:

Whether federal or state rules, the rules of criminal procedure must comply with all requirements of the U.S. Constitution. Some of these basic Constitutional protections include: a right to fair process in all hearings a right to equal treatment prohibition on "double jeopardy" (a second trial for the same crime) protection against being forced to answer questions which could be used against oneself prohibition on unreasonable searches and seizures by law enforcement a right to an impartial jury of the ones peers a right to a speedy and public trial a right to know the charges and evidence a right of the accused to be present when witnesses testify against him/her a right of the accused to have a lawyer a right of the accused to be able to call witnesses in his/her defense a right to reasonable bail requirement that sentences to be reasonable and commensurate to the crime

Use predictive writing...

Writing that predicts a legal outcome Neutral analysis Use point headings Use IRAC method of analysis Use CRAC method of analysis (conclusion, rule, analysis, conclusion)