In Re: Amendments to The Florida Rules of Judicial Administration , 39 Fla. L. Weekly Supp. 651 ( 2014 )

Supreme Court of Florida
____________
No. SC14-219
____________
IN RE: AMENDMENTS TO THE FLORIDA RULES OF JUDICIAL
ADMINISTRATION.
[October 30, 2014]
PER CURIAM.
We have for consideration the regular-cycle report of proposed rule
amendments filed by The Florida Bar’s Rules of Judicial Administration
Committee (Rules Committee). See Fla. R. Jud. Admin. 2.140(b)(4). We have
jurisdiction1 and adopt the amendments as proposed.
BACKGROUND
The Rules Committee proposes amendments to Florida Rules of Judicial
Administration 2.430 (Retention of Court Records), and 2.510 (Foreign Attorneys).
Consistent with rule 2.140(b)(2), the Rules Committee published the proposals for
comment before filing them with the Court. The Committee did not receive any
1. See art. V, § 2(a), Fla. Const.
comments. The Board of Governors of The Florida Bar approved the proposals.
The Court also published the proposals for comment. One comment was filed with
the Court by the Florida Association of Court Clerks, Inc. (Clerks) opposing the
amendments to rule 2.430. The Rules Committee filed a response urging the Court
to adopt those amendments as proposed.
In response to a request by the Court, the Judicial Branch Records
Management Committee filed a comment making recommendations on the
proposed amendments to rule 2.430, and addressing the issues raised in the Clerks’
comment. See In re Amends. to the Fla. Rules of Jud. Admin., No. SC14-219 (Fla.
order filed June 18, 2014) (requesting comment); see also In re Amends. to Rule of
Jud. Admin. 2.430, 973 So. 2d 437, 440 n.6 (Fla. 2008) (stating that the Judicial
Branch Records Management Committee has responsibility to comment on
proposed amendments to the retention rules); In re Judicial Branch Records Mgmt.
& Retention Program, Fla. Admin. Order No. AOSC08-5, 1-2 (Dec. 15, 2008)
(charging the Judicial Branch Records Management Committee with responsibility
to comment on proposed amendments to the retention rules). The Clerks filed a
response to the comment, after being granted leave to do so.
AMENDMENTS
After considering the Rules Committee’s proposals, the comments filed, and
the responses to the comments, we amend the rules as proposed.
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The more significant amendments to rule 2.430 (Retention of Court
Records) extend the retention periods for misdemeanor and criminal traffic
violation records, and clarify that criminal traffic violations records are considered
either misdemeanor records or felony records. Currently, as relevant here, rule
2.430(c)(1)(C) allows the clerks to destroy misdemeanor and criminal traffic
violation records that are not permanently recorded five years after the judgment
becomes final. The reference to “criminal traffic violations” is removed from the
retention schedule and those records are now subsumed under the schedules for
misdemeanor and felony records. The amendments to subdivisions (c)(1)(C),
(c)(1)(E), and (c)(1)(F) require the same 10- and 75-year retention periods for
misdemeanor records as are currently required for felony records, under
subdivisions (c)(1)(E) and (c)(1)(F). According to the Rules Committee’s report,
the longer retention periods were suggested by the Florida Prosecuting Attorneys
Association. The prosecutors were concerned about the destruction of
misdemeanor records by clerks after five years and explained the need to maintain
those records in order to prove recidivism if the crimes in question occur more than
five years apart. In addition, the prosecutors urged that misdemeanor records are
needed for postconviction motions, impeachment with prior convictions, and
preparation of sentencing guideline scoresheets.
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The Court has given due consideration to the Clerks’ concerns about the cost
of maintaining misdemeanor and criminal traffic records for the extended retention
periods. While we appreciate the Clerks’ concerns, all agree that the cost to
maintain paper records will continue to diminish as the judicial system moves to a
fully electronic filing and document management system. And the Court agrees
with the Rules Committee and the Judicial Branch Records Management
Committee that any remaining fiscal concerns attendant to electronically retaining
the records for the extended periods cannot outweigh the retention value of those
records in proving recidivism and protecting defendants against false allegations.
The more significant amendments to rule 2.510 (Foreign Attorneys) include
the following. The amendment to subdivision (a) (Eligibility) allows the court to
waive the pro hac vice filing fee in pro bono cases in which the foreign attorney’s
client may not be technically “indigent,” where good cause is shown. According to
the committee report, the trial judge would have discretion to determine what
constitutes a “pro bono” client and what constitutes “good cause” for purposes of
the rule. Subdivision (b)(1) is amended to provide that a certificate of good
standing from the foreign attorney’s home jurisdiction is not required. The
amendment to subdivision (b)(3) clarifies the requirements regarding disclosure of
all disciplinary, suspension, disbarment, or contempt proceedings that have been
initiated against the attorney in the preceding five years. This subdivision
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corresponds to amendments to item 5 of the verified motion for admission to
appear pro hac vice form, which now requires the movant to certify as to any
disciplinary, suspension, disbarment, or contempt proceedings initiated against the
movant. Paragraphs 6, 7, and 8 of the form are deleted because their substance is
now part of paragraph 5 and the form is renumbered.
CONCLUSION
Accordingly, we amend the Florida Rules of Judicial Administration as
reflected in the appendix to this opinion. New language is indicated by
underscoring; deletions are indicated by struck-through type. The amendments
shall become effective January 1, 2015, at 12:01 a.m.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceedings – Florida Rules of Judicial Administration
Murray Bruce Silverstein, Chair, Rules of Judicial Administration Committee,
Greenberg Traurig, P.A., Tampa, Florida, Judge Jon Berkley Morgan, Past Chair,
Rules of Judicial Administration Committee, Kissimmee, Florida, John F.
Harkness, Jr., Executive Director, and Krys Godwin, Bar Staff Liaison, The
Florida Bar, Tallahassee, Florida,
for Petitioner
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Fredric W. Baggett and Mary Hope Keating of Greenberg Traurig, P.A.,
Tallahassee, Florida, on behalf of Florida Association of Court Clerks, Inc., Judge
Cheryl Kendrick Thomas, Chair, Judicial Branch Records Management
Committee, and Joseph E. Smith, President, Florida Court Clerks & Comptrollers,
Fort Pierce, Florida,
Responding with comments
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APPENDIX
RULE 2.430. RETENTION OF COURT RECORDS
(a) – (b) [No Change]
(c) Records Not Permanently Recorded. No court records under this
subdivision shall be destroyed or disposed of until the final order, final docket
entry, or final judgment is permanently recorded for, or recorded in, the public
records. The time periods shall not apply to any action in which the court orders
the court records to be kept until the court orders otherwise. When an order is
entered to that effect, the progress docket and the court file shall be marked by the
clerk with a legend showing that the court records are not to be destroyed or
disposed of without a further order of court. Any person may apply for an order
suspending or prohibiting destruction or disposition of court records in any
proceeding. Court records, except exhibits, that are not permanently recorded may
be destroyed or disposed of by the clerk after a judgment has become final in
accordance with the following schedule:
(1) For trial courts
(A) 60 days — Parking tickets and noncriminal traffic
infractions after required audits have been completed.
(B) 2 years — Proceedings under the Small Claims Rules,
Medical Mediation Proceedings.
(C) 5 years — Misdemeanor actions, criminal traffic
violations, Noncriminal ordinance violations, civil litigation proceedings in county
court other than those under the Small Claims Rules, and civil proceedings in
circuit court except marriage dissolutions and adoptions.
(D) 10 years — Probate, guardianship, and mental health
proceedings.
(E) 10 years — Felony and misdemeanor cases in which no
information or indictment was filed or in which all charges were dismissed, or in
which the state announced a nolle prosequi, or in which the defendant was
adjudicated not guilty.
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(F) 75 years — Juvenile proceedings containing an order
permanently depriving a parent of custody of a child, and adoptions, and all felony
and misdemeanor cases not previously destroyed.
(G) Juvenile proceedings not otherwise provided for in this
subdivision shall be kept for 5 years after the last entry or until the child reaches
the age of majority, whichever is later.
(H) Marriage dissolutions — 10 years from the last record
activity. The court may authorize destruction of court records not involving
alimony, support, or custody of children 5 years from the last record activity.
(2) – (3) [No Change]
(d) – (k) [No Change]
RULE 2.510. FOREIGN ATTORNEYS
(a) Eligibility. Upon filing a verified motion with the court, an attorney
who is an active member in good standing of the bar of another state and currently
eligible to practice law in a state other than Florida may be permitted to appear in
particular cases in a Florida court upon such conditions as the court may deem
appropriate, provided that a member of The Florida Bar in good standing is
associated as an attorney of record. The foreign attorney must make application in
each court in which a case is filed even if a lower tribunal granted a motion to
appear in the same case. In determining whether to permit a foreign attorney to
appear pursuant to this rule, the court may consider, among other things,
information provided under subdivision (b)(3) concerning discipline in other
jurisdictions. No attorney is authorized to appear pursuant to this rule if the
attorney (1) is a Florida resident, unless the attorney has an application pending for
admission to The Florida Bar and has not previously been denied admission to The
Florida Bar; (2) is a member of The Florida Bar but is ineligible to practice law;
(3) has previously been disciplined or held in contempt by reason of misconduct
committed while engaged in representation permitted pursuant to this rule
provided, however, the contempt is final and has not been reversed or abated; (4)
has failed to provide notice to The Florida Bar or pay the filing fee as required in
subdivision (b)(7); or (5) is engaged in a “general practice” before Florida courts.
For purposes of this rule, more than 3 appearances within a 365-day period in
separate cases shall be presumed to be a “general practice.” Appearances at
different levels of the court system in the same case shall be deemed 1 appearance
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for the purposes of determining whether a foreign attorney has made more than 3
appearances within a 365-day period. In cases involving indigent or pro bono
clients, the court may waive the filing fee for good cause shown.
(b) Contents of Verified Motion. A form verified motion accompanies
this rule and shall be utilized by the foreign attorney. The verified motion required
by subdivision (a) shall include:
(1) a statement identifying all jurisdictions in which the attorney is
an active member in good standing and currently eligible to practice law, including
all assigned bar numbers and attorney numbers;, for which a certificate of good
standing is not required;
(2) [No Change]
(3) a statement identifying all jurisdictions in which disciplinary,
suspension, disbarment, or contempt proceedings have been initiated against the
attorney has been disciplined in any manner in the preceding 5 years and the
sanction imposed, or in which the attorney has pending any disciplinary
proceeding, including the date of the disciplinary action and on which the
proceeding was initiated, the nature of the alleged violation, and the result of the
proceeding including the sanction, if any, imposed;
(4) – (6) [No Change]
(7) a certificate indicating service of the verified motion upon all
counsel of record in the matter in which leave to appear pro hac vice is sought and
upon The Florida Bar at its Tallahassee office accompanied by a nonrefundable
$250.00 filing fee made payable to The Florida Bar or notice ofthat the movant has
requested a judicial waiver of thesaid fee; and
(8) [No Change]
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IN THE _________ COURT OF THE __________ JUDICIAL CIRCUIT,
IN AND FOR _______________, COUNTY, FLORIDA
______________________
Plaintiff
vs. Case No.________________
______________________ Division ________________
Defendant
VERIFIED MOTION FOR ADMISSION TO APPEAR PRO HAC VICE
PURSUANT TO FLORIDA RULE OF JUDICIAL ADMINISTRATION 2.510
Comes now________________________________________________________,
Movant herein, and respectfully represents the following:
1. [ ] Movant resides in _______________________, _______________
(City) (State)
Movant is not a resident of the State of Florida.
[ ] Movant is a resident of the State of Florida and has an application
pending for admission to The Florida Bar and has not previously been denied
admission to The Florida Bar.
2. Movant is an attorney and a member of the law firm of (or practices
law under the name of) ________________________________, with offices at
, ,
(Street Address) (City)
, , ,
(County) (State) (Zip Code) (Telephone)
3. Movant has been retained personally or as a member of the above
named law firm on by
(Date Representation Commenced) (Name of Party or Parties)
to provide legal representation in connection with the above-styled matter now
pending before the above-named court of the State of Florida.
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4. Movant is an active member in good standing and currently eligible to
practice law in the following jurisdiction(s): Include attorney or bar number(s).
(Attach an additional sheet if necessary.)
JURISDICTION ATTORNEY/BAR NUMBER
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
5. There arehave been no disciplinary, suspension, disbarment, or
contempt proceedings pendinginitiated against Movant in the preceding 5 years,
except as provided below (give jurisdiction of disciplinary action, date of
disciplinary actionproceeding, date upon which proceeding was initiated, nature of
thealleged violation, statement of whether the proceeding has concluded or is still
pending, and the sanction, if any, imposed): (Attach an additional sheet if
necessary.)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
6. Within the past five (5) years, Movant has not been subject to any
disciplinary proceedings, except as provided below (give jurisdiction of
disciplinary action, date of disciplinary action, nature of the violation and the
sanction, if any, imposed): (Attach an additional sheet if necessary.)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
7. Movant has never been subject to any suspension proceedings, except
as provided below (give jurisdiction of disciplinary action, date of disciplinary
action, nature of the violation and the sanction, if any, imposed): (Attach an
additional sheet if necessary.)
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__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
8. Movant has never been subject to any disbarment proceedings, except
as provided below (give jurisdiction of disciplinary action, date of disciplinary
action, nature of the violation and the sanction, if any, imposed):
(Attach an additional sheet if necessary.)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
9. Movant, either by resignation, withdrawal, or otherwise, never has
terminated or attempted to terminate Movant’s office as an attorney in order to
avoid administrative, disciplinary, disbarment, or suspension proceedings.
107. Movant is not an inactive member of The Florida Bar.
118. Movant is not now a member of The Florida Bar.
129. Movant is not a suspended member of The Florida Bar.
1310. Movant is not a disbarred member of The Florida Bar nor has Movant
received a disciplinary resignation from The Florida Bar.
1411. Movant has not previously been disciplined or held in contempt by
reason of misconduct committed while engaged in representation pursuant to
Florida Rule of Judicial Administration 2.510, except as provided below (give date
of disciplinary action or contempt, reasons therefor, and court imposing contempt):
(Attach an additional sheet if necessary.)
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
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1512. Movant has filed motion(s) to appear as counsel in Florida state courts
during the past five (5) years in the following matters: (Attach an additional sheet
if necessary.)
Date of Motion Case Name Case Number Court Date Motion Granted/Denied
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
1613. Local counsel of record associated with Movant in this matter is
_________________ who is an active member in good standing of The Florida Bar
(Name and Florida Bar Number)
and has offices at , , ,
(Street Address) (City) (County)
________________, .
(State) (Zip Code) (Telephone with area code)
(If local counsel is not an active member of The Florida Bar in good standing,
please provide information as to local counsel’s membership
status.___________________________________)
1714. Movant has read the applicable provisions of Florida Rule of Judicial
Administration 2.510 and Rule 1-3.10 of the Rules Regulating The Florida Bar and
certifies that this verified motion complies with those rules.
1815. Movant agrees to comply with the provisions of the Florida Rules of
Professional Conduct and consents to the jurisdiction of the courts and the Bar of
the State of Florida.
WHEREFORE, Movant respectfully requests permission to appear in this
court for this cause only.
DATED this ___________ day of ___________________, 20____.
______________________________
Movant
______________________________
Address
______________________________
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Address
______________________________
City, State, Zip Code
______________________________
Telephone Number
______________________________
E-mail Address
STATE OF ______________________
COUNTY OF ______________________
I, ________________________________, do hereby swear or affirm under
penalty of perjury that I am the Movant in the above-styled matter; that I have read
the foregoing Motion and know the contents thereof, and the contents are true of
my own knowledge and belief.
______________________________
Movant
I hereby consent to be associated as local counsel of record in this cause
pursuant to Florida Rule of Judicial Administration 2.510.
DATED this ___________ day of __________________________, 20____.
______________________________
Local Counsel of Record
______________________________
Address
______________________________
Address
______________________________
City, State, Zip Code
______________________________
Telephone Number
______________________________
Florida Bar Number
______________________________
E-mail Address
CERTIFICATE OF SERVICE
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I HEREBY CERTIFY that a true and correct copy of the foregoing motion
was served on (insert the name or names and addresses used for service) by (e-
mail) (delivery) (by mail) (fax) to PHV Admissions, The Florida Bar, 651 East
Jefferson Street, Tallahassee, Florida 32399-2333 accompanied by payment of the
$250.00 filing fee made payable to The Florida Bar, or notice that the movant has
requested a judicial waiver of said fee; and by (e-mail) (delivery) (mail) (fax) to
(name of attorney or party if not represented)
__________________________________________________________________
__________________________________________________________________
Name and Address of All Counsel of Record and of Parties Not Represented
by Counsel this ________ day of ______________________, 20____.
__________________________________
Movant
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