In Re: Amendments to the Florida Rules of Judicial Administration, Florida Rule of Criminal Procedure 3.010, and Florida Rule of Appellate Procedure 9.440 ( 2017 )


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  •           Supreme Court of Florida
    ____________
    No. SC16-1062
    ____________
    IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL
    ADMINISTRATION, FLORIDA RULE OF CRIMINAL PROCEDURE
    3.010, AND FLORIDA RULE OF APPELLATE PROCEDURE 9.440.
    [September 7, 2017]
    PER CURIAM.
    The Court has for consideration proposed amendments to the Florida Rules
    of Judicial Administration, the Florida Rules of Criminal Procedure, the Florida
    Rules of Appellate Procedure, and the Florida Rules of Juvenile Procedure.1 For
    the reasons explained below, we decline to adopt the proposed amendments,
    without prejudice to the filing of more individualized and refined proposals.
    BACKGROUND
    The Florida Bar’s Rules of Judicial Administration Committee, Criminal
    Procedure Rules Committee, and Appellate Court Rules Committee (Rules
    Committees) have filed a joint out-of-cycle report proposing amendments to
    1. We have jurisdiction. See art. V, § 2(a), Fla. Const.
    Florida Rules of Judicial Administration 2.120 (Definitions), 2.505 (Attorneys),
    2.515 (Signature and Certificates of Attorneys and Parties), and 2.516 (Service of
    Pleadings and Documents); Florida Rule of Criminal Procedure 3.010 (Scope); and
    Florida Rule of Appellate Procedure 9.440 (Attorneys). See Fla. R. Jud. Admin.
    2.140(a)(7) & (e). The Florida Bar’s Rules of Judicial Administration Committee
    and the Bar’s Vision 2016 Commission developed the proposed amendments to the
    Rules of Judicial Administration that modify how counsel appear in a case. The
    amendments recognize three types of representation by creating the designations of
    lead counsel (the attorney principally responsible for the representation of a party);
    additional counsel (coverage and attorneys in a law firm or governmental agency);
    and limited representation counsel (an attorney for a party or nonparty who
    provides limited representation). Each type of representation has its own rules for
    appearance and termination of appearance in a case. A definition of an attorney of
    record also is proposed, which, according to the joint report, will assist the Florida
    Courts Technology Commission with the access to court records security matrix.
    The amendments to the criminal and appellate rules are proposed by the Criminal
    Procedure and Appellate Court Rules Committees to address any conflicts between
    the proposed amendments to the Rules of Judicial Administration and those bodies
    of rules and to provide needed exceptions to the general-application judicial
    administration rules.
    -2-
    The Rules Committees published their proposals for comment before filing
    them with the Court and made revisions to the proposals in response to the
    comments they received. The Board of Governors of The Florida Bar approved all
    the proposed amendments. After the joint report was filed, the Court published the
    proposals for comment. The Juvenile Court Rules Committee, the Florida
    Guardian Ad Litem Program, and the Orange County Clerk of Courts filed
    comments. The Rules Committees filed a joint response to the comments that
    offers revisions to the amendments to rule 2.505 (Attorneys) in response to
    suggestions by the Juvenile Court Rules Committee and concerns raised by the
    Guardian Ad Litem Program about the use of the proposed counsel designations in
    delinquency and dependency cases. After being granted leave to do so, the
    Juvenile Court Rules Committee filed a second comment, in which it proposes an
    amendment to Rule of Juvenile Procedure 8.000 (Scope and Purpose), which the
    Board of Governors approved, but which has not been published for comment.
    The Rules Committees filed a joint response to the second comment stating that the
    committees have no objection to the proposed amendment to rule 8.000.
    DISCUSSION
    After considering the proposed amendments, the comments filed, and the
    Rules Committees’ response and hearing oral argument, we decline to adopt any of
    the proposed amendments, without prejudice to the filing of more individualized
    -3-
    and refined proposals that accomplish the goals stated in the joint report. As is
    evident from the comments filed, views expressed at oral argument, and the
    exceptions to the proposed counsel classifications and attendant procedures that
    had to be included in the various bodies of rules, how counsel appear in a case and
    different attorneys’ level of involvement in a case vary among practice areas and
    the different courts throughout this state. While the attempt to develop one body of
    comprehensive rules that classifies different types of representation and governs
    how attorneys appear and terminate an appearance in a case is laudable, we believe
    more refined rules that address these matters for each of the various practice areas
    should be considered; and there should be more active involvement of and
    communication between all the affected rules committees before new proposals are
    finalized.
    We also are concerned that the attempt to merge the work of the Vision 2016
    Commission concerning limited representation counsel for pro se litigants with the
    work of the Rules of Judicial Administration Committee in developing
    classifications and procedures for the lead and additional counsel designations and
    a definition of attorney of record resulted in confusing procedures when there is
    both a lead and a limited representation counsel in a case, a situation contemplated
    by the proposed Committee Note to rule 2.505. See, e.g., proposed new Rules Jud.
    Admin. 2.505(g)(3)(C) (providing that, during a limited representation, all filed
    -4-
    documents be served on the limited representation counsel and the party, with no
    mention of serving lead counsel should there be one); 2.516(b)(1)(F) (same); and
    2.515(a) (providing an exception to the requirement of having an attorney’s
    signature and certificate for documents filed outside the scope of limited
    representation counsel’s representation, without taking into account a case with
    both lead and limited representation counsel).
    Finally, we also believe that the concerns identified in the joint report about
    attorneys appearing in a case being recognized as attorney of record for purposes
    of the clerk’s office case maintenance system and remote access to case records as
    allowed under the Standards for Access to Electronic Court Records and Access
    Security Matrix can be addressed in a more focused manner with input from the
    Florida Courts Technology Commission and Florida Association of Court Clerks
    and Comptrollers. In the meantime, attorneys who wish to have remote access to
    court records in a given case and to ensure proper e-mail service should file a
    notice of appearance in any case in which they provide representation.
    Accordingly, we decline to adopt the proposed amendments, without
    prejudice to future proposals in accordance with this opinion.
    It is so ordered.
    LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, and
    POLSTON, JJ., concur.
    LAWSON, J., concurs specially with an opinion.
    -5-
    NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
    IF FILED, DETERMINED.
    LAWSON, J., specially concurring.
    I write separately to note this Court’s appreciation for the many hours of
    hard work volunteered by members of these committees, as reflected in the rule
    proposals, and to suggest a refinement that would address my primary concern.
    That concern, also alluded to in the majority opinion, is potential confusion
    stemming from use of the “limited representation counsel” designation, with its
    special rules, in a case where the litigant is represented by other counsel of record.
    The concerns raised by appellate practitioners, which prompted this change to the
    original Vision 2016 Commission’s proposal, could instead be addressed by adding
    another designation for “additional special counsel.” That designation would apply
    only when there is already counsel of record and could have its own separate rules
    that allow the appearance with consent of a sponsoring lead or additional counsel
    (without the need for a signature by the client). Additional special counsel could
    then be allowed to withdraw, without leave of court, by filing his or her own notice
    of withdrawal, or upon notice filed by the sponsoring lead or additional counsel.
    The additional special counsel designation could also be used to address the
    practice of “coverage counsel” in criminal cases. The committees may have
    considered something like this and rejected it for reasons not readily apparent to
    me. But, this approach would appear to address the valid points made by appellate
    -6-
    specialists retained to provide litigation assistance, and by criminal practitioners,
    while still implementing the good work of the Vision 2016 Commission aimed at
    assisting unrepresented litigants.
    Original Proceeding – Florida Rules of Judicial Administration, Florida Rules of
    Criminal Procedure and Florida Rules of Appellate Procedure
    Judson Lee Cohen, Chair, Rules of Judicial Administration Committee, Weinstein
    & Cohen, P.A., Miami Lakes, Florida, Judge Steven Scott Stephens, Past Chair,
    Rules of Judicial Administration Committee, Thirteenth Judicial Circuit Court,
    Tampa, Florida, and Amy Singer Borman, Past Chair, Rules of Judicial
    Administration Committee, Fifteenth Judicial Circuit Court, West Palm Beach,
    Florida; Landis Vernon Curry III, Chair, Appellate Court Rules Committee, Hill,
    Ward & Henderson, Tampa, Florida, Kristin A. Norse, Past Chair, Appellate Court
    Rules Committee, Kynes, Markman & Felman, P.A., Tampa, Florida, and Judge T.
    Kent Wetherell, II, Past Chair, Appellate Court Rules Committee, First District
    Court of Appeal, Tallahassee, Florida; Judge Jon Berkley Morgan, Chair, Criminal
    Procedure Rules Committee, Kissimmee, Florida, H. Scott Fingerhut, Past Chair,
    Criminal Procedure Rules Committee, H. Scott Fingerhut, P.A., Miami, Florida,
    and Meredith Charbula, Past Chair, Criminal Procedure Rules Committee, Fourth
    Judicial Circuit State Attorney’s Office, Jacksonville, Florida; and John F.
    Harkness, Jr., Executive Director, Heather Savage Telfer, and Krys Godwin, Staff
    Liaisons, The Florida Bar, Tallahassee, Florida,
    for Petitioner
    Alan Abramowitz, Executive Director, Dennis W. Moore, General Counsel,
    Camille A. Frazer, Regional Counsel, and Thomasina Moore, Statewide Guardian
    ad Litem Office, Tallahassee, Florida; David Margolis, General Counsel, Nicholas
    A. Shannin, Former General Counsel, and Tiffany Moore Russell, Clerk of Courts
    in and for Orange County, Orlando, Florida; Kara Ann Felton, Chair, Juvenile
    Court Rules Committee, Tallahassee, Florida, and Ward Lee Metzger, Past Chair,
    Juvenile Court Rules Committee, Jacksonville, Florida; and Mikalla Andies Davis,
    Staff Liaison, The Florida Bar, Tallahassee, Florida,
    Responding with comments
    -7-
    

Document Info

Docket Number: SC16-1062

Judges: Labarga, Pariente, Lewis, Quince, Canady, Polston, Lawson

Filed Date: 9/7/2017

Precedential Status: Precedential

Modified Date: 10/19/2024