In Re: Amendments to the Rules Regulating The Florida Bar - Biennial Petition ( 2022 )

Supreme Court of Florida
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No. SC20-1467
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IN RE: AMENDMENTS TO THE RULES REGULATING THE
FLORIDA BAR—BIENNIAL PETITION.
March 3, 2022
PER CURIAM.
Before the Court is the biennial petition of The Florida Bar
(Bar) proposing amendments to the Rules Regulating the Florida
Bar (Bar Rules). 1 The Bar proposes amending thirty-one existing
rules, as well as the addition of one new rule. With some minor
modifications, we adopt the amendments proposed by the Bar.
BACKGROUND
The Bar proposes amending existing Bar Rules: 1-3.2
(Membership Classifications); 1-3.6 (Delinquent Members); 1-3.8
(Right to Inventory); 1-7.3 (Membership Fees); 1-12.1 (Amendment
to Rules; Authority; Notice; Procedures; Comments); 1-13.1 (Time);
1. We have jurisdiction. See art. V, § 15, Fla. Const.
3-5.2 (Emergency Suspension and Interim Probation or Interim
Placement on the Inactive List for Incapacity Not Related to
Misconduct); 3-6.1 (Generally); 3-7.1 (Confidentiality); 3-7.7
(Procedures Before Supreme Court of Florida); 4-1.5 (Fees and
Costs for Legal Services); 4-1.10 (Imputation of Conflicts of Interest;
General Rule); 4-1.14 (Client Under a Disability); 4-5.8 (Procedures
for Lawyers Leaving Law Firms and Dissolution of Law Firms); 4-6.1
(Pro Bono Public Service); 4-7.13 (Deceptive and Inherently
Misleading Advertisements); 4-7.18 (Direct Contact with Prospective
Clients); 5-1.2 (Trust Accounting Records and Procedures); 7-1.3
(Administration); 7-1.4 (Definitions); 7-2.3 (Payments); 7-2.4
(Prerequisites to Payment); 7-2.5 (Claims Ordinarily Denied); 10-2.1
(Generally); 10-2.2 (Form Completion by a Nonlawyer); 10-6.3
(Recommendations and Disposition of Complaints); 10-7.2
(Proceedings for Indirect Criminal Contempt); 14-2.1 (Generally);
14-3.1 (Application Required); 20-5.1 (Generally); and 21-3.1
(Continuing Legal Education). The Bar also proposes the addition
of new Bar Rule 6-3.14 (Sunset of Certification Areas).
The Bar’s proposals were approved by the Board of Governors
of The Florida Bar, and consistent with Bar Rule 1-12.1(g), the Bar
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published formal notice of the proposed amendments in The Florida
Bar News. The notice directed interested persons to file their
comments directly with the Court. The Court received two
comments expressing support for the proposed amendments to Bar
Rule 4-7.13 (Deceptive and Inherently Misleading Advertisements).
Having considered the Bar’s petition, the proposed
amendments, and the comments filed, we hereby adopt the
amendments to the Rules Regulating the Florida Bar proposed by
the Bar, with some minor modifications. We explain the
modifications below, as well as discuss some of the significant rule
amendments.
AMENDMENTS
First, new subdivision (g) is added to rule 1-3.6 (Delinquent
Members) to make clear that a member who fails to file the trust
account certificate required in chapter 5 of the Bar Rules will be
deemed delinquent, and will be ineligible to practice law in Florida.
Next, several changes are made to rule 1-3.8 (Right to
Inventory). The title of subdivision (b) is changed to “Maintenance
of Confidentiality,” and the subdivision is amended to provide that
an inventory lawyer “may seek a protective order from the
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appropriate court or take other action necessary to protect
confidential information of the subject lawyer’s clients.”
Subdivision (c) (Status and Purpose of Inventory Lawyer) is
amended to clarify that an inventory lawyer does not represent the
lawyer whose files are being inventoried or that lawyer’s clients.
Subdivision (d) (Rules of Procedure) is deleted in its entirety, and
the remaining subdivisions are redesignated accordingly.
To assist in finding inventory lawyers for the files of lawyers
who are deceased, disbarred, or suspended for a lengthy period, or
who are either incapacitated or incarcerated, new subdivision (e)
(Payment of Inventory Lawyer) is added to rule 1-3.8. The new
subdivision provides that the Bar may pay an inventory attorney a
fee for his or her services. We modify the new subdivision to require
that the fee paid by the Bar be “reasonable.”
Subdivision (g) (Motions for Dissolution) of rule 3-5.2
(Emergency Suspension and Interim Probation or Interim Placement
on the Inactive List for Incapacity Not Related to Misconduct) is
amended to preclude the filing of a motion to dissolve or amend an
emergency suspension in cases where the Bar has demonstrated
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through either a hearing or trial that it is likely to prevail on the
merits of the underlying alleged rule violations.
Subdivision (a) (Authorization and Application) of rule 3-6.1
(Generally) is amended to include the phrase “lawyers on the
inactive list due to incapacity.” This change makes clear that a
lawyer who is placed on the inactive list due to incapacity and is
employed by a law firm is subject to the same restrictions as a
disbarred or suspended lawyer.
Subdivision (j) (Chemical Dependency and Psychological
Treatment) of rule 3-7.1 (Confidentiality) is amended to add judges
and justices to the category of those whose voluntary treatment for
chemical dependency or psychological problems is deemed
confidential. This change is aimed at encouraging members of the
Florida judiciary to seek treatment when necessary for chemical
dependency and mental health issues.
New subdivision (b)(12) (Examples of Deceptive and Inherently
Misleading Advertisements) and a corresponding comment are
added to rule 4-7.13 (Deceptive and Inherently Misleading
Advertisements). The new subdivision prohibits as a deceptive and
misleading advertisement “a statement or implication that another
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lawyer or law firm is part of, is associated with, or affiliated with the
advertising law firm when that is not the case, including contact or
other information presented in a way that misleads a person
searching for a particular lawyer or law firm, or for information
regarding a particular lawyer or law firm, to unknowingly contact a
different lawyer or law firm.” The corresponding new comment
provides explanation and examples of the types of advertisements
prohibited by new subdivision (b)(12).
A new comment with the heading “Permissible contact” is
added to rule 4-7.18 (Direct Contact with Prospective Clients). The
new comment explains that a lawyer may initiate the mutual
exchange of contact information at business-related events and on
business-related social media platforms if the lawyer initiates no
discussion of specific legal matters. The comment also makes clear
that a lawyer who knows a person has a specific legal problem may
not go to a specific event in order to initiate such an exchange and
that “[a]n accident scene, a hospital room of an injured person, or a
doctor’s office are not business or professional conferences or
meetings.”
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New rule 6-3.14 (Sunset of Certification Areas) provides that
the Board of Legal Specialization and Education will petition the
Court to close a certification area to initial applicants if any
certification committee has not received an initial certification
application for five consecutive years.
Rule 10-2.1 (Generally) is amended to place definition terms
within quotation marks and to reorder the definitions in
alphabetical order. The phrase “or been revoked” is added to the
definition in newly redesignated subdivision (g) (Nonlawyer or
Nonattorney) to reflect disciplinary revocation as a form of
disbarment.
Subdivision (c)(2) (As to All Legal Forms) of rule 10-2.2 (Form
Completion by a Nonlawyer) is amended to conform the definition of
paralegal to the definition for the term in rule 10-2.1. We modify
the Bar’s proposal to correctly reference the newly redesignated
definition for paralegal in subdivision (h) of rule 10-2.1.
Lastly, because there is no formal certification for mediators
and arbitrators of Bar matters, the word “certification” in
subdivision (a) (Applications) of Bar Rule 14-3.1 (Application
Required) is replaced with the word “approval.” For consistency, we
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make the same change to the title of subchapter 14-3, so that the
title now reads “Approval of Program Mediators and Arbitrators.”
CONCLUSION
Accordingly, the Rules Regulating the Florida Bar are amended
as set forth in the appendix to this opinion. Deletions are indicated
by struck-through type, and new language is indicated by
underscoring. The amendments shall become effective May 2,
2022, at 12:01 a.m.
It is so ordered.
CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ,
COURIEL, and GROSSHANS, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Florida Rules Regulating the Florida Bar
Joshua E. Doyle, Executive Director, Michael G. Tanner, President,
Gary S. Lesser, President-elect, Gypsy Bailey, Director, Division of
Ethics and Consumer Protection, and Elizabeth Clark Tarbert,
Director, Lawyer Regulation Division, The Florida Bar, Tallahassee,
Florida,
for Petitioner
Alex Hanna, Miami, Florida, and Damien Prosser of Morgan &
Morgan, P.A., Orlando, Florida,
Responding with comments
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Appendix
RULE 1-3.2 MEMBERSHIP CLASSIFICATIONS
(a) Members in Good Standing.
(1) Members of The Florida Bar in good standing means only
those persons licensed to practice law in Florida who have paid
annual membership fees for the current year and who are not
retired, resigned, revoked, disbarred, delinquent, on the inactive
list for incapacity, or suspended.
(2) Members of The Florida Bar who have elected inactive
status, who have paid annual membership fees for the current
year, and who are not retired, resigned, revoked, disbarred,
delinquent, suspended, or on the inactive list for incapacity, are
considered to be in good standing only for purposes of obtaining
a certificate of good standing and for no other purpose. A
certificate of good standing issued to an inactive member will
reflect the member’s inactive status.
(b) [No Change]
RULE 1-3.6 DELINQUENT MEMBERS
Any person now or hereafter licensed to practice law in Florida
shall beis deemed a delinquent member if the member fails to:
(a) fails to pay membership fees;
(b) fails to comply with continuing legal education or basic skills
course requirements;
(c) fails to pay the costs assessed in diversion or disciplinary
cases within 30 days after the disciplinary decision or diversion
recommendation becomes final, unless suchthe time is extended by
the board of governors for good cause shown;
(d) fails to make restitution imposed in diversion cases or
disciplinary proceedings within the time specified in the order in
suchthose cases or proceedings;
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(e) fails to pay fees imposed as part of diversion for more than
30 days after the diversion recommendation became final, unless
suchthe time is extended by the board of governors for good cause
shown; or
(f) fails to pay an award entered in fee arbitration proceedings
conducted under the authority stated elsewhere in these rules and
30 days or more have elapsed since the date on which the award
became final; or
(g) file the trust account certificate required in chapter 5 of
these rules.
Delinquent members shall not engageare not members of The
Florida Bar in good standing and therefore are prohibited from
engaging in the practice of law in Florida nor beand are not entitled
to any privileges and benefits accorded to members of The Florida
Bar in good standing.
RULE 1-3.8 RIGHT TO INVENTORY
(a) Appointment; Grounds; Authority. Whenever an attorneya
lawyer is suspended, disbarred, becomes a delinquent member,
abandons a practice, disappears, dies, or suffers an involuntary
leave of absence due to military service, catastrophic illness, or
injury, and no partner, personal representative, or other responsible
party capable of conducting the attorney’slawyer’s affairs is known
to exist, the appropriate circuit court, upon proper proof of the fact,
may appoint an attorney or attorneysa lawyer or lawyers to
inventory the files of the subject attorneythat lawyer (hereinafter
referred to as “the “subject attorneylawyer”) and to take such
actionact as seems indicatednecessary to protect the interests of the
subject lawyer’s clients of the subject attorney.
(b) Maintenance of Attorney-Client
ConfidencesConfidentiality. Any attorneylawyer so appointed to
inventory a subject lawyer’s files shallmust not disclose any
information contained in the inventoried files so inventoried without
the consent of the client to whom suchthe files relatesrelate, except
as necessary to carry out the order of the court that appointed the
attorneylawyer to make the inventory. Lawyers appointed to
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inventory files may seek a protective order from the appropriate
court or take other action necessary to protect confidential
information of the subject lawyer’s clients.
(c) Status and Purpose of Inventory AttorneyLawyer.
Nothing herein creates an attorney and client, fiduciary, or other
relationship between the inventory attorney and the subject
attorney. Nothing in this rule creates the duties or obligations of a
lawyer-client, fiduciary, or other relationship between a lawyer
appointed to inventory a subject lawyer’s files and the subject
lawyer’s clients except for those duties and obligations specifically
set forth in this rule and those duties and obligations inherent in
the specific tasks undertaken by the inventory lawyer. The purpose
of appointing an inventory attorneylawyer is to avoid prejudice to
the subject lawyer’s clients of the subject attorney and, as a
secondary result, prevent or reduce claims against the subject
attorneylawyer for such prejudice as may otherwise occur.
(d) Rules of Procedure. The Florida Rules of Civil Procedure
are applicable to proceedings under this rule.
(e)(d) Designation of Inventory AttorneyLawyer. Each
member of the bar who practices law in Florida shallmust designate
another member of The Florida Bar who has agreed to serve as
inventory attorneylawyer under this rule; provided, however, except
that no designation is required with respect to any portion of the
member’s practice as an employee of a governmental entity. When
the services of an inventory attorneylawyer become necessary, an
authorized representative of The Florida Bar shallwill contact the
designated member and determine the member’s current
willingness to serve. The designated member shallis not be under
any obligation to serve as inventory attorneylawyer.
(e) Payment of Inventory Lawyer. The Florida Bar may pay a
reasonable fee set by the bar’s executive director as approved by the
board of governors and within the bar’s annual budget for that year
to a lawyer who agrees to conduct an inventory under this rule.
Payment by The Florida Bar to an inventory lawyer will be made
only with prior approval by the bar, on an application approved by
the bar, and under parameters set by the bar.
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RULE 1-7.3 MEMBERSHIP FEES
(a) Membership Fees Requirement. On or before July 1 of
each year, every member of The Florida Bar must pay annual
membership fees to The Florida Bar in the amount of $265 per
annum, except those members who have retired, resigned, been
revoked or disbarred, or been classified as inactive members
pursuant tounder rule 3-7.13, must pay annual membership fees to
The Florida Bar in the amount of $265 per annum. Every member
of The Florida Bar must pay the membership fee and concurrently
file a fee statement with any information the board of governors
requires.
(b) Prorated Membership Fees. Membership fees will be
prorated for anyone admitted to The Florida Bar after July 1 of any
fiscal year. The prorated amount will be based on the number of
full calendar months remaining in the fiscal year at the time of their
admission.
Unpaid prorated membership fees will be added to the next
annual membership fees bill with no penalty to the member. The
Florida Bar must receive the combined prorated and annual
membership fees payment on or before August 15 of the first full
year fees are due unless the member elects to pay by installment.
(c) Installment Payment of Membership Fees. Members of
The Florida Bar may elect to pay annual membership fees in 3
equal installments as follows:
(1) in the second and third year of their admission to The
Florida Bar;
(2) if the member is employed by a federal, state, or local
government in a non-elected position that requires the individual
to maintain membership in good standing within The Florida
Bar; or
(3) if the member is experiencing an undue hardship.
A member must notify The Florida Bar of the intention to pay
membership fees in installments. The first installment payment
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must be postmarked no later than August 15. The second and
third installment payments must be postmarked no later than
November 1 and February 1, respectively.
Second and/or third installment payments postmarked after
their respective due date(s)dates are subject to a one-time late
charge of $50. The late charge must accompany the final payment.
The executive director, with concurrence of the executive
committee, may adjust the late charge.
The executive directorFlorida Bar will send written notice to the
last official bar address of each member who has not paid
membership fees and late fees by February 1. Written notice may
be by registered or certified mail, or by return receipt electronic
mail. The member will be a delinquent member if membership fees
and late charges are not paid by March 15. The executive director,
with concurrence of the executive committee, may adjust these fees
or due date for good cause.
Each member who elects to pay annual membership fees in
installments may be charged an additional administrative fee set by
the board of governors to defray the costs of this activity.
(d) [No Change]
(e) Late Payment of Membership Fees. Payment of annual
membership fees must be postmarked no later than August 15.
Membership fees payments postmarked after August 15 must be
accompanied by a late charge of $50. The executive directorFlorida
Bar will send written notice to the last official bar address of each
member whose membership fees have not been paid by August 15.
Written notice may be by registered or certified mail, or by return
receipt electronic mail. The member is considered a delinquent
member upon failure to pay membership fees and any late charges
by September 30, unless adjusted by the executive director with
concurrence of the executive committee.
(f) Membership Fees Exemption for Activated Reserve
Members of the Armed Services. Members of The Florida Bar
engaged in reserve military service in the Armed Forces of the
United States who are called to active duty for 30 days or more
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during the bar’s fiscal year are exempt from the payment of
membership fees. The Armed Forces of the United States includes
the United States Army, Air Force, Navy, Marine Corps, Coast
Guard, as well as the Army National Guard, Army Reserve, Navy
Reserve, Marine Corps Reserve, the Air National Guard of the
United States, the Air Force Reserve, and the Coast Guard Reserve.
Requests for an exemption must be made within 15 days before the
date that membership fees are due each year or within 15 days of
activation to duty of a reserve member. To the extent membership
fees were paid despite qualifying for this exemption, suchthe
membership fee will be reimbursed by The Florida Bar within 30
days of receipt of a member’s request for exemption. Within 30
days of leaving active duty status, the member must report to The
Florida Bar that he or shethe member is no longer on active duty
status in the United States Armed Forces.
RULE 1-12.1 AMENDMENT TO RULES; AUTHORITY; NOTICE;
PROCEDURES; COMMENTS
(a)-(c) [No Change]
(d) Notice of Proposed Board Action. Notice of the proposed
action of the board on a proposed amendment will be givenThe
Florida Bar will give notice of proposed board of governors action on
a proposed amendment in an edition of The Florida Bar News and
on The Florida Bar website prior to the meeting of the board at
which the board action is taken. The notice will identify the rule(s)
to be amended and state in general terms the nature of the
proposed amendments.
(e) [No Change]
(f) Approval of Amendments. Amendments to these rules
other than chapters 7 and 9, as well asand the standards for
theexisting individual areas of certification within chapter 6 of these
Rules Regulating The Florida Bar must be by petition to the
Supreme Court of Florida. Petitions to amend these Rules
Regulating The Florida Bar may be filed by the board of governors
or by 50 members in good standing, provided that any amendments
proposed by members of the bar must be filed 90 days after filing
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them with The Florida Bar. Amendments proposed by bar members
must be filed with The Florida Bar’s executive director at least 90
days before the petition is filed with the Supreme Court of Florida.
(g)-(j) [No Change]
RULE 1-13.1 TIME
(a) [No Change]
(b) Additional Time after Service by Mail or E-mail. When a
person has the right or is required to do somemay or must act or
take some proceeding within a prescribed period after service of a
notice or other paperdocument and the notice or paperother
document is served by mail or e-mail, 5 days will be added to the
prescribed period.
RULE 3-5.2 EMERGENCY SUSPENSION AND INTERIM
PROBATION OR INTERIM PLACEMENT ON THE INACTIVE LIST
FOR INCAPACITY NOT RELATED TO MISCONDUCT
(a) Petition for Emergency Suspension.
(1) Great Public Harm. On petition of The Florida Bar,
authorized by its president, president-elect, or executive director,
supported by 1 or more affidavits demonstrating facts personally
known to the affiants that, if unrebutted, would establish clearly
and convincingly that a lawyer appears to be causing great
public harm, theThe Supreme Court of Florida may issue an
order suspending the lawyer on an emergency basis on petition
of The Florida Bar, authorized by its president, president-elect,
or executive director and supported by 1 or more affidavits
demonstrating facts personally known to the affiants that, if
unrebutted, would establish clearly and convincingly that a
lawyer appears to be causing great public harm.
(2) Discipline by Foreign Jurisdiction. On petition of The
Florida Bar, authorized by its president, president-elect, or
executive director, supported by a certified copy of an order of a
foreign disciplinary jurisdiction suspending or disbarring a
lawyer from the practice of law, theThe Supreme Court of Florida
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may issue an order suspending the lawyer on an emergency
basis on petition of The Florida Bar, authorized by its president,
president-elect, or executive director and supported by a certified
copy of an order of a foreign disciplinary jurisdiction suspending
or disbarring a lawyer from the practice of law under rule 3-7.2.
See subdivision (l) of rule 3-7.2.
(3) Formal Complaint, Answer, and Defenses. A petition for
emergency suspension will also constitutes a formal complaint.
The respondent will havehas 20 days after docketing by the
Supreme Court of Florida of its order granting the bar’s petition
for emergency suspension in which to file an answer and any
affirmative defenses to the bar’s petition.
(b) Petition for Interim Probation or Interim Placement on
the Inactive List for Incapacity Not Related to Misconduct. The
Supreme Court of Florida may issue an order placing a lawyer on
interim probation, under the conditions provided in subdivision (c)
of rule 3-5.1 or placing the lawyer on the inactive list for incapacity
not related to misconduct as provided in rule 3-7.13. SuchThe
order may be issued upon petition of The Florida Bar, authorized by
its president, president-elect, or executive director, and supported
by 1 or more affidavits demonstrating facts personally known to the
affiants that, if unrebutted, would establish clearly and
convincingly that conditions or restrictions on a lawyer’s privilege to
practice law in Florida are necessary for protection ofto protect the
public. This petition will also constitutes the formal complaint.
The respondent will havehas 20 days after docketing by the
Supreme Court of Florida of its order granting the bar’s petition for
interim probation in which to file an answer and any affirmative
defenses to the bar’s petition.
(c) Trust Accounts. Any order of emergency suspension or
probation that restricts the attorney in maintaining a trust account
will be served on the respondent and any bank or other financial
institution maintaining an account against which the respondent
may make withdrawals. The order will serves as an injunction to
prevent the bank or financial institution from making further
payment from the trust account or accounts on any obligation
except in accordance with restrictions imposed by the court
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through subsequent orders issued by a court-appointed referee.
Bar counsel will serve a copy of the Supreme Court of Florida’s
order freezing a lawyer’s trust account via first class mail on the
bank(s)any bank in which the respondent’s trust account is held.
(1) [No Change]
(2) Bar counsel and bar auditors will provide information to
the appointed referee from bar audits and other existing
information regarding persons claiming ownership of frozen trust
account funds. The bar will notify persons known to bar staff in
writing via regular first class mail of their possible interest in
funds contained in the frozen trust account. The notices will
include a copy of the form of a petition requesting release of
frozen trust account funds, to be filed with the referee and
instructions for completing the form. The bar will publish, in
the local county or city newspaper published where the lawyer
practiced before suspension, a notice informing the public that
the lawyer’s trust account has been frozen and those persons
with claims on the funds should contact listed bar counsel
within 30 days after publication whenever possible.
(A) If there are no responses to the notices mailed and
published by the bar within 90 days from the date of the
notice or if the amount in the frozen trust account is over
$100,000, a receiver may be appointed by theThe referee may
appoint a receiver to determine the persons rightfully entitled
to the frozen trust funds if there are no responses to the
notices mailed and published by the bar within 90 days from
the date of the notice or if the amount in the frozen trust
account is over $100,000. The receiver will be paid from the
corpus of the trust funds unless the referee orders otherwise.
(B) In all other instances, aA referee shallwill determine
who is entitled to funds in the frozen trust account, unless
the amount in the frozen trust account is $5,000 or less, and
no persons with potential entitlement to frozen trust account
funds respond to the bar’s mailed or published notices within
90 days from the date of the notice. In suchthat event, the
funds will be unfrozen.
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(d) Referee Review of Frozen Trust Account Petitions. The
referee will determines when and how to pay the claim of any
person entitled to funds in the frozen trust account after reviewing
the bar’s audit report, the lawyer’s trust account records, the
petitions filed, or the receiver’s recommendations. IfThe referee may
hold a hearing if the bar’s audit report or other reliable evidence
shows that funds have been stolen or misappropriated from the
lawyer’s trust account, then the referee may hold a hearing.
Subchapter 3-7 will not apply to a referee hearing under this rule.
No pleadings willmay be filed, only other than petitions requesting
release of frozen trust account funds. The parties to this referee
proceeding will beare those persons filing a petition requesting
release of frozen trust account funds. The bar willis not be a party
to the proceeding. The referee’s order will beis the final order in the
matter unless one of the parties petitions for review of the referee’s
order to the Supreme Court of Florida. The sole issue before the
referee will beis determination of ownership of the frozen trust
account funds. The referee will determines the percentage of
monies missing from the respondent’s trust account and the
amounts owing to those petitioners requesting release of frozen
trust account funds. AThe referee will order a pro rata distribution
is the method of distribution whenif there are insufficient funds in
the account to pay all claims in full. The referee’s decisionfinal
order is subject only to direct petition for review of the referee’s final
order by a party claiming an ownership interest in the frozen trust
funds. The petition for review must be filed within 60 days of the
referee’s final order. The schedule for filing of briefs in the appellate
process will beis as set forth in subchapter 3-7 of these rules.
(e) Separate Funds in Frozen Trust Accounts. The referee
will order return of any separate funds to their rightful owner(s) in
full upon theirthe filing of a petition requesting release of frozen
trust account funds with proof of entitlement to the funds.
Separate funds are monies deposited into the respondent’s trust
account after the misappropriation, which are not affected by the
misappropriation, and funds that have been placed into a separate
segregated individual trust account under the individual client’s tax
identification number.
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(f) New Cases and Existing Clients. Any order of emergency
suspension issued under this rule will immediately precludes the
attorneylawyer from accepting any new cases and, unless otherwise
ordered, permits the attorneylawyer to continue to represent
existing clients for only the first 30 days after issuance of an
emergency order. Any fees paid to the suspended attorneylawyer
during the 30-day period willmust be deposited in a trust account
from which withdrawals may be made only in accordance with
restrictions imposed by the court.
(g) Motions for Dissolution. The lawyer may move at any time
for dissolutionto dissolve or amendment ofamend an emergency
order by motion filed with the Supreme Court of Florida, a copy of
which will be served on bar counselunless the bar has
demonstrated, through a hearing or trial, the likelihood of prevailing
on the merits on any of the underlying violations of the Rules
Regulating The Florida Bar. The lawyer must serve a copy of the
motion on bar counsel. The motion will not stay any other
proceedings andor applicable time limitations in the case and,
unless the motion fails to state good cause or is procedurally barred
as an invalid successive motion, will immediately be assigned to a
referee designated by the chief justice, unless the motion fails to
state good cause or is procedurally barred as an invalid successive
motion. The filing of the motion will not stay the operation of an
order of emergency suspension or interim probation entered under
this rule.
(h) [No Change]
(i) Hearing on Petition to Terminate or Modify Suspension.
The referee will hear a motion to terminate or modify a suspension
or interim probation imposed under this rule within 7 days of
assignment and submit a report and recommendation to the
Supreme Court of Florida within 7 days of the hearing date of the
hearing. The referee will recommend dissolution or amendment,
whichever is appropriate, to the extent thatif bar counselthe bar
cannot demonstrate a likelihood of prevailing on the merits on any
elementat least 1 of the underlying rule violations of the Rules
Regulating The Florida Bar that establishes that the respondent is
causing great public harm.
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(j) Successive Motions Prohibited. Successive motions for
dissolution will be summarily dismissed by theThe Supreme Court
of Florida will summarily dismiss any successive motions for
dissolution to the extent that they raise issues that were, or with
due diligence could have been, raised in a prior motion.
(k) Review by the Supreme Court of Florida. On receipt of
the referee’s recommended order on the motion for dissolution or
amendment, theThe Supreme Court of Florida will review and act
upon the referee’s findings and recommendations regarding
emergency suspensions and interim probations on receipt of the
referee’s report on the motion for dissolution or amendment. This
subdivision does not apply to a referee’s final order to determine
ownership of funds in frozen trust accounts. These final orders of
referee are reviewable by the Supreme Court of Florida only if a
party timely files a petition for review pursuant tounder this rule.
Briefing schedules following the petition for review will beare as set
forth in subchapter 3-7 of these rules.
(l) Hearings on Issues Raised in Petitions for Emergency
Suspension or Interim Probation and Sanctions. Once the
Supreme Court of Florida has granted a petition for emergency
suspension or interim probation as set forthunder in this rule, the
referee appointed by the court will hear the matter in the same
manner as provided in rule 3-7.6, except that the referee will hear
the matter after the lawyer charged has answered the charges in the
petition for emergency suspension or interim probation or when the
time has expired for filing an answer. The referee will issue a final
report and recommendation within 90 days of appointment. If the
time limit specified in this subdivision is not met, that portion of an
emergency order imposing a suspension or interim probation will be
automatically dissolved, except upon order of the Supreme Court of
Florida, provided that any other appropriate disciplinary action on
the underlying conduct still may be taken.
(m) Proceedings in the Supreme Court of Florida.
Consideration of the referee’s report and recommendation regarding
emergency suspension and interim probation will be expedited in
theThe Supreme Court of Florida will expedite consideration of the
referee’s report and recommendation regarding emergency
- 20 -
suspension and interim probation. If oral argument is granted,
theThe chief justice will schedule oral argument as soon as
practicable, if granted.
(n) Waiver of Time Limits. The respondent may, at any time,
waive the time requirements set forth in this rule by written request
made to and approved by the referee assigned to hear the matter.
RULE 3-6.1 GENERALLY
(a) Authorization and Application. Except as limited in this
rule, persons or entities providing legal services may employ
suspended lawyers, lawyers on the inactive list due to incapacity,
and former lawyers who have been disbarred or whose disciplinary
resignations or disciplinary revocations have been granted by the
Florida Supreme Court of Florida [(for purposes of this rule these
lawyers and former lawyers are referred to as “individual(s) subject
to this rule”)] to perform those services that may ethically be
performed by nonlawyers employed by authorized business entities.
An individual subject to this rule is considered employed by an
entity providing legal services if the individual is a salaried or
hourly employee, volunteer worker, or an independent contractor.
(b)-(f) [No Change]
Comment
[No Change]
RULE 3-7.1 CONFIDENTIALITY
(a) Scope of Confidentiality. All records including files,
preliminary investigation reports, interoffice memoranda, records of
investigations, and the records in trials and other proceedings
under these rules, except those disciplinary matters conducted in
circuit courts, are property of The Florida Bar. All of those matters
are confidential and will not be disclosed except as provided in
these rules. When disclosure is permitted under these rules, it will
be limited to information concerning the status of the proceedings
and any information that is part of the public record as defined in
these rules.
- 21 -
Unless otherwise ordered by this court or the referee in
proceedings under these rules, nothing in these rules prohibits the
complainant, respondent, or any witness from disclosing the
existence of proceedings under these rules, or from disclosing any
documents or correspondence served on or provided to those
persons except where disclosure is prohibited in Chapterchapter 4
of these rules or by statutes and caselaw regarding attorney-client
privilege.
(1)-(2) [No Change]
(3) Probable Cause Cases. Any disciplinary case in which a
finding of probable cause for further disciplinary proceedings
has been entered is public information. For purposes of this
subdivision, a finding of probable cause is deemed in those cases
authorized by rule 3-3.2(a), for the filing of a formal complaint
without the requirement of a finding of probable cause.
(4)-(12) [No Change]
(b) Public Record. The public record consists of the record
before a grievance committee, the record before a referee, the record
before the Supreme Court of Florida, and any reports,
correspondence, papers, recordings, and/or transcripts of hearings
furnished to, served on, or received from the respondent or the
complainant.
(c)-(e) [No Change]
(f) Notice to Law Firms. When a disciplinary file is opened the
respondent must disclose to the respondent’s current law firm and,
if different, the respondent’s law firm at the time of the act or acts
giving rise to the complaint, the fact that a disciplinary file has been
opened. Disclosure must be in writing and in the following form:
A complaint of unethical conduct against me has been filed
with The Florida Bar. The nature of the allegations are
___________________. This notice is provided pursuant tounder
rule 3-7.1(f) of the Rules Regulating The Florida Bar.
- 22 -
The notice must be provided within 15 days of notice that a
disciplinary file has been opened and a copy of the above notice
must be served on The Florida Bar.
(g) Production of Disciplinary Records Pursuant to
Subpoena. The Florida Bar, pursuant tounder a valid subpoena
issued by a regulatory agency, may provide any documents that are
a portion of the public record, even if the disciplinary proceeding is
confidential under these rules. The Florida Bar may charge a
reasonable fee for identification of and photocopying the
documents.
(h) Notice to Judges. Any judge of a court of record, upon
inquiry of the judge, will be advised and, absent an inquiry, may be
advised as to the status of a confidential disciplinary case and may
be provided with a copy of documents in the file that would be part
of the public record if the case was not confidential. The judge
must maintain the confidentiality of the records’ confidentiality and
not otherwise disclose the status of the case.
(i) [No Change]
(j) Chemical Dependency and Psychological Treatment.
That a lawyer, judge, or justice has voluntarily sought, received, or
accepted treatment for chemical dependency or psychological
problems is confidential and will not be admitted as evidence in
disciplinary proceedings under these rules unless agreed to by the
attorneylawyer, judge, or justice who sought, received, or accepted
the treatment.
For purposes of this subdivision, a lawyer, judge, or justice is
deemed to have voluntarily sought, received, or accepted treatment
for chemical dependency or psychological problems if the lawyer,
judge, or justice was not under compulsion of law or rule to do so,
or if the treatment is not a part of conditional admission to The
Florida Bar or of a disciplinary sanction imposed under these rules.
It is the purpose of this subdivision to encourage lawyers,
judges, and justices to voluntarily seek advice, counsel, and
treatment available to lawyers, judges, and justices, without fear
- 23 -
that the fact it is sought or rendered will or might cause
embarrassment in any future disciplinary matter.
(k) [No Change]
(l) Disclosure by Waiver of Respondent. UponOn written
waiver executed by a respondent, The Florida Bar may disclose the
status of otherwise confidential disciplinary proceedings and
provide copies of the public record to:
(1)-(4) [No Change]
(m) Maintaining Confidentiality Required by Rule or Law.
The bar will maintain confidentiality of documents and records in
its possession and control as required by applicable federal or state
law in accordance with the requirements of Fla. R. Gen. Prac. &
Jud. Admin.Fla. R. Jud. Admin 2.420. It will be the duty of
respondents and other persons submitting documents and
information to the bar to notify bar staff that suchthe documents or
information contain material that is exempt from disclosure under
applicable rule or law and to request that such exempt material be
protected and not be considered public record. Requests to exempt
from disclosure all or part of any documents or records must be
accompanied by reference to the statute or rule applicable to the
information for which exemption is claimed.
RULE 3-7.7 PROCEDURES BEFORE SUPREME COURT OF
FLORIDA
All reports of a referee and all judgments entered in proceedings
under these rules shall beare subject to review by the Supreme
Court of Florida in the following manner:
(a) Right of Review.
(1) Any party to a proceeding may procurerequest review of
all or part of a report of a referee or a judgment, or any specified
portion thereof, entered under these rules.
(2) The Supreme Court of Florida shall reviews all reports
and judgments of referees recommending probation, public
- 24 -
reprimand, suspension, disbarment, or resignationrevocation
pending disciplinary proceedings.
(3) A referee’s report that does not recommend probation,
public reprimand, suspension, disbarment, or
resignationrevocation pending disciplinary proceedings, shall be
is final if not appealed.
(b) [No Change]
(c) Procedure for Review. Review by theThe Supreme Court of
Florida shallwill conduct its review using be in accordance with the
following procedures:
(1) Notice of Intent to Seek Review of Report of Referee. A
party to a bar disciplinary proceeding wishing to seeking review
of a report of referee shallmust give notice of suchthat intent
within 60 days of the date on which the referee’s report is
docketed by the Clerk of the Supreme Court of Florida.
PromptThe Florida Bar will provide prompt written notice of the
board’s action, if any, shall be communicated to the respondent.
The proceeding shall be commencedbegins by filing with the
Supreme Court of Florida notice of intent to seek review of a
report of referee, specifying those portions of the report of a
referee sought to be reviewed. Within 20 days after service of
suchthe notice of intent to seek review, the opposing party may
file a cross-notice for review specifying any additional portion of
the report for which that said party desires to be reviewedseeks
review. The filing of suchthe notice or cross-notice shall beis
jurisdictional as to a review to be procured as a matter of right,
but the court may, in its discretion, consider a late-filed notice
or cross-notice upon a showing of good cause.
(2) Record on Review. The report and record filed by the
referee shall constitutes the record on review. If hearings were
held at which testimony was heard, but no transcripts thereof
were filed in the matter, the party seeking review shallmust
order preparation of all such transcripts, file the
transcriptsoriginal thereof with the court, and serve copies on
the opposing party, on or before the time of filing of the initial
- 25 -
brief, as provided elsewhere in this rule. The party seeking
review shall be responsible for, andmust pay directly to the court
reporter, the cost of transcript preparation of transcripts.
Failure to timely file and serve all of such transcripts may be
cause for dismissal ofto dismiss the party’s petition for review.
(3) Briefs. The party first seeking review shallmust file a
brief in support of the notice of intent to seek review within 30
days of the filing of the notice. The opposing party shallmust file
an answer brief within 20 days after the service of the initial
brief of the party seeking review, which answer brief shallmust
also support any cross-notice for review. The party originally
seeking review may file a reply brief within 20 days after the
service of the answer brief. The cross-reply brief, if any,
shallmust be served within 20 days thereafterof the reply brief’s
filing. Computation of time for filing briefs under this rule shall
follows the applicable Florida Rules of Appellate Procedure. The
form, length, binding, type, and margin requirements of briefs
filed under this rule shall follow the requirements of Fla. R. App.
P. 9.210.
(4) Oral Argument. Request for oral argument may be filed in
any case wherein a party files a notice of intent to seek review at
the time of filing the first brief. If no request is filed, the case
will be disposed of without oral argument unless the court
orders otherwise.
(5) Burden. UponOn review, the burden shall be uponis on
the party seeking review to demonstrate that aall or part of the
referee report of a referee sought to be reviewed is erroneous,
unlawful, or unjustified.
(6) Judgment of Supreme Court of Florida.
(A) Authority. After review, the Supreme Court of Florida
shallwill enter an appropriate order or judgment. If no review
is sought of a report of a referee entered under the rules and
filed in the court, the findings of fact shall beare deemed
conclusive, and the referee’s recommended disciplinary
measure recommended by the referee shallwill be the
- 26 -
disciplinary measure imposed by the court, unless the court
directs the parties to submit briefs or conduct oral argument
directed toon the suitability of the referee’s recommended
disciplinary measure recommended by the referee. A referee’s
report that becomes final when no review has been timely
filed shallwill be reported in an order of the Supreme Court of
Florida.
(B) Form. The court’s judgment of the court shallmay
include, where appropriate, judgment in favor of:
(i)-(iii) [No Change]
(7) Procedures on Motions to Tax Costs. The court may
consider a motion to assess costs if the motion is filed within 10
days of the entry of the court’s order or opinion where the referee
finds the respondent not guilty at trial and the supreme court,
upon review, finds the respondent guilty of at least 1 rule
violation and does not remand the case to the referee for further
proceedings or where the respondent was found guilty at trial
and the supreme court, upon review, finds the respondent not
guilty of any rule violation. The party from whom costs are
sought shall havehas 10 days from the date the motion was filed
in which to serve an objection. Failure to timely file a petition
for costs or to timely serve an objection, without good cause,
shall be considered a waiver ofwaives the request or objection to
the costs, and the court may enter an order without further
proceedings. If an objection is timely filed, or the court
otherwise directs, the motion shallwill be remanded to the
referee. UponOn remand, the referee shallmust file a
supplemental report that shall includes a statement of costs
incurred and the manner in which the costs should be assessed.
Any party may seek review of the supplemental report of referee
in the same manner as provided for in this rule for other reports
of the referee.
(d) Precedence of Proceedings. Notices of intent to seek
review in disciplinary proceedings shall take precedence over all
other civil causes in the Supreme Court of Florida.
- 27 -
(e) Extraordinary Writs. All applications for extraordinary
writs that are concerned with disciplinary proceedings under these
rules of discipline shallmust be made to the Supreme Court of
Florida.
(f) Florida Rules of Appellate Procedure. To the extent
necessary to implement this rule and if not inconsistent herewith,
theThe Florida Rules of Appellate Procedure shall beare applicable
to notices of intent to seek review in disciplinary proceedings if
consistent with this rule., provided service Service on bar counsel
and staff counsel constitutes service on The Florida Bar shall be
accomplished by service on bar counsel and staff counsel.
(g) Contempt by Respondent. Whenever it is alleged that a
respondent is in contempt in a disciplinary proceeding, a petition
for an order to show cause why the respondent should not be held
in contempt and the proceedings on suchthe petition may be filed in
and determined by the Supreme Court of Floridacourt or as
provided under rule 3-7.11(f).
(h) Pending Disciplinary Cases. If the court orders disbarment
or disciplinary revocation is ordered by the court, that order may
include the dismissal without prejudice of other pending cases
against the respondent may be ordered in the court’s disbarment or
disciplinary revocation order.
Comment
Subdivision (c)(7) of this rule applies to situations whichthat
arise when a referee finds a respondent not guilty but the supreme
court, on review, finds the respondent guilty and does not remand
the case back to the referee for further proceedings. See, e.g., The
Florida Bar v. Pape, 918 So. 2d 240 (Fla. 2005). A similar situation
may also occur where a respondent is found guilty at trial, but not
guilty by the supreme court on review of the referee’s report and
recommendation.
RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES
(a) Illegal, Prohibited, or Clearly Excessive Fees and Costs.
A lawyer must not enter into an agreement for, charge, or collect an
- 28 -
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:
(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 attorneylawyer; or
(2) the fee or cost is sought or secured by the
attorneylawyer by means of intentional misrepresentation or
fraud upon the client, a nonclient party, or any court, as to
either entitlement to, or amount of, the fee.
(b)-(e) [No Change]
(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, except in a matter in which a
contingent fee is prohibited by subdivision (f)(3) or by law. A
contingent fee agreement must be in writing and must state the
method by which the fee is to be determined, including the
percentage or percentages that will accrue to the lawyer in the
event of settlement, trial, or appeal;. The agreement must also
state the costs litigation and other expenses to be deducted from
the recovery; and whether those expensescosts are to be
deducted before or after the contingent fee is calculated. On
conclusion of a contingent fee matter, the lawyer must provide
the client with a written statement describing the outcome of the
matter and, if there is a recovery, showing the remittance to the
client and the method of its determination. This written
statement must include an itemization of costs, fees of each
lawyer or law firm participating in the fee, and payments to third
parties to be paid from the recovery.
(2)-(4) [No Change]
(g)-(i) [No Change]
- 29 -
Comment
[No Change]
RULE 4-1.10 IMPUTATION OF CONFLICTS OF INTEREST;
GENERAL RULE
(a)-(e) [No Change]
Comment
Definition of “firm”
There is ordinarily no question that the members of an
organization’s law department constitute a firm within the meaning
of the Rules of Professional Conduct. However, there can be
uncertainty as to the identity of the client. For example, it may not
be clear whether the law department of a corporation represents a
subsidiary or an affiliated corporation, as well as the corporation by
which the members of the department are directly employed. A
similar question can arise concerning an unincorporated
association and its local affiliates.
Similar questions can also arise with respect to lawyers in legal
aid. Lawyers employed in the same unit of a legal service
organization constitute a firm, but not necessarily those employed
in separate units. As in the case of independent practitioners,
whether the lawyers should be treated as associated with each
other can depend on the particular rule that is involved and on the
specific facts of the situation.
Where a lawyer has joined a private firm after having
represented the government, the situation is governed by rule 4-
1.11(a) and (b); where a lawyer represents the government after
having served private clients, the situation is governed by rule 4-
1.11(c)(1)4-1.11(d). The individual lawyer involved is bound by the
rules generally, including rules 4-1.6, 4-1.7, and 4-1.9.
Different provisions are thus made for movement of a lawyer
from 1 private firm to another and for movement of a lawyer
between a private firm and the government. The government is
entitled to protection of its client confidences and, therefore, to the
protections provided in rules 4-1.6, 4-1.9, and 4-1.11. However, if
- 30 -
the more extensive disqualification in rule 4-1.10 were applied to
former government lawyers, the potential effect on the government
would be unduly burdensome. The government deals with all
private citizens and organizations and thus has a much wider circle
of adverse legal interests than does any private law firm. In these
circumstances, the government’s recruitment of lawyers would be
seriously impaired if rule 4-1.10 were applied to the government.
On balance, therefore, the government is better served in the long
run by the protections stated in rule 4-1.11.
Principles of imputed disqualification
[No Change]
Lawyers moving between firms
[No Change]
Confidentiality
Preserving confidentiality is a question of access to information.
Access to information, in turn, is essentially a question of fact in
particular circumstances, aided by inferences, deductions, or
working presumptions that reasonably may be made about the way
in which lawyers work together. A lawyer may have general access
to files of all clients of a law firm and may regularly participate in
discussions of their affairs; it should be inferred that such a lawyer
in fact is privy to all information about all the firm’s clients. In
contrast, another lawyer may have access to the files of only a
limited number of clients and participate in discussion of the affairs
of no other clients; in the absence of information to the contrary, it
should be inferred that such a lawyer in fact is privy to information
about the clients actually served but not information about other
clients.
Application of subdivisions (b) and (c) depends on a situation’s
particular facts. In any inquiry, the burden of proof should rest
uponon the firm whose disqualification is sought.
- 31 -
Subdivisions (b) and (c) operate to disqualify the firm only when
the lawyer involved has actual knowledge of relevant information
protected by rules 4-1.6 and 4-1.9(b) and (c). Thus, if a lawyer
while with 1 firm acquired no knowledge or information relating to a
particular client of the firm and that lawyer later joined another
firm, neither the lawyer individually nor the second firm is
disqualified from representing another client in the same or a
related matter even though the interests of the 2 clients conflict.
Independent of the question of disqualification of a firm, a lawyer
changing professional association has a continuing duty to preserve
confidentiality of information about a client formerly represented.
See rules 4-1.6 and 4-1.9.
Consent to conflict
[No Change]
Imputation of conflicts in rule 4-1.8
[No Change]
RULE 4-1.14 CLIENT UNDER A DISABILITYWITH DIMINISHED
CAPACITY
(a) Maintenance of Normal Relationship. When a client’s
abilitycapacity to make adequately considered decisions in
connection with the representation is impaireddiminished, whether
because of minority, mental disabilityimpairment, or for some other
reason, the lawyer shallmust, as far as reasonably possible,
maintain a normal client-lawyer relationship with the client as
much as reasonably possible.
(b) Appointment of Guardian. A lawyer may seek the
appointment of a guardian or take other protective action with
respect to a client only when the lawyer reasonably believes that the
client cannot adequately act in the client’s own interest.Protective
Action. A lawyer is not required to seek a determination of
incapacity or the appointment of a guardian or take other protective
action with respect to a client. However, when the lawyer
- 32 -
reasonably believes that the client has diminished capacity, is at
risk of substantial physical, financial, or other harm unless action
is taken and cannot adequately act in the client’s own interest, the
lawyer may take reasonably necessary protective action, such as,
consulting with individuals or entities that have the ability to act to
protect the client and, in appropriate cases, seek the appointment
of a guardian ad litem or guardian. A lawyer must make reasonable
efforts to exhaust all other available remedies to protect the client
before seeking removal of any of the client’s rights or the
appointment of a guardian.
(c) Confidentiality. Information relating to the representation
of a client with diminished capacity is protected by the rule on
confidentiality of information. When taking protective action under
this rule, the lawyer is impliedly authorized under the rule on
confidentiality of information to reveal information about the client,
but only to the extent reasonably necessary to protect the client’s
interests.
Comment
The normal client-lawyer relationship is based on the
assumption that the client, when properly advised and assisted, is
capable of making decisions about important matters. When the
client is a minor or suffers from a mental disorder or disabilityhas
diminished mental capacity, however, maintaining the ordinary
client-lawyer relationship may not be possible in all respects. In
particular, an incapacitated person may have no power to make
legally binding decisions. Nevertheless, a client lacking legal
competencewith diminished capacity often has the ability to
understand, deliberate upon, and reach conclusions about matters
affecting the client’s own well-being. Furthermore, to an increasing
extent the law recognizes intermediate degrees of competence. For
example, children as young as 5 or 6 years of age, and certainly
those of 10 or 12, are regarded as having opinions that are entitled
to weight in legal proceedings concerning their custody. So also, it
is recognized that someSome persons of advanced age can be
quiteare capable of handling routine financial matters while needing
special legal protection concerning major transactions.
- 33 -
The fact thatThat a client suffers a disabilityhas diminished
capacity does not diminish the lawyer’s obligation to treat the client
with attention and respect. If the person has no guardian or legal
representative, the lawyer often must act as de facto guardian. Even
if the person does havehas a legal representative, the lawyer should,
as far as possible, accord the represented person the status of
client, particularly in maintaining communication.
The client may wish to have family members or other persons
participate in discussions with the lawyer. When necessary to
assist in the representation, the presence of these persons furthers
the rendition of legal services to the client and does not waive the
attorney-client privilege. Nevertheless, the lawyer must keep the
client’s interests foremost and, except for protective action
authorized under subdivision (b), must look to the client, and not
family members, to make decisions on the client’s behalf. A lawyer
should be mindful of protecting the privilege when taking protective
action.
If a legal representative has already been appointed for the
client, the lawyer should ordinarily look to the representative for
decisions on behalf of the client. If a legal representative has not
been appointed, the lawyer should see to such an appointment
where it would serve the client’s best interests. Thus, if a disabled
client has substantial property that should be sold for the client’s
benefit, effective completion of the transaction ordinarily requires
appointment of a legal representative. In many circumstances,
however, appointment of a legal representative may be expensive or
traumatic for the client. Evaluation of these considerations is a
matter of professional judgment on the lawyer’s part.In matters
involving a minor, whether the lawyer should look to the parents as
natural guardians may depend on the type of proceeding or matter
in which the lawyer is representing the minor. If the lawyer
represents the guardian, as distinct from the ward, and is aware
that the guardian is acting adversely to the ward’s interest, the
lawyer may have an obligation to prevent or rectify the guardian’s
misconduct. See rule 4-1.2(d); Saadeh v. Connors, 166 So. 3d 959(Fla. 4th DCA 2015); Fla. AGO 96-94, 1996 WL 680981.
- 34 -
Taking protective action
If a lawyer reasonably believes that a client is at risk of
substantial physical, financial, or other harm unless action is
taken, and that a normal client-lawyer relationship cannot be
maintained as provided in subdivision (a) because the client lacks
sufficient capacity to communicate or make adequately considered
decisions in connection with the representation, then subdivision
(b) permits the lawyer to take protective measures deemed
necessary. These measures could include: consulting with family
members, using a reconsideration period to permit clarification or
improvement of circumstances, using voluntary surrogate decision-
making tools such as durable powers of attorney or consulting with
support groups, professional services, adult-protective agencies, or
other individuals or entities that have the ability to protect the
client. In taking any protective action, the lawyer should be guided
by such factors as the wishes and values of the client to the extent
known, the client’s best interests, and the goals of intruding into
the client’s decision-making autonomy to the least extent feasible,
maximizing client capacities, and respecting the client’s family and
social connections. Which factors the lawyer chooses to be guided
by will depend on the nature of the protective action to be taken,
some issues being governed by the client’s substituted judgment
and others by the client’s best interests.
Whether the client’s capacity has diminished may be shown by
such factors as: the client’s ability to articulate reasoning leading to
a decision; variability of state of mind and ability to appreciate
consequences of a decision; the substantive fairness of a decision;
and the consistency of a decision with the known long-term
commitments and values of the client. In appropriate
circumstances, the lawyer may seek guidance from an appropriate
diagnostician.
If a legal representative has not been appointed, the lawyer
should consider whether appointment of a guardian ad litem or
guardian is necessary to protect the client’s interests. Thus, if a
client with diminished capacity has substantial property that
should be sold for the client’s benefit, effective completion of the
transaction may require appointment of a legal representative. In
- 35 -
addition, rules of procedure in litigation sometimes provide that
minors or persons with diminished capacity must be represented by
a guardian or next friend. In many circumstances, however,
appointment of a legal representative may be more expensive or
traumatic for the client than circumstances require. Evaluation of
circumstances is a matter entrusted to the lawyer’s professional
judgment. In considering alternatives, the lawyer should be aware
of any law that requires the lawyer to advocate the least restrictive
action on behalf of the client.
Disclosure of client’s condition
Rules of procedure in litigation generally provide that minors or
persons suffering mental disability shall be represented by a
guardian or next friend if they do not have a general guardian.
However, disclosureDisclosure of the client’s disability
candiminished capacity could adversely affect the client’s interests.
The lawyer may seek guidance from an appropriate diagnostician.
For example, raising the question of diminished capacity could, in
some circumstances, lead to proceedings for involuntary
commitment. Information relating to the representation is
protected by rule 4-1.6. Therefore, unless authorized to do so, the
lawyer may not disclose confidential information. When taking
protective action under subdivision (b), the lawyer is impliedly
authorized to make the necessary disclosures. Nevertheless, given
the risks of disclosure, subdivision (c) limits what the lawyer may
disclose in consulting with other individuals or entities or seeking
the appointment of a legal representative. At the very least, the
lawyer should determine whether it is likely the person or entity
consulted with will act adversely to the client’s interests before
discussing matters related to the client. The lawyer’s position in
these cases is an unavoidably difficult one.
Emergency legal assistance
A lawyer may, but is not required to, take legal action to protect
a person with diminished capacity who is threatened with imminent
and irreparable harm to the person’s health, safety, or financial
interests, even though the person is unable to establish a client-
lawyer relationship or make or express considered judgments about
- 36 -
the matter when the person or another acting in good faith on that
person’s behalf has consulted with the lawyer. Even in an
emergency, however, the lawyer should not act unless the lawyer
reasonably believes the person has no alternative available. The
lawyer should take legal action on behalf of the person only to the
extent reasonably necessary to maintain the status quo or
otherwise avoid imminent and irreparable harm. A lawyer who
undertakes to represent a person in an exigent situation has the
same duties under these rules as the lawyer would with respect to a
client.
A lawyer who acts on behalf of a person with diminished
capacity in an emergency should keep the confidences of the person
as if dealing with a client, disclosing them only to the extent
necessary to accomplish the intended protective action. The lawyer
may disclose to any tribunal involved and to any other counsel
involved the nature of his or her relationship with the person while
maintaining the person’s confidential information.
4-5.8 PROCEDURES FOR LAWYERS LEAVING LAW FIRMS AND
DISSOLUTION OF LAW FIRMS
(a)-(e) [No Change]
Comment
The current rule of law regarding ownership of client files is
discussed in Donahue v. Vaughn, 721 So. 2d 356 (Fla. 5th DCA
1998), and Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th
DCA 1984), and Woodson v. Durocher, 588 So. 2d 644 (Fla. 5th DCA
1991). A lawyer leaving a law firm, when the law firm remains
available to continue legal representation, has no right nor
expectation to take client files without an agreement with the law
firm to do so should consult with the law firm regarding disposition
of client files. Ownership of client files may be the subject of
contract law and of the employment, partnership, or shareholder
agreement between the lawyer and the law firm.
While clients have the right to choose counsel, that choice may
implicate obligations such as a requirement to pay for legal services
previously rendered and costs expended in connection with the
- 37 -
representation as well as a reasonable fee for copying the client’s
file.
Whether individual members have any individual legal
obligations to a client is a matter of contract law, tort law, or court
rules that is outside the scope of rules governing lawyer conduct.
Generally, individual lawyers have suchthese obligations only if
provided for in the contract for representation. Nothing in this rule
or in the contract for representation may alter the ethical
obligations that individual lawyers have to clients as provided
elsewhere in these rules.
In most instances a lawyer leaving a law firm and the law firm
should engage in bona fide, good faith negotiations and craft a joint
communication providing adequate information to the client so that
the client may make a fully informed decision concerning future
representation. In those instances in which bona fide negotiations
are unsuccessful, unilateral communication may be made by the
departing lawyer or the law firm. In those circumstances, great
care should be taken to meet the obligation of adequate
communication and for this reason the specific requirements of
subdivisions (d)(1) and (3) are provided.
Lawyers and firms should engage in bona fide, good faith
negotiations within a reasonable period of time following their
knowledge of either the anticipated change in firm composition or, if
the anticipated change is unknown, within a reasonable period of
time after the change in firm composition. The actual notification
to clients should also occur within a reasonable period of time.
What is reasonable will depend on the circumstances, including the
nature of the matters in which the lawyer represented the clients
and whether the affected clients have deadlines that need to be met
within a short period of time.
For purposes of this rule, clients who should be notified of the
change in firm composition include current clients for whom the
departing lawyer has provided significant legal services with direct
client contact. Clients need not be notified of the departure of a
lawyer with whom the client has had no direct contact. Clients
whose files are closed need not be notified unless the former client
- 38 -
contacts the firm, at which point the firm should notify the former
client of the departure of any lawyer who performed significant legal
services for that former client and had direct contact with that
former client.
Although contact by telephone is not prohibited under this rule,
proof of compliance with the requirements of this rule may be
difficult unless the notification is in writing.
In order to comply with the requirements of this rule, both
departing lawyers and the law firm should be given access to the
names and contact information of all clients for whom the departing
lawyer has provided significant legal services and with whom the
lawyer has had direct contact.
If neither the departing lawyer nor the law firm intends to
continue representation of the affected clients, they may either
agree on a joint letter providing that information to those clients, or
may separately notify the affected clients after bona fide, good faith
negotiations have failed. Any obligation to give the client
reasonable notice, protect the client’s interests on withdrawal, and
seek permission of a court to withdraw may apply to both the
departing lawyer and lawyers remaining in the firm.
Most law firms have some written instrument creating the law
firm and specifying procedures to be employed upon dissolution of
the firm. However, when such an instrument does not exist or does
not adequately provide for procedures in the event of dissolution,
the provisions of this rule are provided so that dissolution of the law
firm does not disproportionately affect client rights.
As in instances of a lawyer departing a law firm, lawyers involved
in the dissolution of law firms have a continuing obligation to
provide adequate information to a client so that the client may
make informed decisions concerning future representation.
The Florida Bar has sample forms for notice to clients and
sample partnership and other contracts that are available to
members. The forms may be accessed on the bar’s website,
www.floridabar.org, or by calling The Florida Bar headquarters in
Tallahassee.
- 39 -
Lawyers involved in either a change in law firm composition or
law firm dissolution may have duties to notify the court if the
representation is in litigation. If the remaining law firm will
continue the representation of the client, no notification of the
change in firm composition to the court may be required, but such
a notification may be advisable. If the departing lawyer will take
over representation of the client, a motion for substitution of
counsel or a motion by the firm to withdraw from the representation
may be appropriate. If the departing lawyer and the law firm have
made the appropriate request for the client to select either the
departing lawyer or the law firm to continue the representation, but
the client has not yet responded, the law firm should consider
notifying the court of the change in firm composition, although
under ordinary circumstances, absent an agreement to the
contrary, the firm will continue the representation in the interim. If
the departing lawyer and the law firm have agreed regarding who
will continue handling the client’s matters then, absent
disagreement by the client, the agreement normally will determine
whether the departing lawyer or the law firm will continue the
representation.
RULE 4-6.1 PRO BONO PUBLIC SERVICE
(a)-(c) [No Change]
(d) Reporting Requirement. Each member of the bar
shallmust annually report whether the member has satisfied the
member’s professional responsibility to provide pro bono legal
services to the poor. Each member shall report this information
through a simplified reporting form that is made a part of the
member’s annual membership fees statement as developed by The
Florida Bar. At minimum, the statement must include the number
of hours of pro bono legal services provided and the dollar amount
of contributions to pro bono legal services organizations. The form
will contain the following categories from which each member will
be allowed to choose in reporting whether the member has provided
pro bono legal services to the poor:
(1) I have personally provided _____ hours of pro bono legal
services;
- 40 -
(2) I have provided pro bono legal services collectively by:
(indicate type of case and manner in which service was
provided);
(3) I have contributed $__________ to: (indicate organization
to which funds were provided);
(4) I have provided legal services to the poor in the following
special manner: (indicate manner in which services were
provided); or
(5) I have been unable to provide pro bono legal services to
the poor this year; or
(6) I am deferred from the provision of pro bono legal services
to the poor because I am: (indicate whether lawyer is: a
member of the judiciary or judicial staff; a government lawyer
prohibited by statute, rule, or regulation from providing services;
retired, or inactive).
The failure to report this information shall constitutes a
disciplinary offense under these rules.
(e) Credit Toward Professional Responsibility in Future
Years. In the event that more than 20 hours of pro bono legal
service to the poor are provided and reported in any 1 year, the
hours in excess of 20 hours may be carried forward and reported as
such for up to 2 succeeding years for the purpose of determining
whether a lawyer has fulfilled the professional responsibility to
provide pro bono legal service to the poor in those succeeding years.
(f) [No Change]
Comment
Pro bono legal service to the poor is an integral and particular
part of a lawyer’s pro bono public service responsibility. As our
society has become one in which rights and responsibilities are
increasingly defined in legal terms, access to legal services has
become of critical importance. This is true for all people, be they
rich, poor, or of moderate means. However, because the legal
- 41 -
problems of the poor often involve areas of basic need, their
inability to obtain legal services can have dire consequences. The
vast unmet legal needs of the poor in Florida have been recognized
by the Supreme Court of Florida and by several studies undertaken
in Florida over the past two2 decades. The Supreme Court of
Florida has further recognized the necessity of finding a solution to
the problem of providing the poor greater access to legal service and
the unique role of lawyers in our adversarial system of representing
and defending persons against the actions and conduct of
governmental entities, individuals, and nongovernmental entities.
As an officer of the court, each member of The Florida Bar in good
standing has a professional responsibility to provide pro bono legal
service to the poor. Certain lawyers, however, are prohibited from
performing legal services by constitutional, statutory, rule, or other
regulatory prohibitions. Consequently, members of the judiciary
and their staffs, government lawyers who are prohibited from
performing legal services by constitutional, statutory, rule, or
regulatory prohibitions, members of the bar who are retired,
inactive, or suspended, or who have been placed on the inactive list
for incapacity not related to discipline are deferred from
participation in this program.
In discharging the professional responsibility to provide pro bono
legal service to the poor, each lawyer should furnish a minimum of
twenty20 hours of pro bono legal service to the poor annually or
contribute $350 to a legal aid organization. “Pro bono legal service”
means legal service rendered without charge or expectation of a fee
for the lawyer at the time the service commences. Legal services
written off as bad debts do not qualify as pro bono service. Most
pro bono service should involve civil proceedings given that
government must provide indigent representation in most criminal
matters. Pro bono legal service to the poor is to be provided not
only to those persons whose household incomes are below the
federal poverty standard but also to those persons frequently
referred to as the “working poor.” Lawyers providing pro bono legal
service on their own need not undertake an investigation to
determine client eligibility. Rather, a good faith determination by
the lawyer of client eligibility is sufficient. Pro bono legal service to
the poor need not be provided only through legal services to
- 42 -
individuals; it can also be provided through legal services to
charitable, religious, or educational organizations whose overall
mission and activities are designed predominately to address the
needs of the poor. For example, legal service to organizations such
as a church, civic, or community service organizations relating to a
project seeking to address the problems of the poor would qualify.
While the personal involvement of each lawyer in the provision of
pro bono legal service to the poor is generally preferable, such
personal involvement may not always be possible or produce the
ultimate desired result, that is, a significant maximum increase in
the quantity and quality of legal service provided to the poor. The
annual contribution alternative recognizes a lawyer’s professional
responsibility to provide financial assistance to increase and
improve the delivery of legal service to the poor when a lawyer
cannot or decides not to provide legal service to the poor through
the contribution of time. Also, there is no prohibition against a
lawyer contributing a combination of hours and financial support.
The limited provision allowing for collective satisfaction of the 20-
hour standard recognizes the importance of encouraging law firms
to undertake the pro bono legal representation of the poor in
substantial, complex matters requiring significant expenditures of
law firm resources and time and costs, such as class actions and
post-conviction death penalty appeal cases, and through the
establishment of full-time community or public service staffs.
When a law firm uses collective satisfaction, the total hours of legal
services provided in such substantial, complex matters or through a
full-time community or public service staff should be credited
among the firm’s lawyers in a fair and reasonable manner as
determined by the firm.
The reporting requirement is designed to provide a sound basis
for evaluating the results achieved by this rule, reveal the strengths
and weaknesses of the pro bono plan, and to remind lawyers of
their professional responsibility under this rule. The fourth
alternative of the reporting requirements allows members to
indicate that they have fulfilled their service in some manner not
specifically envisioned by the plan.
- 43 -
The 20-hour standard for the provision of pro bono legal service
to the poor is a minimum. Additional hours of service are to be
encouraged. Many lawyers will, as they have before the adoption of
this rule, contribute many more hours than the minimum. To
ensure that a lawyer receives credit for the time required to handle
a particularly involved matter, this rule provides that the lawyer
may carry forward, over the next 2 successive years, any time
expended in excess of 20 hours in any 1 year.
RULE 4-7.13 DECEPTIVE AND INHERENTLY MISLEADING
ADVERTISEMENTS
A lawyer may not engage in deceptive or inherently misleading
advertising.
(a) [No Change]
(b) Examples of Deceptive and Inherently Misleading
Advertisements. Deceptive or inherently misleading
advertisements include, but are not limited to, advertisements that
contain:
(1) statements or information that can reasonably be
interpreted by a prospective client can reasonably interpret as a
prediction or guaranty of success or specific results;
(2) [No Change]
(3) comparisons of lawyers or statements, words, or phrases
that characterize a lawyer’s or law firm’s skills, experience,
reputation, or record, unless suchthe characterization is
objectively verifiable;
(4)-(5) [No Change]
(6) a dramatization of an actual or fictitious event, unless the
dramatization contains the following prominently displayed
notice: “DRAMATIZATION. NOT AN ACTUAL EVENT.”;
(7) When an advertisement includes an actor purporting to
be engaged in a particular profession or occupation, unless the
- 44 -
advertisement must includes the following prominently displayed
notice: “ACTOR. NOT AN ACTUAL [ . . . . ]”;
(78) statements, trade names, telephone numbers, Internet
addresses, images, sounds, videos, or dramatizations that state
or imply that the lawyer will engage in conduct or tactics that
are prohibited by the Rules of Professional Conduct or any law
or court rule;
(89) a testimonial:
(A)-(F) [No Change]
(910) a statement or implication that The Florida Bar has
approved an advertisement or a lawyer, except a statement that
the lawyer is licensed to practice in Florida or has been certified
pursuant to chapter 6, Rules Regulating theThe Florida Bar; or
(1011) a judicial, executive, or legislative branch title, unless
accompanied by clear modifiers and placed subsequent toafter
the person’s name in reference to a current, former, or retired
judicial, executive, or legislative branch official currently
engaged in the practice of law. For example, a former judge may
not state “Judge Doe (retired)” or “Judge Doe, former circuit
judge.” She may state “Jane Doe, Florida Bar member, former
circuit judge” or “Jane Doe, retired circuit judge….”; or
(12) a statement or implication that another lawyer or law
firm is part of, is associated with, or affiliated with the
advertising law firm when that is not the case, including contact
or other information presented in a way that misleads a person
searching for a particular lawyer or law firm, or for information
regarding a particular lawyer or law firm, to unknowingly
contact a different lawyer or law firm.
- 45 -
Comment
Material Omissionsomissions
[No Change]
Implied Existenceexistence of Nonexistent Factnonexistent fact
[No Change]
Predictions of Successsuccess
[No Change]
Past Resultsresults
The prohibitions in subdivisions (b)(1) and (b)(2) of this rule
preclude advertisements about results obtained on behalf of a
client, such as the amount of a damage award or the lawyer’s
record in obtaining favorable verdicts, if the results are not
objectively verifiable or are misleading, either alone or in the context
in which they are used. For example, an advertised result that is
atypical of persons under similar circumstances is likely to be
misleading. A result that omits pertinent information, such as
failing to disclose that a specific judgment was uncontested or
obtained by default, or failing to disclose that the judgment is far
short of the client’s actual damages, is also misleading. The
information may create the unjustified expectation that similar
results can be obtained for others without reference to the specific
factual and legal circumstances. An example of a past result that
can be objectively verified is that a lawyer has obtained acquittals in
all charges in 4 criminal defense cases. On the other hand, general
statements such as, “I have successfully represented clients,” or “I
have won numerous appellate cases,” may or may not be
sufficiently objectively verifiable. For example, a lawyer may
interpret the words “successful” or “won” in a manner different from
the average prospective client. In a criminal law context, the lawyer
may interpret the word “successful” to mean a conviction to a lesser
charge or a lower sentence than recommended by the prosecutor,
while the average prospective client likely would interpret the words
“successful” or “won” to mean an acquittal.
- 46 -
Rule 4-1.6(a), Rules Regulating theThe Florida Bar, prohibits a
lawyer from voluntarily disclosing any information regarding a
representation without a client’s informed consent, unless one of
the exceptions to rule 4-1.6 applies. A lawyer who wishes to
advertise information about past results must have the affected
client’s informed consent. The fact that some or all of the
information a lawyer may wish to advertise is in the public record
does not obviate the need for the client’s informed consent.
Comparisons
[No Change]
Characterization of Skills, Experience, Reputation or
Recordskills, experience, reputation, or record
[No Change]
Areas of Practicepractice
[No Change]
Dramatizations
[No Change]
Implying Lawyer Will Violate Rules of Conduct or Lawlawyer
will violate rules of conduct or law
[No Change]
Testimonials
[No Change]
Florida Bar Approval of Ad or Lawyerbar approval of ad or
lawyer
An advertisement may not state or imply that either the
advertisement or the lawyer has been approved by The Florida Bar.
Such a statement or implication implies that The Florida Bar
endorses a particular lawyer. Statements prohibited by this
provision include, “This advertisement was approved by The Florida
- 47 -
Bar.” A lawyer referral service also may not state that it is a
“Florida Bar approved lawyer referral service,” unless the service is
a not-for-profit lawyer referral service approved under chapter 8 of
the Rules Regulating theThe Florida Bar. A qualifying provider also
may not state that it is a “Florida Bar approved qualifying provider”
or that its advertising is approved by The Florida Bar.
Judicial, Executive, and Legislative Titlesexecutive, and
legislative titles
This rule prohibits use of a judicial, executive, or legislative
branch title, unless accompanied by clear modifiers and placed
subsequent toafter the person’s name, when used to refer to a
current or former officer of the judicial, executive, or legislative
branch. Use of a title before a name is inherently misleading in that
it implies that the current or former officer has improper influence.
Thus, the titles Senator Doe, Representative Smith, Judge Doe
(Retired), Former Justice Doe, Retired Judge Smith, Justice Smith
(Retired), Governor (Retired) Doe, Former Senator Smith, and other
similar titles used as titles in conjunction with the lawyer’s name
are prohibited by this rule. This includes, but is not limited to, use
of the title in advertisements and written communications,
computer-accessed communications, letterhead, and business
cards.
However, an accurate representation of one’s judicial, executive,
or legislative experience is permitted if the reference is subsequent
toafter the lawyer’s name and is clearly modified by terms such as
“former” or “retired.” For example, a former judge may state “Jane
Doe, Florida Bar member, former circuit judge” or “Jane Doe,
retired circuit judge.”
As another example, a former state representative may not
include “Representative Smith (former)” or “Representative Smith,
retired” in an advertisement, letterhead, or business card.
However, a former representative may state, “John Smith, Florida
Bar member, former state representative.”
Further, an accurate representation of one’s judicial, executive,
or legislative experience is permitted in reference to background
- 48 -
and experience in biographies, curriculum vitae, and resumes if
accompanied by clear modifiers and placed subsequent toafter the
person’s name. For example, the statement “John Jones was
governor of the State of Florida from [ . . . years of service . . . ]”
would be permissible.
Also, the rule governs attorneylawyer advertising. It does not
apply to pleadings filed in a court. A practicing attorneylawyer who
is a former or retired judge may not use the title in any form in a
court pleading. A former or retired judge who uses that former or
retired judge’s previous title of “Judge” in a pleading could be
sanctioned.
Implication of association or affiliation with another lawyer or
law firm
This rule prohibits any statement or implication that a lawyer or
law firm is affiliated or associated with the advertising lawyer or law
firm when that is not the case. Lawyers may not state or imply
another lawyer is part of the advertising firm if the statement or
implication is untrue. For example, when a lawyer leaves a law
firm, the firm must remove the lawyer’s name from the firm’s
letterhead, website, advertisements, and other communications
about the law firm. An example of impermissible advertising would
be including the name of a lawyer or law firm that is not part of the
advertising law firm in an Internet advertisement or sponsored link
that is displayed when the non-affiliated lawyer or law firm’s name
is used as a search term when the advertisement does not clearly
indicate that the non-affiliated lawyer or law firm is not part of the
advertising law firm. Another example of impermissible conduct is
use of another lawyer or law firm name as an Internet search term
that triggers the display of an advertisement that does not clearly
indicate that the advertisement is for a lawyer or law firm that is
not the lawyer or law firm used as the search term. The triggered
advertisement would not be misleading if the first text displayed is
the name of the advertising lawyer or law firm and, if the displayed
law firm name is a trade name that does not contain the name of a
current or deceased partner, the name of the lawyer responsible for
the advertisement is also displayed as the first text.
- 49 -
RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS
(a) Solicitation. Except as provided in subdivision (b) of this
rule, a lawyer may not:
(1) solicit in person, or permit employees or agents of the
lawyer to solicit in person on the lawyer’s behalf, professional
employment from a prospective client with whom the lawyer has
no family or prior professional relationship when a significant
motive for the lawyer’s doing so is the lawyer’s pecuniary gain.
The term “solicit” includes contact in person, by telephone, by
electronic means that include real-time communication face-to-
face such as video telephone or video conference, or by other
communication directed to a specific recipient that does not
meet the requirements of subdivision (b) of this rule and rules 4-
7.11 through 4-7.17 of these rules.; and
(2) [No Change]
(b) Written Communication.
(1) [No Change]
(2) Written communications to prospective clients for the
purpose of obtaining professional employment that are not
prohibited by subdivision (b)(1) are subject to the following
requirements:
(A) SuchThese communications are subject to the
requirements of 4-7.11 through 4-7.17 of these rules.
(B)-(I) [No Change]
(3) [No Change]
Comment
Permissible contact
A lawyer may initiate the routine mutual exchange of contact
information with prospective clients who are attending the same
business or professional conference or meeting or business-related
social gathering if the lawyer initiates no further discussion of a
- 50 -
specific legal matter. Similarly, a lawyer may initiate the exchange
of contact information and profiles via a specific social media
platform that is established for the purpose of businesses and
professionals exchanging this type of information if the lawyer
initiates no discussion of specific legal matters. If a prospective
client then initiates discussion of a specific legal matter, the lawyer
should decline to discuss the matter at the initial contact and defer
further discussion to a more appropriate location when the
discussion would endanger a prospective client’s confidentiality.
Lawyers should not interpret the above to allow a lawyer who knows
a person has a specific legal problem to go to a specific conference
or meeting where that prospective client will be in attendance in
order to initiate the exchange of contact information. An accident
scene, a hospital room of an injured person, or a doctor’s office are
not business or professional conferences or meetings within the
meaning of the discussion above.
Prior Professional Relationshipprofessional relationship
[No Change]
Disclosing Where the Lawyer Obtained Informationwhere the
lawyer obtained information
In addition, the lawyer or law firm should reveal the source of
information used to determine that the recipient has a potential
legal problem. Disclosure of the information source will help the
recipient to understand the extent of knowledge the lawyer or law
firm has regarding the recipient’s particular situation and will avoid
misleading the recipient into believing that the lawyer has
particularized knowledge about the recipient’s matter if the lawyer
does not. The lawyer or law firm must disclose sufficient
information or explanation to allow the recipient to locate the
information that prompted the communication from the lawyer.
Alternatively, the direct mail advertisement would comply with
this rule if the advertisement discloses how much information the
lawyer has about the matter.
- 51 -
For example, a direct mail advertisement for criminal defense
matters would comply if it stated that the lawyer’s only knowledge
about the prospective client’s matter is the client’s name, contact
information, date of arrest, and charge. In the context of securities
arbitration, a direct mail advertisement would comply with this
requirement by stating, if true, that the lawyer obtained information
from a list of investors, and the only information on that list is the
prospective client’s name, address, and the fact that the prospective
client invested in a specific company.
Group or Prepaid Legal Services Plansprepaid legal service
plans
This rule would not prohibit a lawyer from contacting
representatives of organizations or groups that may be interested in
establishing a group or prepaid legal plan for its members,
insureds, beneficiaries, or other third parties for the purpose of
informing such entities of the availability of, and details concerning,
the plan or arrangement that the lawyer or the lawyer’s law firm is
willing to offer. This form of communication is not directed to a
specific prospective client known to need legal services related to a
particular matter. Rather, it is usually addressed to an individual
acting in a fiduciary capacity seeking a supplier of legal services for
others who may, if they choose, become clients of the lawyer.
Under these circumstances, the activity that the lawyer undertakes
in communicating with suchthese representatives and the type of
information transmitted to the individual are functionally similar to
and serve the same purpose as advertising permitted under other
rules in this subchapter.
RULE 5-1.2 TRUST ACCOUNTING RECORDS AND PROCEDURES
(a) Applicability. The provisions of these rules apply to all
trust funds received or disbursed by members of The Florida Bar in
the course of their professional practice of law as members of The
Florida Bar except special trust funds received or disbursed by a
lawyer as guardian, personal representative, receiver, or in a similar
capacity, such as trustee under a specific trust document, where
the trust funds are maintained in a segregated special trust account
and not the general trust account and where this special trust
- 52 -
position has been created, approved, or sanctioned by law or an
order of a court that has authority or duty to issue orders
pertaining to maintenance of suchthat special trust account. These
rules apply to matters in which a choice of laws analysis indicates
that suchthe matters are governed by the laws of Florida.
As set forth in this rule, “lawyer” denotes a person who is a
member of The Florida Bar or otherwise authorized to practice in
any court of the state of Florida. “Law firm” denotes a lawyer or
lawyers in a private firm who handle client trust funds.
(b) Minimum Trust Accounting Records. Records may be
maintained in their original format or stored in digital media, as
long as the copies include all data contained in the original
documents and may be produced when required. The following are
the minimum trust accounting records that must be maintained:
(1)-(4) [No Change]
(5) original or clearly legible digital copies of all records
regarding all wire transfers into or out of the trust account,
which, at a minimum, must include the receiving and sending
financial institutions’ ABA routing numbers and names, and the
receiving and sending account holder’s name, address, and
account number. If the receiving financial institution processes
through a correspondent or intermediary bank, then the records
must include the ABA routing number and name for the
intermediary bank. The wire transfer information must also
include the name of the client or matter for which the funds
were transferred or received, and the purpose of the wire
transfer, (e.g., “payment on invoice 1234” or “John Doe closing”).
(6) a separate cash receipts and disbursements journal,
including columns for receipts, disbursements, transfers, and
the account balance, and containing at least:
(A)-(D) [No Change]
(7) a separate file or ledger with an individual card or page
for each client or matter, showing all individual receipts,
- 53 -
disbursements, or transfers and any unexpended balance, and
containing:
(A)-(D) [No Change]
(8) [No Change]
(c) Responsibility of Lawyers for Firm Trust Accounts and
Reporting.
(1) Every law firm with more than 1 lawyer must have a
written plan in place for supervision and compliance with this
rule for each of the firm’s trust account(s), which plan must be
disseminated to each lawyer in the firm. The written plan must
include the name(s)name of the signatorieseach signatory for the
law firm’s trust accounts, the name(s)name of the lawyer(s)each
lawyer who areis responsible for reconciliation of the law firm’s
trust account(s) monthly and annually, and the name(s)name of
the lawyer(s)each lawyer who areis responsible for answering any
questions that lawyers in the firm may have about the firm’s
trust account(s). This written plan must be updated and re-
issued to each lawyer in the firm whenever there are material
changes to the plan, such as a change in the trust account
signatories and/oror lawyer(s) responsible for reconciliation of
the firm’s trust account(s).
(2) Every lawyer is responsible for that lawyer’s own actions
regarding trust account funds subject to the requirements of
chapter 4 of these rules. Any lawyer who has actual knowledge
that the firm’s trust account(s) or trust accounting procedures
are not in compliance with chapter 5 may report the
noncompliance to the managing partner or shareholder of the
lawyer’s firm. If the noncompliance is not corrected within a
reasonable time, the lawyer must report the noncompliance to
staff counsel for the bar if required to do so pursuant tounder
the reporting requirements of chapter 4.
(d) Minimum Trust Accounting Procedures. The minimum
trust accounting procedures that must be followed by all members
of The Florida Bar (when a choice of laws analysis indicates that the
- 54 -
laws of Florida apply) who receive or disburse trust money or
property are as follows:
(1)-(4) [No Change]
(5) The lawyer must file with The Florida Bar, between June
1 and August 15 of each year, a trust accounting certificate
showing compliance with these rules on a form approved by the
board of governors. If the lawyer fails to file the trust accounting
certificate, the lawyer will be deemed a delinquent member and
ineligible to practice law. The Florida Bar will send written
notice to the last official bar address of each member who has
not completed and filed the trust accounting certificate with The
Florida Bar by August 15. Written notice may be by registered
or certified mail, or by return receipt electronic mail. The
member is considered a delinquent member on failure to file the
trust accounting certificate with The Florida Bar by September
30.
(e) Electronic Wire Transfers. Authorized electronic transfers
from a lawyer or law firm’s trust account are limited to:
(1)-(2) [No Change]
(3) money transferred to the lawyer for fees whichthat are
earned in connection with the representation and whichthat are
not in dispute; or
(4) [No Change]
(f) Record Retention. A lawyer or law firm that receives and
disburses client or third-party funds or property must maintain the
records required by this chapter for 6 years subsequent toafter the
final conclusion of each representation in which the trust funds or
property were received.
(1) On dissolution of a law firm or of any legal professional
corporation, the partners shallmust make reasonable
arrangements for the maintenance and retention of client trust
account records specified in this rule.
- 55 -
(2) On the sale of a law practice, the seller must make
reasonable arrangements for the maintenance and retention of
trust account records specified in this rule consistent with other
requirements regarding the sale of a law firm set forth in
Chapterchapter 4 of these rules.
(g) [No Change]
(h) Cost of Audit. Audits conducted in any of the
circumstances enumerated in this rule will be at the cost of the
lawyer audited only when the audit reveals that the lawyer was not
in substantial compliance with the trust accounting requirements.
It will be the obligation of any lawyer who is being audited to
produce all records and papers concerning property and funds held
in trust and to provide such explanations as may be required for
the audit. Records of general accounts are not required to be
produced, except to verify that trust money has not been deposited
in them. If it has been determined that trust money has been
deposited into a general account, all of the transactions pertaining
to any firm account will be subject to audit.
(i) [No Change]
RULE 6-3.14 SUNSET OF CERTIFICATION AREAS
If any certification committee has not received an initial
certification application for 5 consecutive years, the Board of Legal
Specialization and Education will petition the Supreme Court of
Florida to close the certification area to initial applicants. The
recertification standards of the certification area will remain in
effect.
RULE 7-1.3 ADMINISTRATION
The Clients’ Security Fund Program will serves as the staff
agency for Clients’ Security Fund matters with primary
responsibility for:
(a) [No Change]
- 56 -
(b) closing claims received whichthat are clearly not covered by
the fund;
(c) closing claims when the underlying grievance matter has
been closed by the bar without discipline, when the lawyer remains
a member in good standing, the claimant has died before a
recommendation has been made by the committee, or the claimant
has withdrawn the claim, except as provided in this chapter;
(d) preparing of the committee agenda and recording the
minutes of the committee meetings;
(e) presenting of claims to the board of governors;
(f)-(i) [No Change]
RULE 7-1.4 DEFINITIONS
For this chapter these terms have the following meanings:
(a)-(c) [No Change]
(d) The Committee. The “committee” means the “Clients’
Security Fund Committee,” a standing committee of the bar.
(e) [No Change]
(f) Reimbursable Loss. “Reimbursable loss” means a loss
suffered by a claimant by reason of misappropriation,
embezzlement, or other wrongful taking or conversion of money or
other property by a member of The Florida Bar when acting:
(1)-(4) [No Change]
(5) as the claimant’s lawyer where a nonlawyer employee
commits the misappropriation, embezzlement, or other wrongful
taking or conversion provided, however, that such a relationship
was not for a wrongful purpose and the claimant was not guilty
of any bad faith in putting the money or other property in
possession or control of the lawyer.
(g)-(i) [No Change]
- 57 -
Comment
Rule 7-1.4 is the definitional section of the Clients’ Security
Fund rules. Subdivision (f) defines what is a reimbursable loss. If a
claim does not fall within the definition of a reimbursable loss, a
claim cannot be paid.
Central to the definition of a reimbursable loss is the existence of
a lawyer-client relationship. If the lawyer was not acting in the
capacity of a lawyer, the loss is not reimbursable. For this reason,
subdivision (f)(2) states that the lawyer must be acting in a fiduciary
capacity customary to the practice of law. This requires that but for
the fact that the individual was a lawyer, the individual would not
have been acting in the fiduciary capacity. For instance, if the
lawyer is appointed by the court to act as personal representative,
the relationship would be customary to the practice of law, and the
loss reimbursable. On the other hand, if an individual is acting in a
capacity unrelated to a lawyer-client relationship where theirthat
person’s status as a lawyer is not material to the claim, the loss
would not be reimbursable.
As noted in the Rules of Professional Conduct, when a client
contracts for legal services, the client establishes a relationship not
only with the individual lawyer but may also establish a
relationship with the law firm. Subdivision (f)(4) recognizes this. As
a result, for purposes of determining whether the claimed loss is a
reimbursable loss, it is assumed that the relationship is with both
the individual lawyer and the law firm. Therefore, if a client enters
into a lawyer-client relationship with lawyer A but another lawyer in
the law firm commits the misappropriation, embezzlement, or other
wrongful taking or conversion of money or other property, the claim
may be considered a reimbursable loss. All other prerequisites to
payment apply to the claim and will be considered in analyzing the
claim and recommending denial or payment. This includes, but is
not limited to, the requirement that the defalcating lawyer no longer
be a member in good standing. However, it is not required that the
lawyer the claimant hired, lawyer A, be disciplined or no longer be
in good standing as lawyer A may be innocent of any ethical
wrongdoing not having taken part in the theft. Failure to consider
such a loss a reimbursable loss will unjustly penalize the claimant
- 58 -
and subject lawyer A to discipline for theft by others over whom the
lawyer has no control.
Subdivision (f)(5) creates an exception for the requirement that a
lawyer-client relationship exist if the theft is by a nonlawyer
employee of the lawyer or law firm. As noted above, the claimant
has hired the lawyer or law firm and should not be penalized for
theft by a nonlawyer employee of the firm over whom The Florida
Bar does not have disciplinary jurisdiction. Consequently, if the
theft is by a nonlawyer employee, the claim may be considered a
reimbursable loss and analyzed as provided elsewhere in this
chapter.
RULE 7-2.3 PAYMENTS
(a) Payment is Discretionary. The board or the committee
may grant monetary relief up to the amount of theirits authority as
set forth in this chapter if either determines that a reimbursable
loss has been sustained by a claimant and the circumstances
warrant relief, taking into consideration the resources of the fund
and the claim’s priority. Any grant of monetary relief is solely at the
board or the committee’s discretion within its respective authority
and is not a right of any claimant. No reimbursement will be made
from the fund unless and until reimbursement has been authorized
by the board or the committee within its respective authority, and
the claimant has executed assignments or other documents as
reasonably requested by the board or committee. Staff may require
appropriate documentation that conditions imposed on
reimbursement of the claim have been satisfied and that the
identity of the proper party or party’s representative is verified prior
to payment. Neither the bar, the board, the committee, nor staff
will incur any liability for nonpayment of claims or for erroneous
payments. The decision of the board is final and not subject to
appeal or other review.
(b)-(c) [No Change]
Comment
Payment from the Clients’ Security Fund is discretionary. There
is no right to payment. If approved, the amount of payment is
- 59 -
limited by these rules and the amount in the fund. Approved
claims may include only the amount paid in attorney’s fees or the
amount of the misappropriation. Other damages incurred by the
claimant will not be reimbursed. For example, the fund will not
reimburse loss of interest, charges for telephone calls or travel, the
difference between the settlement amount and the amount the
claimant thought the matter should have been settled for, the loss
in value of an item or property, or other sums not paid directly to
the lawyer. If it is determined that part of the money
misappropriated by the lawyer included sums to be used to pay a
claimed lien, the amount of the lien will not be deducted from the
loss. The claimant is liable for the lien.
Before payment, staff will contact the claimant to obtain
information necessary for payment. If staff learns that the claimant
has died, staff will request documentation regarding the claimant’s
estate and may only issue payment after the documentation has
been provided and the proper payee is identified. If staff is in doubt
regarding the proper payee, staff will seek guidance from a
designated reviewer.
RULE 7-2.4 PREREQUISITES TO PAYMENT
(a) Members in Good Standing. Payments from the fund will
not be made unless the lawyer is suspended, deceased, placed on
the inactive list for incapacity not related to misconduct, or has had
the member’s status as a member of The Florida Bar revoked or
terminated. However, if the theft is by a nonlawyer employee of the
lawyer or law firm, a payment may be made even if the lawyer
remains in good standing. A claim against a member in good
standing will be held until final disposition of the disciplinary
matter. A claim alleging that a suspended lawyer took fees for legal
services during the periodafter the entry of an order of suspension
will be processed in accordance with these rules. A claim alleging
that a lawyer who has had the lawyer’s status as a member of The
Florida Bar revoked or terminated took fees for legal services after
the lawyer’s status was revoked or terminated will be closed by
staff.
- 60 -
(b) Complaints Required. The filing of a grievance complaint
with The Florida Bar against the attorneylawyer claimed against
may be required as a prerequisite to the consideration of a Clients’
Security Fund claim. The committee may require as prerequisites
to the granting of relief from the fund that the claimant file a
complaint against the lawyer with the appropriate state attorney’s
office; file a civil suit in an appropriate court; or cooperate with the
committee in appropriate proceedings against the lawyer. It is not a
prerequisite to claims against deceased members that discipline
was imposed or pending at the time of the death.
(c)-(d) [No Change]
(e) Proof of Payment. A claimant must provide credible
evidence that the funds the claimant seeks to recover were in the
lawyer’s possession or control before a claim may be approved. The
following may be used to establish the payment, the amount of the
payment, or the amount of the loss:
(1)-(3) [No Change]
(4) a finding in an audit performed by a Florida Bar staff
auditor.
Comment
At times, the fund receives claims against a lawyer where the
theft was by a nonlawyer employee of the lawyer or law firm. As
stated elsewhere in these rules, the fund may require that the
claimant file a grievance complaint against the lawyer. Rather than
resulting in suspension or disbarment, the grievance may result in
diversion, a finding of minor misconduct, or a finding of probable
cause. Should this be the case, the lawyer would remain in good
standing. As the claimant hired the lawyer or law firm, the
claimant should not be penalized for theft by a nonlawyer employee
of the firm and discipline should not be imposed for the sole
purpose of meeting a prerequisite to payment. Therefore, under
this rule, the status of the lawyer, in and of itself, will not act as a
bar to payment of claims where the theft is by a nonlawyer
employee of the lawyer or law firm. All other prerequisites to
payment, including, but not limited to, exhaustion of remedies,
- 61 -
apply to the claim and will be considered in analyzing the claim and
recommending denial or payment. The prerequisite of exhaustion
of remedies may include the claimant filing a civil suit against the
lawyer, law firm, or nonlawyer employee.
This rule requires that a claim be filed within 2 years after the
date the disciplinary action becomes final. If a claim is brought due
to the death of the lawyer, the claim must be brought within 2 years
after the date of the lawyer’s death. However, for good cause
shown, a claim filed beyond the 2-year period may be considered.
The following are examples of good cause:
(i) conduct on the part of the lawyer such that led the
claimant wasto reasonably led to believe that the lawyer was
working on the case, had not resolved the matter, or would
reimburse the claimant for the loss; or
(ii) an award of restitution by a court or order by the
supreme court that the lawyer must repay the claimant prior to
reinstatement if the claimant reasonably relied on the award or
order and delayed filing a claim in anticipation of
reimbursement; or
(iii) conduct on the part of the claimant showing the claimant
was trying to exhaust remedies.
However, even if good cause is found, a claim must be filed
within 4 years from the date the disciplinary action becomes final or
the date of the lawyer’s death. Claims filed outside of this time
period will be closed.
RULE 7-2.5 CLAIMS ORDINARILY DENIED
(a)-(b) [No Change]
(c) Claims by Entities. The committee and the board
ordinarily will not consider claims by government agencies,
institutional lenders, insurance companies, publicly owned entities
including their subsidiaries and affiliates, entities whichthat fail to
disclose to the committee the names and addresses of their direct
- 62 -
and indirect beneficial and record owners, and subrogees, brought
on their behalf and not as representatives.
(d) Payment from Other Sources. No claim will be approved
where the defalcating lawyer was bonded in any capacity whichthat
protected the rights of the claimant, where the defalcating lawyer
was insured under a lawyers’ professional liability policy or a policy
of a similar nature whichthat protected the rights of the claimant,
or where the claim might beis payable from any other source.
However, the committee, may recommend payment of the difference
of what the claimant received from the bond, insurance policy, or
other source and the amount of the loss if the monies from the
bond, insurance policy, or other source were exhausted and
additional recovery cannot be sought from the bond, insurance
policy, or other source.
(e) Useful Services. The claim may be denied if services were
performed that were useful to the claimant.
(1) A lawyer may be deemed to have provided useful services
to a claimant when, after accepting a fee from the claimant, the
lawyer:
(1A) files a pleading or other document on behalf of the
clientclaimant that moves the client’sclaimant’s case or
matter forward or protects the client’sclaimant’s interests,
regardless of the quality of the pleading or other document;
(2B) engages in substantive communication about the
matter for which the lawyer was hired;
(3C) attends a court proceeding or proceedings that
advance the case or cause of the clientclaimant or protects
the client’sclaimant’s interests;
(4D) engages in investigation or discovery;
(5E) attends a mediation or arbitration or other
alternative dispute resolution proceeding;
- 63 -
(6F) prepares a document or documents minimally
suitable for use by the clientclaimant in a legal proceeding or
transactional matter; or
(7G) provides legal advice and counsel to the
clientclaimant.
(2) The lawyer will not be deemed to have provided useful
services when the services were rendered for a claimant who
hired the lawyer:
(A) after the entry of an order of suspension; or
(B) before the entry of an order of suspension if the
services were on a new matter accepted or begun after the
entry of the order of suspension.
(f) [No Change]
(g) Unclean Hands. A claim may be denied if the committee
finds that the claimant entered into the lawyer-client relationship
for a wrongful purpose; acted in bad faith in putting the money or
other property in possession or control of the lawyer; used the
lawyer-client relationship or knowingly permitted the lawyer to use
the lawyer-client relationship to commit fraud, deception, theft, or
other misconduct; or if the claimant’s conduct reflects acts or
omissions amounting to unclean hands on the part of the claimant
in connection with the claimed loss or the underlying lawyer-client
relationship.
Comment
The existence of a lawyer-client relationship is central to the
issue of whether a loss is reimbursable. If the lawyer is not acting
in the capacity of a lawyer, the loss is not reimbursable. Therefore,
the loss will be denied if an individual is acting in a capacity
unrelated to a lawyer-client relationship where the status as a
lawyer is not material to the claim, the loss will be denied.
The rules allow the committee to recommend payment of the
difference between what the claimant received and the loss when
- 64 -
payment is available from specific other sources. However, the
claim will be denied for failure to exhaust remedies if the claimant
does not participate in the process to receive payment available
from other sources, the claim will be denied for failure to exhaust
remedies.
Claims based on investment advice ordinarily are not
reimbursable. Failure of an investment to perform as represented
to or anticipated by the claimant is not a reimbursable loss. Theft
or misappropriation of money or property by a lawyer where the
lawyer represented to the claimant that the money or property
would be used for an investment when no investment was made
may be considered a reimbursable loss. In those circumstances,
the funds were obtained by fraud or a ruse for the purpose of being
misappropriated by the lawyer. No investment existed, nor was it
the intent of the lawyer to invest the funds. As with all other
claims, all claim prerequisites must be met, including that the loss
was the result of a direct and current lawyer-client relationship.
Factors to consider in determining whether the loss was due to a
direct and current lawyer-client relationship include the number,
nature, and timing of prior transactions between the claimant and
the lawyer.
RULE 10-2.1 GENERALLY
Whenever used in these rules, the following words or terms have
the following meaning unless the use of the word or term clearly
indicates a different meaning:
(a) Unlicensed Practice of Law. The unlicensed practice of law
means the practice of law, as prohibited by statute, court rule, and
case law of the state of Florida.
(b) Paralegal or Legal Assistant. A paralegal or legal assistant
is a person qualified by education, training, or work experience,
who works under the supervision of a member of The Florida Bar,
an out-of-state lawyer engaged in the authorized practice of law in
Florida or a foreign lawyer engaged in the authorized practice of law
in Florida and who performs specifically delegated substantive legal
work for which the supervising lawyer is responsible. A nonlawyer
- 65 -
or a group of nonlawyers may not offer legal services directly to the
public by employing a lawyer to provide the lawyer supervision
required under this rule. It constitutes the unlicensed practice of
law for a person who does not meet the definition of paralegal or
legal assistant to use the title paralegal, legal assistant, or other
similar term in offering to provide or in providing services directly to
the public.
(c) Nonlawyer or Nonattorney. For purposes of this chapter, a
nonlawyer or nonattorney is an individual who is not a member of
The Florida Bar. This includes, but is not limited to, lawyers
admitted in other jurisdictions, law students, law graduates,
applicants to The Florida Bar, disbarred lawyers, and lawyers who
have resigned from The Florida Bar. A suspended lawyer, while a
member of The Florida Bar during the period of suspension as
provided elsewhere in these rules, does not have the privilege of
practicing law in Florida during the period of suspension. For
purposes of this chapter, it constitutes the unlicensed practice of
law for a lawyer admitted in a jurisdiction other than Florida to
advertise to provide legal services in Florida which the lawyer is not
authorized to provide.
(d) This Court or the Court. This court or the court means the
Supreme Court of Florida.
(e) Bar Counsel. Bar counsel is a member of The Florida Bar
representing The Florida Bar in any proceeding under these rules
and includes UPL counsel and UPL staff counsel.
(f) Respondent. A respondent is a nonlawyer who is accused of
engaging in the unlicensed practice of law or whose conduct is
under investigation.
(g) Referee. A referee is the judge or retired judge appointed to
conduct proceedings as provided under these rules.
(h) Standing Committee. The standing committee is the
committee constituted according to the directives contained in these
rules.
- 66 -
(i) Circuit Committee. A circuit committee is a local
unlicensed practice of law circuit committee.
(j) UPL Counsel. UPL counsel is the director of the unlicensed
practice of law department and an employee of The Florida Bar
employed to perform such duties, as may be assigned, under the
direction of the executive director.
(k) UPL. UPL is the unlicensed practice of law.
(l) The Board or Board of Governors. The board or board of
governors is the Board of Governors of The Florida Bar.
(m) Designated Reviewer. The designated reviewer is a
member of the board of governors responsible for review and other
specific duties as assigned by the board of governors with respect to
a particular circuit committee or matter. If a designated reviewer
recuses or is unavailable, any other board member may serve as
designated reviewer in that matter. The designated reviewer will be
selected by the board members from the circuit of that circuit
committee. If circuits have an unequal number of circuit
committees and board members, review responsibility will be
reassigned to equalize workloads. On reassignments, responsibility
for all pending cases from a particular committee passes to the new
designated reviewer. UPL counsel will be given written notice of
changes in the designated reviewing members for a particular
committee.
(n) Executive Committee. The executive committee is the
executive committee of the Board of Governors of The Florida Bar.
All acts and discretion required by the board under these rules may
be exercised by its executive committee between meetings of the
board as may be authorized by standing policies of the board of
governors.
(a) Bar Counsel. “Bar counsel” is a member of The Florida Bar
representing The Florida Bar in any proceeding under these rules
and includes UPL counsel and UPL staff counsel.
(b) The Board or Board of Governors. The “board” or “board of
governors” is the Board of Governors of The Florida Bar.
- 67 -
(c) Circuit Committee. A “circuit committee” is a local
unlicensed practice of law circuit committee.
(d) This Court or the Court. “This court” or “the court” means
the Supreme Court of Florida.
(e) Designated Reviewer. The “designated reviewer” is a
member of the board of governors responsible for review and other
specific duties as assigned by the board of governors with respect to
a particular circuit committee or matter. If a designated reviewer
recuses or is unavailable, any other board member may serve as
designated reviewer in that matter. The designated reviewer will be
selected by the board members from the circuit of that circuit
committee. If circuits have an unequal number of circuit
committees and board members, review responsibility will be
reassigned to equalize workloads. On reassignments, responsibility
for all pending cases from a particular committee passes to the new
designated reviewer. UPL counsel will be given written notice of
changes in the designated reviewing members for a particular
committee.
(f) Executive Committee. The “executive committee” is the
executive committee of the board of governors. All acts and
discretion required by the board under these rules may be exercised
by its executive committee between meetings of the board as may be
authorized by standing policies of the board of governors.
(g) Nonlawyer or Nonattorney. For purposes of this chapter, a
“nonlawyer” or “nonattorney” is an individual who is not a member
of The Florida Bar. This includes, but is not limited to, lawyers
admitted in other jurisdictions, law students, law graduates,
applicants to The Florida Bar, disbarred lawyers, and lawyers who
have resigned or been revoked from The Florida Bar. A suspended
lawyer, while a member of The Florida Bar during the period of
suspension as provided elsewhere in these rules, does not have the
privilege of practicing law in Florida during the period of
suspension. For purposes of this chapter, it constitutes the
unlicensed practice of law for a lawyer admitted in a jurisdiction
other than Florida to advertise to provide legal services in Florida
that the lawyer is not authorized to provide.
- 68 -
(h) Paralegal or Legal Assistant. A “paralegal” or “legal
assistant” is a person qualified by education, training, or work
experience, who works under the supervision of a member of The
Florida Bar, an out-of-state lawyer engaged in the authorized
practice of law in Florida or a foreign lawyer engaged in the
authorized practice of law in Florida and who performs specifically
delegated substantive legal work for which the supervising lawyer is
responsible. A nonlawyer or a group of nonlawyers may not offer
legal services directly to the public by employing a lawyer to provide
the lawyer supervision required under this rule. It constitutes the
unlicensed practice of law for a person who does not meet the
definition of paralegal or legal assistant to use the title paralegal,
legal assistant, or other similar term in offering to provide or in
providing services directly to the public.
(i) Respondent. A “respondent” is a nonlawyer who is accused
of engaging in the unlicensed practice of law or whose conduct is
under investigation.
(j) Referee. A “referee” is the judge or retired judge appointed
to conduct proceedings as provided under these rules.
(k) Standing Committee. The “standing committee” is the
committee constituted according to the directives contained in these
rules.
(l) Unlicensed Practice of Law. The “unlicensed practice of
law” means the practice of law, as prohibited by statute, court rule,
and case law of the state of Florida.
(m) UPL. “UPL” is the unlicensed practice of law.
(n) UPL Counsel. “UPL counsel” is the director of the
unlicensed practice of law department and an employee of The
Florida Bar employed to perform such duties, as may be assigned,
under the direction of the executive director.
RULE 10-2.2 FORM COMPLETION BY A NONLAWYER
(a) Supreme Court Approved Forms. It shallis not constitute
the unlicensed practice of law for a nonlawyer to engage in limited
- 69 -
oral communication to assist a self-represented person in the
completion of blanks on a Supreme Court Approved Form. In
assisting in the completion of the form, oral communication by
nonlawyers is restricted to those communications reasonably
necessary to elicit factual information to complete the blanks on the
form and inform the self-represented person how to file the form.
The nonlawyer may not give legal advice or give advice on remedies
or courses of action. Legal forms approved by the Supreme Court of
Florida which may be completed as set forth herein shall only
include andin this rule are limited to the following forms, and any
other legal form, whether promulgated or approved by the Supreme
Court of Florida, is not a Supreme Court Approved Form for the
purposes of this rule:
(1) forms whichthat have been approved by the Supreme
Court of Florida specifically pursuant tounder the authority of
rule 10-2.1(a) [(formerly rule 10-1.1(b)]) of the Rules Regulating
The Florida Bar;
(2)-(3) [No Change]
(b) Forms WhichThat Have Not Been Approved by the
Supreme Court of Florida.
(1) It shallis not constitute the unlicensed practice of law for
a nonlawyer to engage in a secretarial service, typing forms for
self-represented persons by copying information given in writing
by the self-represented person into the blanks on the form. The
nonlawyer must transcribe the information exactly as provided
in writing by the self-represented person without addition,
deletion, correction, or editorial comment. The nonlawyer may
not engage in oral communication with the self-represented
person to discuss the form or assist the self-represented person
in completing the form.
(2) It shallis constitute the unlicensed practice of law for a
nonlawyer to give legal advice, to give advice on remedies or
courses of action, or to draft a legal document for a particular
self-represented person. It is also constitutes the unlicensed
- 70 -
practice of law for a nonlawyer to offer to provide legal services
directly to the public.
(c) As to All Legal Forms.
(1) Except for forms filed by the petitioner in an action for an
injunction for protection against domestic or repeat violence, the
following language shallmust appear on any form completed by a
nonlawyer and any individuals assisting in the completion of the
form shallmust provide their names, business names, addresses,
and telephone numbers on the form:
This form was completed with the assistance of:
…..(Name of Individual)…..
…..(Name of Business)…..
…..(Address)…..
…..(Telephone Number)…..
(2) Before a nonlawyer assists a person in the completion of
a form, the nonlawyer shallmust provide the person with a copy
of a disclosure which contains the following provisions:
…..(Name)….. told me that he/she is a nonlawyer and may
not give legal advice, cannot tell me what my rights or remedies
are, cannot tell me how to testify in court, and cannot represent
me in court.
Rule 10-2.1(bh) of the Rules Regulating The Florida Bar
defines a paralegal as a person who works under the supervision
of a member of The Florida Bar, an out-of-state lawyer engaged
in the authorized practice of law in Florida, or a foreign lawyer
engaged in the authorized practice of law in Florida and who
performs specifically delegated substantive legal work for which
a member of The Florida Barthe supervising lawyer is
responsible. Only persons who meet the definition may call
themselves paralegals. …..(Name)….. informed me that he/she
is not a paralegal as defined by the rule and cannot call
himself/herself a paralegal.
- 71 -
…..(Name)….. told me that he/she may only type the factual
information provided by me in writing into the blanks on the
form. Except for typing, …..(Name)….. may not tell me what to
put in the form and may not complete the form for me. However,
if using a form approved by the Supreme Court of Florida,
…..(Name)….. may ask me factual questions to fill in the blanks
on the form and may also tell me how to file the form.
………. I can read English
………. I cannot read English but this notice was read to me
by …..(Name)….. in …..(Language)….. which I understand.
(3) A copy of the disclosure, signed by both the nonlawyer
and the assisted person, shallmust be given to the assisted
person to retain and the nonlawyer shallmust keep a copy in the
assisted person’s file. The nonlawyer shallmust also retain
copies for at least 6 years of all forms given to the assisted
person being assisted. The disclosure does not act as or
constitute a waiver, disclaimer, or limitation of liability.
RULE 10-6.3 RECOMMENDATIONS AND DISPOSITION OF
COMPLAINTS
(a) Circuit Committee Action. On concluding its
investigation, the circuit committee will report to bar counsel
regarding the disposition of those cases closed, those cases where a
letter of advice has been given, those cases where a cease and
desist affidavit has been accepted, those cases where a cease and
desist affidavit with monetary penalty or restitution has been
recommended, and those cases where litigation is recommended. A
majority of those present is required for all circuit committee
recommendations; however, the vote may be taken by mail,
electronic means, or telephone rather than at a formal meeting. All
recommendations for a cease and desist affidavit with monetary
penalty or restitution must be reviewed by the standing committee
for final approval. All recommendations for litigation under these
rules must be reviewed by the standing committee and a designated
reviewer for final approval prior to initiating litigation.
(b) [No Change]
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(c) Review by Designated Reviewer. All recommendations by
the standing committee that litigation be initiated must be reviewed
by a designated reviewer. If the designated reviewer does not act on
the recommendation within 21 days following the mailing date of
the notice of standing committee action, the standing committee
action will become final. If the designated reviewer disagrees with
all or any part of the recommendation for litigation, the designated
reviewer will make a report and recommendation to the board of
governors, and the board will make a final determination regarding
the litigation.
RULE 10-7.2 PROCEEDINGS FOR INDIRECT CRIMINAL
CONTEMPT
(a) Petitions for Indirect Criminal Contempt. Nothing
withinin these rules prohibits or limits the right of the court to
issue a permanent injunction in lieu of or in addition to any
punishment imposed for an indirect criminal contempt.
(1) Proceedings. Upon receiving a sworn petition of the
president, executive director of The Florida Bar, or the chair of
the standing committee alleging facts indicating that a person,
firm, or corporation is or may be unlawfully practicing law or
has failed to pay restitution as provided elsewhere in this
chapter, and containing a prayer for a contempt citation, the
court may issue an order directed to the respondent,The Florida
Bar’s president, executive director, or UPL standing committee
chair may file a sworn petition seeking contempt for a person,
firm, or corporation for unlawfully practicing law or failing to pay
restitution under this chapter. The sworn petition must contain
a prayer for a contempt citation. On receipt of the sworn
petition, the court may issue an order to the respondent stating
the essential allegations charged and requiring the respondent to
appear before a referee appointed by the court to show cause
why the respondent should not be held in contempt of thisthe
court for the unlicensed practice of law or for the failure to pay
restitution as ordered. The referee must be a circuit judge of the
stateState of Florida. The order must specify the time and place
of the hearing, and a. A reasonable time must be allowed for
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preparation of the defense after service of the order on the
respondent.
(2) Respondent’s Motions and Answer. The respondent,
personally or by counsel, may move to dismiss the order to show
cause, move for a statement of particulars, or answer the order
by way of explanation or defense. All motions and the answer
must be in writing. A respondent’s omissionfailure to file
motions or answer will not be deemedis not an admission of guilt
of the contempt charged.
(b) Indigency of Respondent. Any respondent who is
determined to be indigent by the referee is entitled to the
appointment of counsel.
(1) [No Change]
(2) Determination. After reviewing the affidavit and
questioning the respondent, the referee will determine whether
the respondent is indigent or the respondent is not indigent.
In making this determination, the referee must consider the
applicable statutory criteria used by the clerk of court when
determining indigent status and the applicable statutory factors
considered by a court when reviewing that determination.
(c) Proceedings Before the Referee. Proceedings before the
referee must be in accordance with the following:
(1) Venue. Venue for the hearing before the referee must be
in the county where the respondent resides or where the alleged
offense was committed, whichever is designated by the court.
(2) Order of Arrest. The court or referee may issue an order
of arrest of the respondent if the court or referee has reason to
believe the respondent will not appear in response to the order to
show cause. The respondent will be admitted to bail in the
manner provided by law in criminal cases.
(3) Hearings. The respondent will be arraigned and enter a
plea at the time of the hearing before the referee, or prior on
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request. A subsequent hearing to determine the guilt or
innocence of the respondent will follow a plea of not guilty. The
date and time of the subsequent hearing will be set at the
arraignment. The respondent is entitled to be represented by
counsel, have compulsory process for the attendance of
witnesses, and confront witnesses against the respondent. The
respondent may testify in the respondent’s own defense. No
respondent may be compelled to testify. A presumption of
innocence will be accorded the respondent. The Florida Bar
acting as prosecuting authority must prove guilt of the
respondent beyond a reasonable doubt.
(4) Subpoenas. Subpoenas for the attendance of witnesses
and the production of documentary evidence will be issued in
the name of the court by the referee upon request of a party.
Failure or refusal to comply with any subpoena is a contempt of
court and may be punished by the court or by any circuit court
where the action is pending or where the contemnor may be
found, as if the refusal were a contempt of that court.
(5) Referee. The referee will hear all issues of law and fact
and all evidence and testimony presented will be transcribed.
(6) Judgment. At the conclusion of the hearing, the referee
will sign and enter of record a judgment of guilty or not guilty.
There should be included in aA judgment of guilty should
include a recital of the facts constituting the contempt of which
the respondent has been found and adjudicated guilty, and the.
The costs of prosecution, including investigative costs and
restitution, if any, will be included and entered in the judgment
rendered against the respondent. The amount of restitution
must be specifically set forth in the judgment and must not
exceed the amount paid to respondent by complainant(s). The
judgment must also state the name of theeach complainant(s) to
whom restitution is to be made, the amount of restitution to be
made, and the date by which it must be completed. The referee
has discretion over the timing of payments, over how those
payments are to be distributed to multiple complainant(s), and
whether restitution will bear interest at the legal rate provided
for judgments in this state. In determining the amount of
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restitution to be paid to complainant(s), the referee will consider
testimony or any documentary evidence that shows the amount
paid to respondent by complainant(s), including cancelled
checks, credit card receipts, receipts from respondent, and any
other documentation evidencing the amount of payment.
Nothing in this section precludes an individual from seeking
redress through civil proceedings to recover fees or other
damages.
(7) Mitigation and Sentence. Prior toBefore the
pronouncement of a recommended sentence on a judgment of
guilty, the referee will inform the respondent of the accusation
and judgment and afford the opportunity to present evidence of
mitigating circumstances. The recommended sentence will be
pronounced in open court and in the presence of the
respondent.
(d) Record.
(1) Contents. The record includes all items properly filed in
the cause including pleadings,; recorded testimony, if
transcribed,; exhibits in evidence,; and the report of the referee.
(2) [No Change]
(3) Supplementing or Removing Items from the Record. The
respondent and The Florida Bar may seek to supplement the
record or have items removed from the record by filing a motion
with the referee for that purpose, providedonly if the motion is
filed within 15 days of the service of the index. Denial of a
motion to supplement the record or to remove an item from the
record may be reviewed in the same manner as provided for in
the rule on appellate review under these rules.
(e) Review by the Supreme Court of Florida. The referee
must forward the judgment and recommended sentence, on a
finding of “guilty,” together with the entire record of proceedings
must be forwarded to the Supreme Court of Florida for approval,
modification, or rejection based upon the law. The petitioner or the
respondent may file objections, together with a supporting brief or
memorandum of law, to the referee’s judgment and recommended
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sentence within 30 days of the date of filing with the court of the
referee’s judgment, recommended sentence, and record of
proceedings, or in. the case where a party seeksA party may seek
review of a referee’s denial to supplement or remove an item from
the record, within 30 days after the court issues its ruling on that
matter. Denial of a motion to supplement the record or to remove
an item from the record may be reviewed in the same manner as
provided for in the rule on appellate review under these rules.
A responsive brief or memorandum of law may be filed within 20
days after service of the initial brief or memorandum of law. A reply
brief or memorandum of law may be filed within 20 days after
service of the responsive brief or memorandum of law.
(f)-(g) [No Change]
RULE 14-2.1 GENERALLY
(a) Appointment of Members; Quorum. The board of
governors shallwill appoint a standing committee on grievance
mediation and fee arbitration comprised of:
(1) 6 lawyers who are certifiedapproved as mediators under
this chapter;
(2) 3 nonlawyers who are certifiedapproved as mediators
under this chapter;
(3) 6 lawyers who are certifiedapproved as arbitrators under
this chapter; and
(4) 3 nonlawyers who are certifiedapproved as arbitrators
under this chapter.
The board of governors will appoint a chair and vice-chair of the
committee from the members listed above. A majority of committee
members of the committee constitutes a quorum. The lawyer
members of the committee shallmust be members of The Florida
Bar in good standing.
(b) Terms. All members shall beare appointed for 3-year
staggered terms, each term commencing on July 1 of the year of
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appointment and ending on June 30 of the third year thereafter
consistent with the bar’s fiscal year. Terms shall be staggered so
that with one-third of the committee members of the committee
shall be appointed each year. No committee member may serve for
more than 2 consecutive full terms.
(c) Duties. The standing committee shall
administeradministers the program, certifyapproves mediators and
arbitrators for the program, promulgatepromulgates necessary
standards, forms, and documents, and makemakes
recommendations, as necessary, to the board of governors for
changes in the program.
SUBCHAPTER 14-3 CERTIFICATIONAPPROVAL OF PROGRAM
MEDIATORS AND ARBITRATORS
RULE 14-3.1 APPLICATION REQUIRED
(a) Applications. Persons wishing to become program
mediators or arbitrators shallmust apply to the committee for its
review and certificationapproval. The committee shall
promulgatepromulgates standards and forms for certification
hereunderapproval. Membership in The Florida Bar shallis not be
required for certificationapproval.
(b) CLE Credit for Service. Members of The Florida Bar who
are program mediators and arbitrators shall be entitled tomay
receive a maximum of 5 hours of CLE credit in each reporting
period in the area of ethics for service in the program as provided in
the policies adopted under this chapter.
RULE 20-5.1 GENERALLY
The following individuals are ineligible for registration as a
Florida Registered Paralegal or for renewal of a registration that was
previously granted:
(a)(a) a person who is currently suspended or disbarred or who
has resigned or been revoked in lieu of discipline from the practice
of law in any state or jurisdiction;
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(b)(b) a person who has been convicted of a felony in any state
or jurisdiction and whose civil rights have not been restored;
(c)(c) a person who has been found to have engaged in the
unlicensed (unauthorized) practice of law in any state or
jurisdiction within 7 years of the date of application date;
(d)(d) a person whose registration or license to practice has been
terminated or revoked for disciplinary reasons by a professional
organization, court, disciplinary board, or agency in any
jurisdiction;
(e)(e) a person who is no longer primarily performing paralegal
work as defined elsewhere in these rules;
(f)(f) a person who fails to comply with prescribed continuing
education requirements as set forth elsewhere in this chapter; or
(g)(g) a person who is providing services directly to the public as
permitted by case law and subchapter 10-2 of these rules.
RULE 21-3.1 CONTINUING LEGAL EDUCATION
(a)-(b) [No Change]
(c) Minimum Ongoing Requirement. A lawyer certified to
practice law in Florida as a military spouse must complete 1011
hours of continuing legal education during each year the
authorization is renewed, including 1 hour of technology each year
and 2 hours of legal ethics, professionalism, bias elimination,
substance abuse, or mental illness awareness each year.
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