Originally from Handbook on Third-Party Funding in International Arbitration

1.1.   TPF Regime in Florida

As with the overall U.S. country comments, the responses to the following four questions in the questionnaire are intertwined and are thus discussed together below.

1.1.1. Are there any rules in your Jurisdiction (ethical or otherwise) governing duties of counsel in connection with TPF?

1.1.2. What should counsel do to secure that for the information shared with the Funder confidentiality is being preserved? Should counsel seek to specify or limit the individual persons at Funder which obtain access to information? 

1.1.3. Are there any specific disclosure obligations in relation to counsel? Should counsel disclose to the arbitral tribunal counsel’s past and/or present relationship to the Funder?

1.1.4. What should counsel do to secure that for the information shared with the Funder privilege is being preserved?

In 2002, the Florida Bar issued Florida Ethics Opinion 00-3, which establishes a number of restrictions for Florida attorneys with respect to Third-Party Funding. The ethics opinion was issued in the context of litigation funding for personal injury clients, which may have influenced its tone and scope; nevertheless, its language is written so as to apply to Third-Party Funding generally.

At the time the ethics opinion was issued, its authors could “conceive of only limited circumstances under which it would be in a client's best interest for an attorney to provide clients with information about funding companies that offer non-recourse advance funding or other financial assistance to clients in exchange for an assignment of an interest in the case.” Under those limited circumstances, the Bar found that “an attorney may advise a client that such companies exist only if the attorney also discusses with the client whether the costs of the transaction outweigh the benefits of receiving the funds immediately and the other potential problems that can arise. Only after this discussion may a lawyer provide the names of advance funding companies to clients.” Moreover, to the extent that a financing arrangement is not legal, the attorney may not participate in it in any way.