In Re AMENDMENTS TO the RULES REGULATING THE FLORIDA BAR (BIENNIAL REPORT) , 39 Fla. L. Weekly Supp. 359 ( 2014 )

Supreme Court of Florida
____________
No. SC12-2234
____________
IN RE: AMENDMENTS TO THE RULES REGULATING
THE FLORIDA BAR (BIENNIAL REPORT).
[May 29, 2014]
REVISED OPINION
PER CURIAM.
The opinion dated March 27, 2014, is withdrawn and this revised opinion is
substituted in its place. 1
This matter is before the Court on the petition of The Florida Bar proposing
amendments to the Rules Regulating the Florida Bar. See R. Regulating Fla. Bar
1-12.1. We have jurisdiction. See art. V, § 15, Fla. Const.
The petition, which proposes amendments to existing rules, was approved by
the Board of Governors. Formal notice of the proposed amendments was
published in the September 1, 2012, issue of The Florida Bar News. The notice
1. On April 8, 2014, The Florida Bar filed a “Motion for Clarification and
Request to Modify the Effective Date of Rule 10-3.1.” We hereby grant the
motion for clarification and request to modify the effective date by this opinion.
was also published on The Florida Bar’s website. The Bar did not receive any
comments after the proposals were published for comment. Thereafter, on
October 18, 2012, the Bar filed the proposed amendments with the Court. Only
one comment was filed with the Court. 2
The Bar petitions to amend Rules Regulating the Florida Bar 1-3.7
(Reinstatement to Membership); 1-7.3 (Membership Fees); 2-7.3 (Creation of
Sections and Divisions); 3-4.1 (Notice and Knowledge of Rules; Jurisdiction Over
Attorneys of Other States and Foreign Countries); 3-6.1 (Generally); 3-7.1
(Confidentiality); 3-7.2 (Procedures Upon Criminal or Professional Misconduct;
Discipline Upon Determination or Judgment of Guilt of Criminal Misconduct;
Discipline on Removal From Judicial Office); 3-7.10 (Reinstatement and
Readmission Procedures); 4-1.6 (Confidentiality of Information); 4-1.7 (Conflict
of Interest; Current Clients); 4-1.9 (Conflict of Interest; Former Client); 4-1.10
(Imputation of Conflicts of Interest; General Rule); 4-2.4 (Lawyer Serving as
Third-Party Neutral); 4-3.4 (Fairness to Opposing Party and Counsel); 4-4.2
(Communication With Person Represented by Counsel); 4-6.5 (Voluntary pro bono
plan); 4-8.6 (Authorized Business Entities); 5-1.2 (Trust Accounting Records and
2. The comment, filed by the Association of Corporate Counsel, supports
the proposals for chapters 12 and 17 of the Rules Regulating the Florida Bar that
would permit in-house legal counsel to volunteer to provide pro bono legal
services.
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Procedures); 10-3.1 (Generally); 10-7.2 (Proceedings For Indirect Criminal
Contempt); 12-1.2 (Definitions); 12-1.3 (Activities); 12-1.4 (Supervision and
limitations); 12-1.5 (Certification); 12-1.6 (Withdrawal of certification); 12-1.7
(Discipline); 14-1.2 (Jurisdiction); 17-1.3 (Activities); 20-2.1 (Generally); 20-3.1
(Requirements for Registration); 20-4.1 (Generally); and 20-6.1 (Generally). After
considering the petition, the Court adopts The Florida Bar’s proposals,3 except as
follows.
The Bar proposes amending Rule 3-6.1 (Employment of Certain Lawyers or
Former Lawyers; Generally) by adding new subdivision (d)(4) to prohibit
suspended attorneys and former attorneys who have been disbarred, or whose
disciplinary resignations or revocations have been allowed, from representing
clients in administrative proceedings and before administrative agencies which
allow nonlawyer agents or “qualified representatives” to represent clients in certain
circumstances. Although we appreciate the Bar’s diligent work on this issue, we
do not adopt the proposal because we do not have the authority to prohibit a lawyer
from doing non-legal work or engaging in lawful activities.
3. We adopt the proposal for Rule 1-3.7(g) (Reinstatement to Membership;
Inactive Members), but direct the Bar to study the rule and determine whether
more extensive requirements should be imposed for those lawyers who have been
inactive and not practicing law for five years or more.
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Next, the Bar proposes amending Rule 4-1.7(d) (Conflict of Interest; Current
Clients; Lawyers Related by Blood or Marriage) to clarify that family relationships
that must be considered as creating conflicts between lawyers include relationships
by blood or marriage. We agree with the proposal, but modify it to also include
lawyers who are related by adoption. As we state in the comment to the rule, “The
purpose of Rule 4-1.7(d) is to prohibit representation of adverse interests, unless
informed consent is given by the client, by a lawyer related to another lawyer by
blood, adoption, or marriage as a parent, child, sibling, or spouse so as to include
those with biological or adopted children and within relations by marriage those
who would be considered in-laws and stepchildren and stepparents.” We adopt the
rule as modified herein. In addition, we direct the Bar to study the rule further and
consider whether the current categories should be broadened beyond parent, child,
sibling, and spouse to include other significant relationships.
Accordingly, the Court adopts the amendments to the Rules Regulating the
Florida Bar as set forth in the appendix to this opinion. Deletions are indicated by
struck-through type, and new language is indicated by underscoring. The
comments are offered for explanation and guidance only and are not adopted as an
official part of the rules. The amendments to rule 10-3.1(a) shall become effective
on July 1, 2015, at 12:01 a.m. The remainder of the amendments shall become
effective on June 1, 2014, at 12:01 a.m.
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It is so ordered.
POLSTON, C.J., and PARIENTE, LEWIS, QUINCE, LABARGA, and PERRY,
JJ., concur.
CANADY, J., concurs in result.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – The Florida Bar
John F. Harkness, Jr., Executive Director, Mary Ellen Bateman, Ethics and
Unlicensed Practice Division Director, Elizabeth Clark Tarbert, Ethics Counsel,
and Lori S. Holcomb, Director, Client Protection, The Florida Bar, Tallahassee,
Florida,
for Petitioner
Amar D. Sarwal and Evan P. Schultz, on behalf of the Association of Corporate
Counsel, Washington, D.C.,
Responding with comments
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APPENDIX
RULES REGULATING THE FLORIDA BAR
CHAPTER 1 GENERAL
1-3. MEMBERSHIP
RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP
(a) Eligibility for Reinstatement. Members who have retired or been
delinquent for a period of time not in excess of 5 years are eligible for
reinstatement under this rule. Time shallwill be calculated from the day of the
retirement or delinquency.
Inactive members may also seek reinstatement under this rule.
(b) Petitions Required. A member seeking reinstatement must file a
petition with the executive director setting forth the reason for inactive status,
retirement, or delinquency and showing good cause why the petition for
reinstatement should be granted. The petition shallmust be on a form approved by
the board of governors and the petitioner shallwill furnish such information on
such form as the board of governors may require. The petition shallmust be
accompanied by a nonrefundable reinstatement fee of $150 and payment of all
arrearages unless adjusted by the executive director with concurrence of the
executive committee for good cause shown. Inactive members shall not beare not
required to pay the reinstatement fee. No member shallwill be reinstated if, from
the petition or from investigation conducted, the petitioner is not of good moral
character and morally fit to practice law or if the member is delinquent in
compliance with the continuing legal education or basic skills course requirements.
If the executive director is in doubt as to approval of a petition the executive
director may refer the petition to the board of governors for its action. Action of
the executive director or board of governors denying a petition for reinstatement
may be reviewed upon petition to the Supreme Court of Florida.
(c) Members Who Have Retired or Been Delinquent for Less Than 5
Years, But More Than 3 Years. Members who have retired or been delinquent
for less than 5 years, but more than 3 years, shallmust have completed 10 hours of
continuing legal education courses for each year or portion thereofof a year that the
member had retired or was deemed delinquent.
(d) Members Who Have Retired or Been Delinquent for 5 Years or
More. Members who have retired or have been deemed delinquent for a period of
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5 years or longer shallwill not be reinstated under this rule and must be readmitted
upon application to and approval by the Florida Board of Bar Examiners.
(e) Members Who Have Permanently Retired. Members who have
permanently retired shallwill not be reinstated under this rule.
(f) Members Delinquent 60 Days or Less. Reinstatement from
membership fees delinquency accomplished within 60 days from the date of
delinquency shall be deemed torelates back to the date before the delinquency.
Any member reinstated within the 60-day period shall not beis not subject to
disciplinary sanction for practicing law in Florida during that time.
(g) Inactive Members. Inactive members may be reinstated to membership
in good standing by petition filed with the executive director, in the form and as
provided in (b) above, except:
(1) If the member has been inactive for greater than 5 years, but has been
authorized to practice law in another jurisdiction, and either actively practiced
law in anotherthat jurisdiction for the entire period of time or held a position
that requires a license as an attorneya lawyer for the entire period of time, the
member shallwill be required to complete the Florida Law Update continuing
legal education course as part of continuing legal education requirements.
(2) If the member has been inactive for greater than 5 years and has been
authorized to but has not actively practiced law in another jurisdiction or held a
position that requires a license as an attorney for the entire period of timedoes
not meet the requirements of subdivision (1), the member shallwill be required
to complete the basic skills course requirement and the 30-hour continuing
legal education requirement.
(3) An inactive member shall not beis not eligible for reinstatement until
all applicable continuing legal education requirements have been completed
and the remaining portion of membership fees for members in good standing
for the current fiscal year have been paid.
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1-7. MEMBERSHIP FEES AND FISCAL CONTROL
RULE 1-7.3 MEMBERSHIP FEES
(a) Membership Fees Requirement. On or before July 1 of each year,
every member of The Florida Bar, except those members who have retired,
resigned, been disbarred, or been classified as inactive members pursuant to rule
3-7.13, shallmust pay annual membership fees to The Florida Bar in the amount set
by the budget, provided that the board of governors shall not fix the membership
fees at more thanof $265 per annum. At the time of the payment of membership
fees eEvery member of The Florida Bar shallmust pay the membership fee and
concurrently file with the executive director a fee statement setting forthwith any
information that may be required by the board of governors requires.
(b) Prorated Membership Fees. Membership fees will be prorated for
anyonePersons admitted to The Florida Bar subsequent toafter July 1 of any fiscal
year shall pay the annual membership fees for that fiscal year. The prorated
amount will be based on the basis of the number of full calendar months
ofremaining in the fiscal year remaining at the time of their admission.
Failure to payUnpaid prorated membership fees shall result in the amount of
such proratedwill be added to the next annual membership fees being added to the
next annual membership fees billingbill with no penalty to the member without
penalty. The Florida Bar must receive the combined prorated and annual
membership fees payment must thereafter be received by The Florida Bar, on or
before August 15 of the first full year fees are due unless the member elects to pay
by installment under this rule.
(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; or
(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’s notice of election to must notify The Florida Bar of the
intention to pay membership fees in installments under this rule and the. The first
installment payment thereunder must be postmarked no later than August 15. The
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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) shall beare subject to a one-time late charge of $50 per fiscal year,
which shall. The late charge must accompany the final payment unless adjusted by
the. The executive director with concurrence of the executive committee for good
cause shownmay adjust the late charge.
The executive director shallwill send written notice by registered or certified
mail to the last official bar address of each member whose membership fees and
late fees have has not been paid under this rulemembership 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 Upon failure
to pay membership fees and any late charges under this ruleare not paid by March
15, unless adjusted by the. The executive director with concurrence of the
executive committee may adjust these fees or due date for good cause shown, the
member shall be a delinquent member.
Each member who elects to pay annual membership fees in installments
under this rule may be charged an additional administrative fee set by the board of
governors to defray the costs of this activity as set by the Board of Governors.
(d) Election of Inactive Membership. A member in good standing may
elect by August 15 of a fiscal year to be classified as an inactive member. Such
election shall be made only by indication of such choiceThis election must be
indicated on the annual membership fees statement and payment of the prescribed
annual membership feesand received by The Florida Bar by August 15. Failure to
make the initial election by August 15 shall constitute a waiver of theIf the annual
membership fees statement is received after August 15, the member’s right to the
electioninactive status is waived until the next fiscal year. Once a member has
properly elected to be classified as an inactive member, suchInactive classification
shallwill continue from fiscal year to fiscal year until such time as the member is
reinstated as a member in good standing as elsewhere provided in these ruleswho is
eligible to practice law in Florida. The election of inactive status shall beis subject
to the restrictions and limitations elsewhere provided elsewhere in these rules.
Membership fees for inactive members shall be set by the board of
governors in an amount not to exceed are $175 per annum.
(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 shallmust be accompanied by a late charge of $50
unless adjusted by the executive director with concurrence of the executive
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committee for good cause shown. The executive director shallwill send written
notice by registered or certified mail 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 uponUpon failure to pay membership fees and
any late charges by September 30, unless adjusted by the executive director with
concurrence of the executive committee for good cause shown, the member shall
be a delinquent member.
(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 during the bar’s fiscal year shall beare exempt from the payment of
membership fees required under this rule. For purposes of this rule, theThe 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
shallmust 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, such
membership fee shallwill 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 shallmust report to The Florida Bar that he or she is no
longer on active duty status in the United States Armed Forces.
CHAPTER 2. BYLAWS OF THE FLORIDA BAR
2-7. SECTIONS AND DIVISIONS
BYLAW 2-7.3 CREATION OF SECTIONS AND DIVISIONS
Sections and divisions may be created or abolished by the board of
governors as deemed necessary or desirable.
(a) Sections. The following sections of The Florida Bar have been created
by the board of governors:
(1) Administrative Law Section;
(2) Alternative Dispute Resolution Section;
(23) Appellate Practice Section;
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(34) Business Law Section;
(45) City, County and Local Government Law Section;
(56) Criminal Law Section;
(67) Elder Law Section;
(78) Entertainment, Arts, and Sports Law Section;
(89) Environmental and Land Use Law Section;
(910) Equal Opportunities Law Section;
(1011) Family Law Section;
(1112) General Practice, Solo and Small Firm Section;
(1213) Government Lawyer Section;
(1314) Health Law Section;
(1415) International Law Section;
(1516) Labor and Employment Law Section;
(1617) Public Interest Law Section;
(1718) Real Property, Probate, and Trust Law Section;
(1819) Tax Section;
(1920) Trial Lawyers Section; and
(2021) Workers’ Compensation Section.
(b) [No Change]
CHAPTER 3. RULES OF DISCIPLINE
SUBCHAPTER 3-4 STANDARDS OF CONDUCT
RULE 3-4.1 NOTICE AND KNOWLEDGE OF RULES; JURISDICTION
OVER ATTORNEYSLAWYERS OF OTHER STATES AND FOREIGN
COUNTRIES
Every member of The Florida Bar and every attorneylawyer of another state
or foreign country who provides or offers to provide any legal services in this state
is within the jurisdiction and subject to the disciplinary authority of this court and
its agencies under this rule and is charged with notice and held to know the
provisions of this rule and the standards of ethical and professional conduct
prescribed by this court. Jurisdiction over an attorneya lawyer of another state who
is not a member of The Florida Bar shall beis limited to conduct as an attorneya
lawyer in relation to the business for which the attorneylawyer was permitted to
practice in this state and the privilege in the future to practice law in the state of
Florida. When The Florida Bar disciplines a lawyer that the bar is aware has bar
membership in a European Union (E.U.) nation, the bar will notify the appropriate
E.U. representative. The bar will use forms adopted by the Council of Laws and
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Bar Societies of Europe (CCBE) and the Conference of Chief Justices of the
United States.
3-6. EMPLOYMENT OF CERTAIN ATTORNEYSLAWYERS OR
FORMER ATTORNEYSLAWYERS
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 and former
lawyers who have been disbarred or whose disciplinary resignations or disciplinary
revocations have been granted by the Florida Supreme Court [for purposes of this
rule such 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 shall beis considered as employed by an
entity providing legal services if the individual is a salaried or hourly employee,
volunteer worker, or an independent contractor providing services to the entity.
(b) Employment by Former Subordinates Prohibited for a Period of 3
Years. An individual subject to this rule may not, for a period of 3 years from the
entry of the order pursuant to which the suspension, disciplinary resignation,
disciplinary revocation, or disbarment became effective, or until the individual is
reinstated or readmitted to the practice of law, whichever occurs sooner, be
employed by or work under, the supervision of another lawyer who was supervised
by the individual at the time of or subsequent to the acts giving rise to the order.
(c) Notice of Employment Required. Before employment commences, the
entity shallmust provide The Florida Bar with a notice of employment and a
detailed description of the intended services to be provided by the individual
subject to this rule.
(d) Prohibited Conduct.
(1) Direct Client Contact. Individuals subject to this rule shallmust not
have direct contact with any client. Direct client contact does not include the
participation of the individual as an observer in any meeting, hearing, or
interaction between a supervising attorneylawyer and a client.
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(2) Trust Funds or Property. Individuals subject to this rule shallmust not
receive, disburse, or otherwise handle trust funds or property.
(3) Practice of Law. Individuals subject to this rule shallmust not engage
in conduct that constitutes the practice of law and such individuals shallmust
not hold themselves out as being eligible to do so.
(e) Quarterly Reports by Individual and Employer Required. The
individual subject to this rule and employer shallmust submit sworn information
reports to The Florida Bar. Such reports shallmust be filed quarterly, based on the
calendar year, and include statements that no aspect of the work of the individual
subject to this rule has involved the unlicensed practice of law, that the individual
subject to this rule has had no direct client contact, that the individual subject to
this rule did not receive, disburse, or otherwise handle trust funds or property, and
that the individual subject to this rule is not being supervised by an attorneya
lawyer whom the individual subject to this rule supervised within the 3 years
immediately previous to the date of the suspension, disbarment, or disciplinary
resignation, or disciplinary revocation.
3-7. PROCEDURES
RULE 3-7.1 CONFIDENTIALITY
(a) Scope of Confidentiality. All matters 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 shall beare confidential and shallwill not be disclosed except as provided
hereinin these rules. When disclosure is permitted under these rules, it shallwill 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.
Unless otherwise ordered by this court or the referee in proceedings under
these rules, nothing in these rules shallwill prohibit 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.
(1) Pending Investigations. Disciplinary matters pending at the initial
investigatory and grievance committee levels shall beare treated as confidential
by The Florida Bar, except as provided in rules 3-7.1(e) and (k).
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(2) Minor Misconduct Cases. Any case in which a finding of minor
misconduct has been entered by action of the grievance committee or board
shall beis public information.
(3) Probable Cause Cases. Any disciplinary case in which a finding of
probable cause for further disciplinary proceedings has been entered shall beis
public information. For purposes of this subdivision a finding of probable
cause shall be is deemed to have been made in those cases authorized by rule
3-3.2(a), for the filing of a formal complaint without the prior necessity of a
finding of probable cause.
(4) No Probable Cause Cases. Any disciplinary case that has been
concluded by a finding of no probable cause for further disciplinary
proceedings shall beis public information.
(5) Diversion or Referral to Grievance Mediation Program. Any
disciplinary case that has been concluded by diversion to a practice and
professionalism enhancement program or by referral to the grievance
mediation program shall beis public information upon the entry of such a
recommendation.
(6) Contempt Cases. Contempt proceedings authorized elsewhere in these
rules shall beare public information even though the underlying disciplinary
matter is confidential as defined in these rules.
(7) Incapacity Not Involving Misconduct. Proceedings for placement on
the inactive list for incapacity not involving misconduct shall beare public
information upon the filing of the petition with the Supreme Court of Florida.
(8) Petition for Emergency Suspension or Probation. Proceedings seeking
a petition for emergency suspension or probation shall beare public
information.
(9) Proceedings on Determination or Adjudication of Guilt of Criminal
Misconduct. Proceedings on determination or adjudication of guilt of criminal
misconduct, as provided elsewhere in these rules, shall beare public
information.
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(10) Professional Misconduct in Foreign Jurisdiction. Proceedings based
on disciplinary sanctions entered by a foreign court or other authorized
disciplinary agency, as provided elsewhere in these rules, shall beare public
information.
(11) Reinstatement Proceedings. Reinstatement proceedings, as provided
elsewhere in these rules, shall beare public information.
(12) Disciplinary Resignations. Proceedings involving petitions for
disciplinary resignation, as provided elsewhere in these rules, shall beare public
information.
(b) Public Record. The public record shall 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) Circuit Court Proceedings. Proceedings under rule 3-3.5 shall beare
public information.
(d) Limitations on Disclosure. Any material provided to The Florida Bar
that is confidential under applicable law shallwill remain confidential and shallwill
not be disclosed except as authorized by the applicable law. If this type of material
is made a part of the public record, that portion of the public record may be sealed
by the grievance committee chair, the referee, or the Supreme Court of Florida.
The procedure for maintaining the required confidentiality shall be asis set
forth in subdivision (m) below.
(e) Response to Inquiry. Authorized representatives of The Florida Bar
shallwill respond to specific inquiries concerning matters that are in the public
domain, but otherwise confidential under the rules, by acknowledging the status of
the proceedings.
(f) Notice to Law Firms. When a disciplinary file is opened the respondent
shallmust 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 shallmust be in writing
and in the following form:
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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 to rule
3-7.1(f) of the Rules Regulating The Florida Bar.
The notice shallmust be provided within 15 days of notice that a disciplinary
file has been opened and a copy of the above notice shallmust be served on The
Florida Bar.
(g) [No Change]
(h) Notice to Judges. Any judge of a court of record upon inquiry of the
judge shallwill 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 shallmust maintain the confidentiality of the records and shall not otherwise
disclose the status of the case.
(i) Evidence of Crime. The confidential nature of these proceedings
shalldoes not preclude the giving of any information or testimony to authorities
authorized to investigate alleged criminal activity.
(j) Chemical Dependency and Psychological Treatment. That an
attorneya lawyer has voluntarily sought, received, or accepted treatment for
chemical dependency or psychological problems shall beis confidential and
shallwill not be admitted as evidence in disciplinary proceedings under these rules
unless agreed to by the attorney who sought the treatment.
For purposes of this subdivision, an attorney shall bea lawyer is deemed to
have voluntarily sought, received, or accepted treatment for chemical dependency
or psychological problems if the attorneylawyer 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 attorneyslawyers to
voluntarily seek advice, counsel, and treatment available to attorneyslawyers,
without fear that the fact it is sought or rendered will or might cause
embarrassment in any future disciplinary matter.
(k) [No Change]
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(l) Disclosure by Waiver of Respondent. Upon 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) – (2) [No Change]
(3) The Florida Bar Board of Legal Specialization and Education and any
of its certification committees for the purpose of evaluating the character and
fitness of a candidate for board certification or recertification; or
(34) the governor of the State of Florida for the purpose of evaluating the
character and fitness of a nominee to judicial office.
(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. Jud. Admin. 2.420. It shallwill be the duty of respondents
and other persons submitting documents and information to the bar to notify bar
staff that such 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 3-7.2 PROCEDURES UPON CRIMINAL OR PROFESSIONAL
MISCONDUCT; DISCIPLINE UPON DETERMINATION OR JUDGMENT
OF GUILT OF CRIMINAL MISCONDUCT; DISCIPLINE ON REMOVAL
FROM JUDICIAL OFFICE
(a) Definitions.
(1) Judgment of Guilt. For the purposes of these rules, “judgment of guilt”
shall includes only those cases in which the trial court in the criminal
proceeding enters an order adjudicating the respondent guilty of the offense(s)
charged.
(2) Determination of Guilt. For the purposes of these rules, “determination
of guilt” shall includes those cases in which the trial court in the criminal
proceeding enters an order withholding adjudication of the respondent’s guilt
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of the offense(s) charged, those cases in which the convicted attorneylawyer
has entered a plea of guilty to criminal charges, those cases in which the
convicted attorneylawyer has entered a no contest plea to criminal charges,
those cases in which the jury has rendered a verdict of guilty of criminal
charges, and those cases in which the trial judge in a bench trial has rendered a
verdict of guilty of criminal charges.
(3) Convicted AttorneyLawyer. For the purposes of these rules,
“convicted attorneylawyer” shall mean an attorneymeans a lawyer who has had
either a determination or judgment of guilt entered by the trial court in the
criminal proceeding.
(b) Determination or Judgment of Guilt, Admissibility; Proof of Guilt.
Determination or judgment of guilt of a member of The Florida Bar by a court of
competent jurisdiction upon trial of or plea to any crime under the laws of this
state, or under the laws under which any other court making such determination or
entering such judgment exercises its jurisdiction, shall beis admissible in
proceedings under these rules and shall beis conclusive proof of guilt of the
criminal offense(s) charged for the purposes of these rules.
(c) Notice of Institution of Felony Criminal Charges. Upon the
institution of a felony criminal charge against a member of The Florida Bar by the
filing of an indictment or information the member shallmust within 10 days of the
institution of the felony criminal charges notify the executive director of The
Florida Bar of such charges. Notice shall includes a copy of the document(s)
evidencing institution of the charges.
If the state attorney whose office is assigned to a felony criminal case is
aware that the defendant is a member of The Florida Bar, the state attorney
shallmust provide a copy of the indictment or information to the executive director.
(d) Notice of Determination or Judgment of Guilt of Felony Charges.
(1) Trial Judge. If any such determination or judgment is entered in a
court of the State of Florida, the trial judge shallmust, within 10 days of the
date on which the determination or judgment is entered, give notice thereof to
the executive director of The Florida Bar and shall include a certified copy of
the document(s) on which the determination or judgment was entered.
(2) Clerk of Court. If any such determination or judgment is entered in a
court of the State of Florida, the clerk thereof shallof that court must, within 10
- 18 -
days of the date on which the determination or judgment is entered, give notice
thereof to the executive director and shall include a certified copy of the
document(s) on which the determination or judgment was entered.
(3) State Attorney. If the state attorney whose office is assigned to a
felony criminal case is aware that the defendant is a member of The Florida
Bar, the state attorney shallmust give notice of the determination or judgment
of guilt to the executive director and shall include a copy of the document(s)
evidencing such determination or judgment.
(e) Notice by Members of Determination or Judgment of Guilt of All
Criminal Charges. A member of The Florida Bar shallmust within 10 days of
entry of a determination or judgment for any criminal offense, which was entered
on or after August 1, 2006, notify the executive director of The Florida Bar of such
determination or judgment. Notice shallmust include a copy of the document(s) on
which such determination or judgment was entered.
(f) Suspension by Judgment of Guilt (Felonies). Upon receiving notice
that a member of the bar has been determined to be or adjudicated guilty of a
felony, the bar will file a “Notice of Determination or Judgment of Guilt” or a
consent judgment for disbarment or disciplinary revocation in the Supreme Court
of Florida. A copy of the document(s) on which the determination or judgment is
based shallmust be attached to the notice. Upon the filing of the notice with the
Supreme Court of Florida and service of such notice upon the respondent, the
respondent shall standis suspended as a member of The Florida Bar as defined in
rule 3-5.1(e).
(g) Petition to Modify or Terminate Suspension. At any time after the
filing of a notice of determination or judgment of guilt, the respondent may file a
petition with the Supreme Court of Florida to modify or terminate such suspension
and shallmust serve a copy thereof uponof the petition on the executive director.
The filing of such petition shallwill not operate as a stay of the suspension imposed
under the authority of this rule.
(h) Appointment of Referee. Upon the entry of an order of suspension, as
provided above, the supreme court shallmust promptly appoint or direct the
appointment of a referee.
(1) Hearing on Petition to Terminate or Modify Suspension. The referee
shallmust hear a petition to terminate or modify a suspension imposed under
- 19 -
this rule within 7 days of appointment and submit a report and recommendation
to the Supreme Court of Florida within 7 days of the date of the hearing. The
referee shallwill recommend termination or modification of the suspension
only if the suspended member can demonstrate that the member is not the
convicted person or that the criminal offense is not a felony.
(2) Hearing on Sanctions. In addition to conducting a hearing on a
petition to terminate or modify a suspension entered under this rule, the referee
shallmay also hear argument concerning the appropriate sanction to be imposed
and file a report and recommendation with the supreme court in the same
manner and form as provided in rule 3-7.6(m) of these rules. The hearing
shallmust be held and a report and recommendation shall befiled with the
supreme court within 90 days of assignment as referee.
The respondent may challenge the imposition of a sanction only on the
grounds of mistaken identity or whether the conduct involved constitutes a
felony under applicable law. The respondent may present relevant character
evidence and relevant matters of mitigation regarding the proper sanction to be
imposed. The respondent may cannot contest the findings of guilt in the
criminal proceedings. A respondent who entered a plea in the criminal
proceedings may beis allowed to explain the circumstances concerning the
entry of the plea for purposes of mitigation.
The report and recommendations of the referee may be reviewed in the same
manner as provided in rule 3-7.7 of these rules.
(i) Appeal of Conviction. If an appeal is taken by the respondent from the
determination or judgment in the criminal proceeding, the suspension shallwill
remain in effect during the appeal. If on review the cause is remanded for further
proceedings, the suspension shallwill remain in effect until the final disposition of
the criminal cause unless modified or terminated by the Supreme Court of Florida
as elsewhere provided.
Further, the suspension imposed shallwill remain in effect until civil rights
have been restored and until the respondent is reinstated.
(j) – (k) [No Change]
(l) Professional Misconduct in Foreign Jurisdiction.
(1) Notice of Discipline by a Foreign Jurisdiction. A member of The
Florida Bar who has submitted a disciplinary resignation or otherwise
- 20 -
surrendered a license to practice law in lieu of disciplinary sanction, or has
been disbarred or suspended from the practice of law by a court or other
authorized disciplinary agency of another state or by a federal court shallmust
within 30 days after the effective date of the disciplinary resignation,
disbarment or suspension file with the Supreme Court of Florida and the
executive director of The Florida Bar a copy of the order or judgment effecting
such disciplinary resignation, disbarment or suspension.
(2) Effect of Adjudication or Discipline by a Foreign Jurisdiction. On
petition of The Florida Bar supported by a copy of a final adjudication by a
foreign court or disciplinary authority, the Supreme Court of Florida may issue
an order suspending on an emergency basis the member who is the subject of
the final adjudication. All of the conditions not in conflict with this rule
applicable to issuance of emergency suspension orders elsewhere within these
Rules Regulating The Florida Bar shall beare applicable to orders entered
under this rule.
(m) Discipline Upon Removal From Judicial Office.
(1) Notice of Removal. If an order of the Supreme Court of Florida
removes a member of The Florida Bar from judicial office for judicial
misconduct, the clerk of the supreme court shallwill forward a copy of the
order of removal to the executive director of The Florida Bar.
(2) [No Change]
(3) Admissibility of Order; Conclusive Proof of Facts. The order of
removal shall beis admissible in proceedings under these rules and shall beis
conclusive proof of the facts on which the judicial misconduct was found by
the court.
(4) Determination of Lawyer Misconduct. The issue of whether the facts
establishing the judicial misconduct also support a finding of lawyer
misconduct shall beare determined by the referee based on the record of the
proceedings.
- 21 -
RULE 3-7.10 REINSTATEMENT AND READMISSION PROCEDURES
(a) Reinstatement; Applicability. A lawyer who is ineligible to practice
due to a court-ordered disciplinary suspension of 91 days or more or who has been
placed on the inactive list for incapacity not related to misconduct may be
reinstated to membership in good standing in The Florida Bar and be eligible to
practice again pursuant to this rule. The proceedings under this rule are not
applicable to any attorneylawyer who is not eligible to practice law due to a
delinquency as defined in rule 1-3.6 of these rules.
(b) Petitions; Form and Contents.
(1) Filing. The original petition for reinstatement and 1 copy thereof
shallmust be in writing, verified by the petitioner, and addressed to and filed
with the Supreme Court of Florida. A copy shallmust be served on Staff
Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida
32399-2300.
(2) Form and Exhibits. The petition shallmust be in such form and shall
be accompanied by such exhibits as provided for elsewhere in this rule. The
information required concerning the petitioner may include any or all of the
following matters in addition to such other matters as may be reasonably
required to determine the fitness of the petitioner to resume the practice of law:
criminal and civil judgments; disciplinary judgments; copies of income tax
returns together with consents to secure original returns; occupation during
suspension and employment information in connection therewith; financial
statements; and statement of restitution of funds that were the subject matter of
disciplinary proceedings. In cases seeking reinstatement from incapacity, the
petition shallmust also include copies of all pleadings in the matter leading to
placement on the inactive list and all such other matters as may be reasonably
required to demonstrate the character and fitness of the petitioner to resume the
practice of law.
(c) Deposit for Cost. The petition shallmust be accompanied by proof of a
deposit paid to The Florida Bar in such amount as the board of governors shall
prescribes to ensure payment of reasonable costs of the proceedings, as provided
elsewhere in this rule.
(d) Reference of Petition For Hearing. The chief justice shallwill refer
the petition for reinstatement to a referee for hearing; provided, however, that no
- 22 -
such reference shallwill be made until evidence is submitted showing that all costs
assessed against the petitioner in all disciplinary or incapacity proceedings have
been paid and restitution has been made.
(e) Bar Counsel. When a petition for reinstatement is filed, the board of
governors or staff counsel, if authorized by the board of governors, may appoint
bar counsel to represent The Florida Bar in the proceeding. The duties of such
attorneys shall belawyers are to appear at the hearings and to prepare and present
to the referee evidence that, in the opinion of the referee or such attorneylawyer,
should be considered in passing upon the petition.
(f) Determination of Fitness by Referee Hearing. The referee to whom
the petition for reinstatement is referred shallmust conduct the hearing as a trial, in
the same manner, to the extent practical, as provided elsewhere in these rules. The
matter to decide shall beis the fitness of the petitioner to resume the practice of
law. In determining the fitness of the petitioner to resume the practice of law, the
referee shallwill consider whether the petitioner has engaged in any disqualifying
conduct, the character and fitness of the petitioner, and whether the petitioner has
been rehabilitated, as further described in this subdivision. All conduct engaged in
after the date of admission to The Florida Bar shall beis relevant in proceedings
under this rule.
(1) Disqualifying Conduct. A record manifesting a deficiency in the
honesty, trustworthiness, diligence, or reliability of a petitioner may constitute
a basis for denial of reinstatement. The following shall beare considered as
disqualifying conduct:
(A) - (O) [No Change]
(2) [No Change]
(3) Elements of Rehabilitation. Merely showing that an individual is now
living as and doing those things that should be done throughout life, although
necessary to prove rehabilitation, does not prove that the individual has
undertaken a useful and constructive place in society. Any petitioner for
reinstatement from discipline for prior misconduct shall beis required to
produce clear and convincing evidence of such rehabilitation including, but not
limited to, the following elements:
(A) - (F) [No Change]
- 23 -
(G) positive action showing rehabilitation by such things as a person’s
occupation, religion, or community or civic service. Community or civic
service is donated service or activity that is performed by someone or a
group of people for the benefit of the public or its institutions.
The requirement of positive action is appropriate for persons seeking
reinstatement to the bar as well as for applicants for admission to the bar because
service to one’s community is an essential obligation of members of the bar.
(4) Educational Requirements.
(A) [No Change]
(i) The petitioner shallmust have completed at least 10 hours of
continuing legal education courses for each year or portion of a year
that the petitioner was ineligible to practice.
(ii) [No Change]
(B) A petitioner who has been ineligible to practice for 5 years or more
shallwill not be reinstated under this rule until the petitioner has re-taken
and passed the Florida portions of the Florida Bar Examination and the
Multistate Professional Responsibility Examination (MPRE).
(g) Hearing; Notice; Evidence.
(1) Notice. The referee to whom the petition for reinstatement is referred
shallwill fix a time and place for hearing, and notice thereof shall be givenwill
be provided at least 10 days prior to the hearing to the petitioner, to
attorneyslawyers representing The Florida Bar, and to such other persons as
may be designated by the referee to whom the petition is referred.
(2) Appearance. Any persons to whom notice is given, any other
interested persons, or any local bar association may appear before the referee in
support of or in opposition to the petition at any time or times fixed for the
hearings thereon.
(3) Failure of Petitioner to be Examined. For the failure of the petitioner
to submit to examination as a witness pursuant to notice given, the referee
- 24 -
shallwill dismiss the petition for reinstatement unless good cause is shown for
such failure.
(4) Summary Procedure. If after the completion of discovery bar counsel
is unable to discover any evidence on which denial of reinstatement may be
based and if no other person provides same, bar counsel may, with the approval
of the designated reviewer and staff counsel, stipulate to the issue of
reinstatement, including conditions thereonfor reinstatement. The stipulation
shallmust include a statement of costs as provided elsewhere in these Rules
Regulating the Florida Bar.
(5) Evidence of Treatment or Counseling for Dependency or Other
Medical Reasons. If the petitioner has sought or received treatment or
counseling for chemical or alcohol dependency or for other medical reasons
that relate to the petitioner’s fitness to practice law, the petitioner shallmust
waive confidentiality of such treatment or counseling for purposes of
evaluation of the petitioner’s fitness. The provisions of rule 3-7.1(d) are
applicable to information or records disclosed under this subdivision.
(h) Prompt Hearing; Report. The referee to whom a petition for
reinstatement has been referred by the chief justice shallwill proceed to a prompt
hearing, at the conclusion of which the referee shallwill make and file with the
Supreme Court of Florida a report that shall includes the findings of fact and a
recommendation as to whether the petitioner is qualified to resume the practice of
law. The referee shallmust file the report and record in the Supreme Court of
Florida.
(i) Review. Review of referee reports in reinstatement proceedings
shallmust be in accordance with rule 3-7.7.
(j) Recommendation of Referee and Judgment of the Court. If the
petitioner is found unfit to resume the practice of law, the petition shallwill be
dismissed. If the petitioner is found fit to resume the practice of law, the referee
shallwill enter a report recommending, and the court may enter an order of,
reinstatement of the petitioner in The Florida Bar; provided, however, that the
reinstatement may be conditioned upon the payment of all or part of the costs of
the proceeding and upon the making of partial or complete restitution to parties
harmed by the petitioner’s misconduct that led to the petitioner’s suspension of
membership in The Florida Bar or conduct that led to the petitioner’s incapacity;
and further provided, however, if suspension or incapacity of the petitioner has
- 25 -
continued for more than 3 years, the reinstatement may be conditioned upon the
furnishing of such proof of competency as may be required by the judgment in the
discretion of the Supreme Court of Florida, which proof may include certification
by the Florida Board of Bar Examiners of the successful completion of an
examination for admission to The Florida Bar subsequent to the date of the
suspension or incapacity.
(k) Successive Petitions. No petition for reinstatement shallmay be filed
within 1 year following an adverse judgment upon a petition for reinstatement filed
by or on behalf of the same person. In cases of incapacity no petition for
reinstatement shallmay be filed within 6 months following an adverse judgment
under this rule.
(l) Petitions for Reinstatement to Membership in Good Standing.
(1) [No Change]
(2) Style of Petition. Petitions shallmust be styled in the Supreme Court of
Florida and an original and 1 copy filed therewithwith the court. A copy
shallmust be served on Staff Counsel, The Florida Bar, 651 East Jefferson
Street, Tallahassee, Florida 32399-2300.
(3) Contents of Petition. The petition shallmust be verified by the
petitioner and shall beaccompanied by a written authorization to the District
Director of the Internal Revenue Service, authorizing the furnishing of certified
copies of the petitioner’s tax returns for the past 5 years or since admission to
the bar, whichever is greater. The authorization shallmust be furnished on a
separate sheet. The petition shallmust have attached as an exhibit a true copy
of all disciplinary judgments previously entered against the petitioner. It
shallmust also include the petitioner’s statement concerning the following:
(A) - (B) [No Change]
(C) the names and addresses of all complaining witnesses in any
disciplinary proceedings that resulted in suspension; and the name and
address of the referee or judge who heard such disciplinary proceedings or
of the trial judge, complaining witnesses, and prosecuting attorneylawyer,
if suspension was based upon conviction of a felony or misdemeanor
involving moral turpitude;
- 26 -
(D) – (H) [No Change]
(I) a statement showing dates, general nature, and ultimate disposition
of every matter involving the arrest or prosecution of the petitioner during
saidthe period of suspension for any crime, whether felony or
misdemeanor, together with the names and addresses of complaining
witnesses, prosecuting attorneyslawyers, and trial judges;
(J) a statement as to whether any applications were made during
saidthe period of suspension for a license requiring proof of good character
for its procurement; and, as to each such application, the date and the name
and address of the authority to whom it was addressed and theits
disposition thereof;
(K) a statement of any procedure or inquiry, during said the period of
suspension, covering the petitioner’s standing as a member of any
profession or organization, or holder of any license or office, that involved
the censure, removal, suspension, revocation of license, or discipline of the
petitioner; and, as to each, the dates, facts, and the disposition thereof and
the name and address of the authority in possession of the record thereof;
(L) a statement as to whether any charges of fraud were made or
claimed against the petitioner during saidthe period of suspension, whether
formal or informal, together with the dates and names and addresses of
persons making such charges;
(M) [No Change]
(N) a statement showing the dates, general nature, and final
disposition of every civil action whereinin which the petitioner was either a
party plaintiff or defendant, together with dates of filing of complaints,
titles of courts and causes, and the names and addresses of all parties and of
the trial judge or judges, and names and addresses of all witnesses who
testified in said action or actions; and
(O) a statement showing what amounts, if any, of the costs assessed
against the accused attorneylawyer in the prior disciplinary proceedings
against the petitioner have been paid by the petitioner and the source and
amount of funds used for this purpose.
- 27 -
(4) Comments on Petition. Upon the appointment of a referee and bar
counsel, copies of the petition shallwill be furnished by the bar counsel to local
board members, local grievance committees, and to such other persons as are
mentioned in this rule. Persons or groups that wish to respond shallmust direct
their comments to bar counsel. The proceedings and finding of the referee
shallwill relate to those matters described in this rule and also to those matters
tending to show the petitioner’s rehabilitation, present fitness to resume the
practice of law, and the effect of such proposed reinstatement upon the
administration of justice and purity of the courts and confidence of the public
in the profession.
(5) Costs Deposit. The petition shallmust be accompanied by a deposit for
costs of $500.
(m) Costs.
(1) Taxable Costs. Taxable costs of the proceedings shallmust include
only:
(A) – (I) [No Change]
(2) Discretion of Referee. The referee shall havehas discretion to award
costs and absent an abuse of discretion the referee’s award shallwill not be
reversed.
(3) - (4) [No Change]
(n) Readmission; Applicability. A former member who has been
disbarred, disbarred on consent, or whose petition for disciplinary resignation or
revocation has been accepted may be admitted again only upon full compliance
with the rules and regulations governing admission to the bar. No application for
readmission following disbarment, disbarment on consent, or disciplinary
resignation or revocation may be tendered until such time as all restitution and
disciplinary costs as may have been ordered or assessed have been paid together
with any interest accrued.
(1) Readmission After Disbarment. Except as might be otherwise provided
in these rules, no application for admission may be tendered within 5 years
after the date of disbarment or such longer period of time as the court might
- 28 -
determine in the disbarment order. An order of disbarment that states the
disbarment is permanent shallprecludes readmission to The Florida Bar.
(2) Readmission After Disciplinary Resignation or Revocation. In the case
of a disciplinary resignation, no readmission application may be filed until 3
years after the date of the order of the Supreme Court of Florida that accepted
such disciplinary resignation or such additional time as the attorney may have
stated in a petition for disciplinary resignation. No application for readmission
may be filed until all costs in disciplinary cases that were dismissed because of
the disciplinary resignation have been paid by the applicant for readmission. If
an attorney’sA lawyer’s petition for disciplinary resignation or revocation that
states that it is without leave to apply for readmission, such condition shallwill
preclude any readmission. A lawyer who was granted a disciplinary
resignation or revocation may not apply for readmission until all conditions of
the Supreme Court order granting the disciplinary resignation or revocation
have been complied with.
Comment
To further illuminate the community service requirements of Rule
3-7.10(f)(3)(G), bar members can take guidance from the Florida Supreme Court’s
decision in Florida Board of Bar Examiners re M.L.B., 766 So. 2d 994, 998-999
(Fla. 2000). The court held that rules requiring community service “contemplate
and we wish to encourage positive actions beyond those one would normally do for
self benefit, including, but certainly not limited to, working as a guardian ad litem,
volunteering on a regular basis with shelters for the homeless or victims of
domestic violence, or maintaining substantial involvement in other charitable,
community, or educational organizations whose value system, overall mission and
activities are directed to good deeds and humanitarian concerns impacting a broad
base of citizens.”
Court decisions dealing with reinstatements and other discipline provide
further guidance as to what specific actions meet the test of community service.
The court approved dismissal of a petition for reinstatement where the respondent
had no community service and had devoted all her time during suspension to
raising her young children. Fla. Bar v. Tauler, 837 So. 2d 413 (Fla. 2003). In a
more recent decision, the court did not specifically mention lack of community
service in denying reinstatement, but the respondent had shown no evidence of
work for others outside his family in his petition. Respondent’s community service
consisted solely of taking care of his elderly parents and his small child. Fla. Bar
v. Juan Baraque, 43 So. 3d 691 (Fla. 2010).
- 29 -
CHAPTER 4. RULES OF PROFESSIONAL CONDUCT
4-1. CLIENT-LAWYER RELATIONSHIP
RULE 4-1.6 CONFIDENTIALITY OF INFORMATION
(a) Consent Required to Reveal Information. A lawyer shallmust not
reveal information relating to representation of a client except as stated in
subdivisions (b), (c), and (d), unless the client gives informed consent.
(b) When Lawyer Must Reveal Information. A lawyer shallmust reveal
such information to the extent the lawyer reasonably believes necessary:
(1) - (2) [No Change]
(c) When Lawyer May Reveal Information. A lawyer may reveal such
information to the extent the lawyer reasonably believes necessary:
(1) - (4) [No Change]
(5) to comply with the Rules of Professional ConductRegulating The
Florida Bar.
(d) [No Change]
(e) Limitation on Amount of Disclosure. When disclosure is mandated or
permitted, the lawyer shallmust disclose no more information than is required to
meet the requirements or accomplish the purposes of this rule.
Comment
The lawyer is part of a judicial system charged with upholding the law. One
of the lawyer’s functions is to advise clients so that they avoid any violation of the
law in the proper exercise of their rights.
This rule governs the disclosure by a lawyer of information relating to the
representation of a client during the lawyer’s representation of the client. See rule
4-1.18 for the lawyer’s duties with respect to information provided to the lawyer
by a prospective client, rule 4-1.9(c) for the lawyer’s duty not to reveal information
relating to the lawyer’s prior representation of a former client, and rules 4-1.8(b)
and 4-1.9(b) for the lawyer’s duties with respect to the use of such information to
the disadvantage of clients and former clients.
A fundamental principle in the client-lawyer relationship is that, in the
absence of the client’s informed consent, the lawyer must not reveal information
- 30 -
relating to the representation. See terminology for the definition of informed
consent. This contributes to the trust that is the hallmark of the client-lawyer
relationship. The client is thereby encouraged to seek legal assistance and to
communicate fully and frankly with the lawyer even as to embarrassing or legally
damaging subject matter. The lawyer needs this information to represent the client
effectively and, if necessary, to advise the client to refrain from wrongful conduct.
Almost without exception, clients come to lawyers in order to determine their
rights and what is, in the complex of laws and regulations, deemed to be legal and
correct. Based upon experience, lawyers know that almost all clients follow the
advice given, and the law is upheld.
The principle of confidentiality is given effect in 2 related bodies of law, the
attorney-client privilege (which includes the work product doctrine) in the law of
evidence and the rule of confidentiality established in professional ethics. The
attorney-client privilege applies in judicial and other proceedings in which a
lawyer may be called as a witness or otherwise required to produce evidence
concerning a client. The rule of client-lawyer confidentiality applies in situations
other than those where evidence is sought from the lawyer through compulsion of
law. The confidentiality rule applies not merely to matters communicated in
confidence by the client but also to all information relating to the representation,
whatever its source. A lawyer may not disclose such information except as
authorized or required by the Rules of Professional ConductRegulating The Florida
Bar or by law. However, none of the foregoing limits the requirement of
disclosure in subdivision (b). This disclosure is required to prevent a lawyer from
becoming an unwitting accomplice in the fraudulent acts of a client. See also
Scope.
The requirement of maintaining confidentiality of information relating to
representation applies to government lawyers who may disagree with the policy
goals that their representation is designed to advance.
Authorized disclosure
[No Change]
Disclosure adverse to client
The confidentiality rule is subject to limited exceptions. In becoming privy
to information about a client, a lawyer may foresee that the client intends serious
harm to another person. However, to the extent a lawyer is required or permitted
to disclose a client’s purposes, the client will be inhibited from revealing facts that
would enable the lawyer to counsel against a wrongful course of action. While the
public may be protected if full and open communication by the client is
encouraged, several situations must be distinguished.
- 31 -
First, the lawyer may not counsel or assist a client in conduct that is criminal
or fraudulent. See rule 4-1.2(d). Similarly, a lawyer has a duty under rule
4-3.3(a)(4) not to use false evidence. This duty is essentially a special instance of
the duty prescribed in rule 4-1.2(d) to avoid assisting a client in criminal or
fraudulent conduct.
Second, the lawyer may have been innocently involved in past conduct by
the client that was criminal or fraudulent. In such a situation the lawyer has not
violated rule 4-1.2(d), because to “counsel or assist” criminal or fraudulent conduct
requires knowing that the conduct is of that character.
Third, the lawyer may learn that a client intends prospective conduct that is
criminal. As stated in subdivision (b)(1), the lawyer shallmust reveal information
in order to prevent such consequences. It is admittedly difficult for a lawyer to
“know” when the criminal intent will actually be carried out, for the client may
have a change of mind.
Subdivision (b)(2) contemplates past acts on the part of a client that may
result in present or future consequences that may be avoided by disclosure of
otherwise confidential communications. Rule 4-1.6(b)(2) would now require the
attorneylawyer to disclose information reasonably necessary to prevent the future
death or substantial bodily harm to another, even though the act of the client has
been completed.
The lawyer’s exercise of discretion requires consideration of such factors as
the nature of the lawyer’s relationship with the client and with those who might be
injured by the client, the lawyer’s own involvement in the transaction, and factors
that may extenuate the conduct in question. Where practical the lawyer should
seek to persuade the client to take suitable action. In any case, a disclosure adverse
to the client’s interest should be no greater than the lawyer reasonably believes
necessary to the purpose.
Withdrawal
[No Change]
Dispute concerning lawyer’s conduct
[No Change]
Disclosures otherwise required or authorized
[No Change]
Former client
[No Change]
- 32 -
RULE 4-1.7 CONFLICT OF INTEREST; CURRENT CLIENTS
(a) Representing Adverse Interests. Except as provided in subdivision
(b), a lawyer shallmust not represent a client if:
(1) - (2) [No Change]
(b) Informed Consent. Notwithstanding the existence of a conflict of
interest under subdivision (a), a lawyer may represent a client if:
(1) - (4) [No Change]
(c) Explanation to Clients. When representation of multiple clients in a
single matter is undertaken, the consultation shallmust include an explanation of
the implications of the common representation and the advantages and risks
involved.
(d) Lawyers Related by Blood, Adoption, or Marriage. A lawyer related
by blood, adoption, or marriage to another lawyer as parent, child, sibling, or
spouse shallmust not represent a client in a representation directly adverse to a
person who the lawyer knows is represented by the other lawyer except upon
consent by the client after consultation regarding the relationshipwith the client’s
informed consent, confirmed in writing or clearly stated on the record at a hearing.
(e) [No Change]
Comment
Loyalty to a client
[No Change]
Consultation and consent
[No Change]
Lawyer’s interests
[No Change]
Conflicts in litigation
- 33 -
Subdivision (a)(1) prohibits representation of opposing parties in litigation.
Simultaneous representation of parties whose interests in litigation may conflict,
such as co-plaintiffs or co-defendants, is governed by subdivisions (a), (b), and (c).
An impermissible conflict may exist by reason of substantial discrepancy in the
parties’ testimony, incompatibility in positions in relation to an opposing party, or
the fact that there are substantially different possibilities of settlement of the claims
or liabilities in question. Such conflicts can arise in criminal cases as well as civil.
The potential for conflict of interest in representing multiple defendants in a
criminal case is so grave that ordinarily a lawyer should decline to represent more
than 1 co-defendant. On the other hand, common representation of persons having
similar interests is proper if the risk of adverse effect is minimal and the
requirements of subdivisions (b) and (c) are met.
Ordinarily, a lawyer may not act as advocate against a client the lawyer
represents in some other matter, even if the other matter is wholly unrelated.
However, there are circumstances in which a lawyer may act as advocate against a
client. For example, a lawyer representing an enterprise with diverse operations
may accept employment as an advocate against the enterprise in an unrelated
matter if doing so will not adversely affect the lawyer’s relationship with the
enterprise or conduct of the suit and if both clients consent upon consultation. By
the same token, government lawyers in some circumstances may represent
government employees in proceedings in which a government agency is the
opposing party. The propriety of concurrent representation can depend on the
nature of the litigation. For example, a suit charging fraud entails conflict to a
degree not involved in a suit for a declaratory judgment concerning statutory
interpretation.
A lawyer may represent parties having antagonistic positions on a legal
question that has arisen in different cases, unless representation of either client
would be adversely affected. Thus, it is ordinarily not improper to assert such
positions in cases pending in different trial courts, but it may be improper to do so
in cases pending at the same time in an appellate court.
Interest of person paying for a lawyer’s service
[No Change]
Other conflict situations
[No Change]
Conflict charged by an opposing party
[No Change]
- 34 -
Family relationships between lawyers
Rule 4-1.7(d) applies to related lawyers who are in different firms. Related
lawyers in the same firm are also governed by rules 4-1.9 and 4-1.10. The
disqualification stated in rule 4-1.7(d) is personal and is not imputed to members of
firms with whom the lawyers are associated.
The purpose of Rule 4-1.7(d) is to prohibit representation of adverse
interests, unless informed consent is given by the client, by a lawyer related to
another lawyer by blood, adoption, or marriage as a parent, child, sibling, or
spouse so as to include those with biological or adopted children and within
relations by marriage those who would be considered in-laws and stepchildren and
stepparents.
Representation of Insuredsinsureds
The unique tripartite relationship of insured, insurer, and lawyer can lead to
ambiguity as to whom a lawyer represents. In a particular case, the lawyer may
represent only the insured, with the insurer having the status of a non-client third
party payor of the lawyer’s fees. Alternatively, the lawyer may represent both as
dual clients, in the absence of a disqualifying conflict of interest, upon compliance
with applicable rules. Establishing clarity as to the role of the lawyer at the
inception of the representation avoids misunderstanding that may ethically
compromise the lawyer. This is a general duty of every lawyer undertaking
representation of a client, which is made specific in this context due to the desire to
minimize confusion and inconsistent expectations that may arise.
Consent confirmed in writing or stated on the record at a hearing
Subdivision (b) requires the lawyer to obtain the informed consent of the
client, confirmed in writing or clearly stated on the record at a hearing. With
regard to being confirmed in writing, such a writing may consist of a document
executed by the client or one that the lawyer promptly records and transmits to the
client following an oral consent. See terminology. If it is not feasible to obtain or
transmit the writing at the time the client gives informed consent, then the lawyer
must obtain or transmit it within a reasonable time thereafterafterwards. See
terminology. The requirement of a writing does not supplant the need in most
cases for the lawyer to talk with the client, to explain the risks and advantages, if
any, of representation burdened with a conflict of interest, as well as reasonably
available alternatives, and to afford the client a reasonable opportunity to consider
the risks and alternatives and to raise questions and concerns. Rather, the writing
is required in order to impress upon clients the seriousness of the decision the
client is being asked to make and to avoid disputes or ambiguities that might later
occur in the absence of a writing.
- 35 -
RULE 4-1.9 CONFLICT OF INTEREST; FORMER CLIENT
A lawyer who has formerly represented a client in a matter shallmust not
thereafterafterwards:
(a) – (c) [No Change]
Comment
After termination of a client-lawyer relationship, a lawyer may not represent
another client except in conformity with this rule. The principles in rule 4-1.7
determine whether the interests of the present and former client are adverse. Thus,
a lawyer could not properly seek to rescind on behalf of a new client a contract
drafted on behalf of the former client. So also a lawyer who has prosecuted an
accused person could not properly represent the accused in a subsequent civil
action against the government concerning the same transaction.
The scope of a “matter” for purposes of rule 4-1.9(a) may depend on the
facts of a particular situation or transaction. The lawyer’s involvement in a matter
can also be a question of degree. When a lawyer has been directly involved in a
specific transaction, subsequent representation of other clients with materially
adverse interests clearly is prohibited. On the other hand, a lawyer who recurrently
handled a type of problem for a former client is not precluded from later
representing another client in a wholly distinct problem of that type even though
the subsequent representation involves a position adverse to the prior client.
Similar considerations can apply to the reassignment of military lawyers between
defense and prosecution functions within the same military jurisdiction. The
underlying question is whether the lawyer was so involved in the matter that the
subsequent representation can be justly regarded as a changing of sides in the
matter in question.
Matters are “substantially related” for purposes of this rule if they involve
the same transaction or legal dispute, or if the current matter would involve the
lawyer attacking work that the lawyer performed for the former client. For
example, a lawyer who has previously represented a client in securing
environmental permits to build a shopping center would be precluded from
representing neighbors seeking to oppose rezoning of the property on the basis of
environmental considerations; however, the lawyer would not be precluded, on the
grounds of substantial relationship, from defending a tenant of the completed
shopping center in resisting eviction for nonpayment of rent.
- 36 -
Lawyers owe confidentiality obligations to former clients, and thus
information acquired by the lawyer in the course of representing a client may not
subsequently be used by the lawyer to the disadvantage of the client without the
former client’s consent. For example, a lawyer who has represented a
businessperson and learned extensive private financial information about that
person may not then represent that person’s spouse in seeking a divorce. However,
the fact that a lawyer has once served a client does not preclude the lawyer from
using generally known information about that client when later representing
another client. Information that has been widely disseminated by the media to the
public, or that typically would be obtained by any reasonably prudent lawyer who
had never represented the former client, should be considered generally known and
ordinarily will not be disqualifying. The essential question is whether, but for
having represented the former client, the lawyer would know or discover the
information.
Information acquired in a prior representation may have been rendered
obsolete by the passage of time. In the case of an organizational client, general
knowledge of the client’s policies and practices ordinarily will not preclude a
subsequent representation; on the other hand, knowledge of specific facts gained in
a prior representation that are relevant to the matter in question ordinarily will
preclude such a representation. A former client is not required to reveal the
confidential information learned by the lawyer in order to establish a substantial
risk that the lawyer has confidential information to use in the subsequent matter. A
conclusion about the possession of such information may be based on the nature of
the services the lawyer provided the former client and information that would in
ordinary practice be learned by a lawyer providing such services.
The provisions of this rule are for the protection of clients and can be waived
if the former client gives informed consent. See terminology.
With regard to an opposing party’s raising a question of conflict of interest,
see comment to rule 4-1.7. With regard to disqualification of a firm with which a
lawyer is associated, see rule 4-1.10.
RULE 4-1.10 IMPUTATION OF CONFLICTS OF INTEREST;
GENERAL RULE
(a) Imputed Disqualification of All Lawyers in Firm. While lawyers are
associated in a firm, none of them shallmay knowingly represent a client when any
1 of them practicing alone would be prohibited from doing so by rule 4-1.7 or 4-
1.9 except as provided elsewhere in this rule, or unless the prohibition is based on a
personal interest of the prohibited lawyer and does not present a significant risk of
- 37 -
materially limiting the representation of the client by the remaining lawyers in the
firm.
(b) – (e) [No Change]
Comment
Definition of “firm”
[No Change]
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 such inquiry, the burden of proof should rest upon the firm whose
disqualification is sought.
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.
- 38 -
Adverse positions
[No Change]
4-2. COUNSELOR
RULE 4-2.4 LAWYER SERVING AS THIRD-PARTY NEUTRAL
(a) [No Change]
(b) Communication With Unrepresented Parties. A lawyer serving as a
third-party neutral shallmust inform unrepresented parties that the lawyer is not
representing them. When the lawyer knows or reasonably should know that a
party does not understand the lawyer’s role in the matter, the lawyer shallmust
explain the difference between the lawyer’s role as a third-party neutral and a
lawyer’s role as one who represents a client.
Comment
Alternative dispute resolution has become a substantial part of the civil
justice system. Aside from representing clients in dispute-resolution processes,
lawyers often serve as third-party neutrals. A third-party neutral is a person, such
as a mediator, arbitrator, conciliator, or evaluator, who assists the parties,
represented or unrepresented, in the resolution of a dispute or in the arrangement of
a transaction. Whether a third-party neutral serves primarily as a facilitator,
evaluator, or decision-maker depends on the particular process that is either
selected by the parties or mandated by a court.
The role of a third-party neutral is not unique to lawyers, although, in some
court-connected contexts, only lawyers are allowed to serve in this role or to
handle certain types of cases. In performing this role, the lawyer may be subject to
court rules or other law that apply either to third-party neutrals generally or to
lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to
various codes of ethics, such as the Code of Ethics for Arbitration in Commercial
Disputes prepared by a joint committee of the American Bar Association and the
American Arbitration Association, or the Model Standards of Conduct for
Mediators jointly prepared by the American Bar Association, the American
Arbitration Association and the Society of Professionals in Dispute
ResolutionAssociation for Conflict Resolution. A Florida Bar member who is a
certified or court-appointed mediator is governed by the applicable law and rules
relating to certified or court-appointed mediators.
Unlike nonlawyers who serve as third-party neutrals, lawyers serving in this
role may experience unique problems as a result of differences between the role of
- 39 -
a third-party neutral and a lawyer’s service as a client representative. The potential
for confusion is significant when the parties are unrepresented in the process.
Thus, subdivision (b) requires a lawyer-neutral to inform unrepresented parties that
the lawyer is not representing them. For some parties, particularly parties who
frequently use dispute resolution processes, this information will be sufficient. For
others, particularly those who are using the process for the first time, more
information will be required. Where appropriate, the lawyer should inform
unrepresented parties of the important differences between the lawyer’s role as
third-party neutral and a lawyer’s role as a client representative, including the
inapplicability of the attorney-client evidentiary privilege. The extent of disclosure
required under this subdivision will depend on the particular parties involved and
the subject matter of the proceeding, as well as the particular features of the dispute
resolution process selected.
A lawyer who serves as a third-party neutral subsequently may be asked to
serve as a lawyer representing a client in the same matter. The conflicts of interest
that arise for both the individual lawyer and the lawyer’s law firm are addressed in
rule 4-1.12.
4-3. ADVOCATE
RULE 4-3.4 FAIRNESS TO OPPOSING PARTY AND COUNSEL
A lawyer shallmust not:
(a) [No Change]
(b) fabricate evidence, counsel or assist a witness to testify falsely, or offer
an inducement to a witness, except a lawyer may pay a witness reasonable
expenses incurred by the witness in attending or testifying at proceedings; a
reasonable, noncontingent fee for professional services of an expert witness; and
reasonable compensation to reimburse a witness for the loss of compensation
incurred by reason oftime spent preparing for, attending, or testifying at
proceedings;
(c) – (h) [No Change]
Comment
The procedure of the adversary system contemplates that the evidence in a
case is to be marshalled competitively by the contending parties. Fair competition
in the adversary system is secured by prohibitions against destruction or
concealment of evidence, improperly influencing witnesses, obstructive tactics in
discovery procedure, and the like.
- 40 -
Documents and other items of evidence are often essential to establish a
claim or defense. Subject to evidentiary privileges, the right of an opposing party,
including the government, to obtain evidence through discovery or subpoena is an
important procedural right. The exercise of that right can be frustrated if relevant
material is altered, concealed, or destroyed. Applicable law in many jurisdictions
makes it an offense to destroy material for the purpose of impairing its availability
in a pending proceeding or one whose commencement can be foreseen. Falsifying
evidence is also generally a criminal offense. Subdivision (a) applies to
evidentiary material generally, including computerized information.
With regard to subdivision (b), it is not improper to pay a witness’s expenses
or to compensate an expert witness on terms permitted by law. The common law
rule in most jurisdictions is that it is improper to pay an occurrence witness any fee
for testifying and that it is improper to pay an expert witness a contingent fee.
Previously, subdivision (e) also proscribed statements about the credibility
of witnesses. However, in 2000, the Supreme Court of Florida entered an opinion
in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000),
whereinin which the court allowed counsel in closing argument to call a witness a
“liar” or to state that the witness “lied.”
There the court stated: “First, it is not improper for counsel to state during
closing argument that a witness ‘lied’ or is a ‘liar,’ provided such characterizations
are supported by the record.” Murphy, id., at 1028. Members of the bar are
advised to check the status of the law in this area.
Subdivision (f) permits a lawyer to advise employees of a client to refrain
from giving information to another party, for the employees may identify their
interests with those of the client. See also rule 4-4.2.
4-4. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
RULE 4-4.2 COMMUNICATION WITH PERSON REPRESENTED BY
COUNSEL
(a) In representing a client, a lawyer shallmust not communicate about the
subject of the representation with a person the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has the consent of the other lawyer.
Notwithstanding the foregoing, an attorneya lawyer may, without such prior
consent, communicate with another’s client in order to meet the requirements of
any court rule, statute or contract requiring notice or service of process directly on
an adverse partya person, in which event the communication shall beis strictly
restricted to that required by the court rule, statute or contract, and a copy
shallmust be provided to the adverse party’sperson’s attorneylawyer.
- 41 -
(b) [No Change]
Comment
[No Change]
4-6. PUBLIC SERVICE
RULE 4-6.5 VOLUNTARY PRO BONO PLAN
(a) Purpose. The purpose of the voluntary pro bono attorney plan is to
increase the availability of legal service to the poor. The following operating plan
has as its goal the improvement of the availability of legal services to the poor and
the expansion of present pro bono legal service programs. The following operating
plan shall bewas implemented to accomplish this purpose and goal.
(b) Standing Committee on Pro Bono Legal Service. The president-elect
of The Florida Bar shall appointis responsible for appointing a standing committee
on pro bono legal service to the poor.
(1) Composition of the Standing Committee. The standing committee shall
be composed ofconsists of no more than 25 members and include, but not be
limited to:
(A) 5 members of the board of governors of The Florida Bar, 1 of
whom shall beis the chair or a member of the access to the legal system
committee of the board of governors;
(B) – (H) [No Change]
(2) Responsibilities of the Standing Committee. The standing committee
shallwill:
(A) identify, encourage, support, and assist statewide and local pro
bono projects and activities;
(B) receive reports from circuit committees submitted on
standardized forms developed by the standing committee;
(BC) review and evaluate circuit court pro bono plans;
(CD) beginning in the first year in which individual attorney pro bono
reports are due, submit an annual report as to the activities and results of
the pro bono plan to the board of governors of The Florida Bar, The Florida
Bar Foundation, and to the Supreme Court of Florida;
(DE) present to the board of governors of The Florida Bar and to the
Supreme Court of Florida any suggested changes or modifications to the pro
bono rules.
(c) Circuit Pro Bono Committees. There shallwill be 1 circuit pro bono
committee in each of the judicial circuits of Florida. In each judicial circuit the
- 42 -
chief judge of the circuit, or the chief judge’s designee, shall appoint and convene
the initial circuit pro bono committee and the committee shallwill appoint its chair.
(1) Composition of Circuit Court Pro Bono Committee. Each circuit pro
bono committee shall beis composed of:
(A) [No Change]
(B) to the extent feasible, 1 or more representatives from each
voluntary bar association, including each federal bar association,
recognized by The Florida Bar and 1 representative from each pro bono
and legal assistance provider in the circuit, which representatives shall
beare nominated by the association or provider; and
(C) at least 1 public member and at least 1 client-eligible member,
which members shall beare nominated by the other members of the circuit
pro bono committee.
Governance and terms of service shall beare determined by each circuit pro
bono committee. Replacement and succession members shall beare appointed by
the chief judge of the circuit or the chief judge’s designee, upon nomination by the
association, the provider organization or the circuit pro bono committee, as the
case may be, as deemed appropriate or necessary to ensure an active circuit pro
bono committee in each circuit.
(2) Responsibilities of Circuit Pro Bono Committee. The circuit pro bono
committee shallwill:
(A) – (C) [No Change]
(D) to the extent possible,use current legal assistance and pro bono
programs in each circuit shall be utilized, to the extent possible, to
implement and operate circuit pro bono plans and provide the necessary
coordination and administrative support for the circuit pro bono committee;
(E) to encourage more lawyers to participate in pro bono activities,
each circuit pro bono plan should provide by preparing a plan that provides
for various support and educational services for participating pro bono
attorneys, which, to the extent possible, should include:
(i) providing intake, screening, and referral of prospective clients;
(ii) [No Change]
(iii) providingresources offor litigation and out-of-pocket expenses
for pro bono cases;
- 43 -
(iv) providing legal education and training for pro bono attorneys
in specialized areas of law useful in providing pro bono legal service;
(v) providing the availability of consultation with attorneys who
have expertise in areas of law with respect to which a volunteer lawyer
is providing pro bono legal service;
(vi) providing malpractice insurance for volunteer pro bono
lawyers with respect to their pro bono legal service;
(vii) establishing procedures to ensure adequate monitoring and
follow-up for assigned cases and to measure client satisfaction; and
(viii) [No Change]
(d) [No Change]
4-8. MAINTAINING THE INTEGRITY OF THE PROFESSION
RULE 4-8.6 AUTHORIZED BUSINESS ENTITIES
(a) – (b) [No Change]
(c) Qualifications of Managers, Directors and Officers. No person
shallmay serve as a partner, manager, director or executive officer of an authorized
business entity andthat is engaged in the practice of law in Florida unless such
person is legally qualified to render legal services in this state. For purposes of this
rule the term “executive officer” shall includes the president, vice-president, or any
other officer who performs a policy-making function.
(d) Violation of Statute or Rule. A lawyer who, while acting as a
shareholder, member, officer, director, partner, proprietor, manager, agent, or
employee of an authorized business entity and engaged in the practice of law in
Florida, violates or sanctions the violation of the authorized business entity statutes
or the Rules Regulating The Florida Bar shallwill be subject to disciplinary action.
(e) Disqualification of Shareholder, Member, Proprietor, or Partner;
Severance of Financial Interests. Whenever a shareholder of a professional
service corporation, a member of a professional limited liability company,
proprietor, or partner in a limited liability partnership becomes legally disqualified
to render legal services in this state, said shareholder, member, proprietor, or
partner shallmust sever all employment with and financial interests in such
authorized business entity immediately. For purposes of this rule the term “legally
disqualified” shalldoes not include suspension from the practice of law for a period
of time less than 91 days. Severance of employment and financial interests
- 44 -
required by this rule shallwill not preclude the shareholder, member, proprietor, or
partner from receiving compensation based on legal fees generated for legal
services performed during the time when the shareholder, member, proprietor, or
partner was legally qualified to render legal services in this state. This provision
shallwill not prohibit employment of a legally disqualified shareholder, member,
proprietor, or partner in a position that does not render legal service nor payment to
an existing profit sharing or pension plan to the extent permitted in rules 3-6.1 and
4-5.4(a)(3), or as required by applicable law.
(f) Cessation of Legal Services. Whenever all shareholders of a
professional service corporation, or all members of a professional limited liability
company, the proprietor of a solo practice, or all partners in a limited liability
partnership become legally disqualified to render legal services in this state, the
authorized business entity shallmust cease the rendition of legal services in Florida.
(g) Application of Statutory Provisions. Unless otherwise provided in
this rule, each shareholder, member, proprietor, or partner of an authorized
business entity shallwill possess all rights and benefits and shallwill be subject to
all duties applicable to such shareholder, member, proprietor, or partner provided
by the statutes pursuant to which the authorized business entity was organized or
qualified.
Comment
[No Change]
Limitation on rendering legal services
[No Change]
Employment by and financial interests in an authorized business entity
[No Change]
Profit sharing or pension plans
To the extent that applicable law requires continued payment to existing
profit sharing or pension plans, nothing in this rule or the statute may abridge such
payments. However, if permitted under applicable law the amount paid to the plan
for a legally disqualified shareholder, member, proprietor, or partner shallwill not
include payments based on legal services rendered while the legally disqualified
shareholder, member, proprietor, or partner was not qualified to render legal
services
Interstate Practicepractice
- 45 -
This rule permits members of The Florida Bar to engage in the practice of
law with lawyers licensed to practice elsewhere in an authorized business entity
organized under the laws of another jurisdiction and qualified under the laws of
Florida (or vice-versa), but nothing hereinin this rule is intended to affect the
ability of non-members of The Florida Bar to practice law in Florida. See, e.g.,
Fla. Bar v. Savitt, 363 So. 2d 559 (Fla. 1978).
The terms qualified and legally disqualified are imported from the
Professional Service Corporation Act (Chapter 621, Florida Statutes).
CHAPTER 5. RULES REGULATING TRUST ACCOUNTS
5-1. GENERALLY
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 wherein this special trust 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 such special trust account. These rules
shall apply to matters whereinin which a choice of laws analysis indicates that such
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 shallmust be maintained:
(1) – (2) [No Change]
(3) original canceled checks or clearly legible copies of original canceled
checks for all funds disbursed from the trust account, all of which must:
(A) be numbered consecutively,;
(B) include all endorsements and all other data and tracking
information,; and
(C) [No Change]
- 46 -
(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”).
(56) 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]
(67) a separate file or ledger with an individual card or page for each client
or matter, showing all individual receipts, disbursements, or transfers and any
unexpended balance, and containing:
(A) – (D) [No Change]
(78) all bank or savings and loan association statements for all trust
accounts.
(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) of the lawyer(s) who sign trust account
checks for the law firm, the name(s) of the lawyer(s) who are responsible for
reconciliation of the law firm’s trust account(s) monthly and annually and the
name(s) of the lawyer(s) who are 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 lawyer(s) signing trust
account checks and/or 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
- 47 -
report the noncompliance to staff counsel for the bar if required to do so
pursuant to the reporting requirements of chapter 4.
(cd) Minimum Trust Accounting Procedures. The minimum trust
accounting procedures that shallmust be followed by all members of The Florida
Bar (when a choice of laws analysis indicates that the laws of Florida apply) who
receive or disburse trust money or property are as follows:
(1) The lawyer shall cause to be madeis required to make monthly:
(A) [No Change]
(B) a comparison between the total of the reconciled balances of all
trust accounts and the total of the trust ledger cards or pages, together with
specific descriptions of any differences between the 2 totals and reasons
thereforfor the differences.
(2) At least annually, theThe lawyer shallis required to prepare an annual
detailed listing identifying the balance of the unexpended trust money held for
each client or matter.
(3) The above reconciliations, comparisons, and listings shallmust be
retained for at least 6 years.
(4) The lawyer or law firm shallmust authorize, at the time the account is
opened, and request any bank or savings and loan association where the lawyer
is a signatory on a trust account to notify Staff Counsel, The Florida Bar, 651
East Jefferson Street, Tallahassee, Florida 32399-2300, in the event the account
is overdrawn or any trust check is dishonored or returned due to insufficient
funds or uncollected funds, absent bank error.
(5) The lawyer shallmust 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.
(de) Electronic Wire Transfers. Authorized electronic transfers from a
lawyer or law firm’s trust account shall beare limited to:
(1) – (4) [No Change]
(ef) Record Retention. A lawyer or law firm that receives and disburses
client or third-party funds or property shallmust maintain the records required by
this chapter for 6 years subsequent to the final conclusion of each representation in
which the trust funds or property were received.
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(fg) Audits. Any of the following shall beare cause for The Florida Bar to
order an audit of a trust account:
(1) – (9) [No Change]
(gh) Cost of Audit. Audits conducted in any of the circumstances
enumerated in this rule shallwill 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 shallwill 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 theretoin 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.
(hi) Failure to Comply With Subpoena for Trust Accounting Records.
Failure of a member to timely produce trust accounting records shallwill be
considered as a matter of contempt and process in the manner provided in
subdivision (d) and (f) of rule 3-7.11, Rules Regulating The Florida Bar.
CHAPTER 10. RULES GOVERNING THE INVESTIGATION AND
PROSECUTION OF THE UNLICENSED PRACTICE OF LAW
SUBCHAPTER 10-3 STANDING COMMITTEE
RULE 10-3.1 GENERALLY
(a) Appointment and Terms. TheMembers of the standing committee on
UPL areshall be appointed by the court onSupreme Court of Florida, with advice
of the board of governorsfrom the Board of Governors of The Florida Bar and
shall. The committee must consist of 3725 members, 18 of whom shall
beincluding 12 nonlawyers. The board of governors is delegated the authority to
appoints a chair and at least 1 vice-chair of the standing committee, both of whom,
who may be nonlawyers. One-third of the members of the standing committee
shall constitute a quorum. All appointments to the standing committee shall beare
for a 3-year term of 3 years. NoA member shall be appointed tomay not serve
more than 2 full consecutive terms. The membersOne-third of the members of the
standing committee constitutes a quorum. Members of the standing committee
shall not beare not subject to removal by the court during their terms of office
except for cause. Cause shallmay include unexcused failures to attendabsences
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from scheduled meetings, the number of which shall be set forthto be set by the
standing committee in an attendance policy.
(b) Recusal. NoA member of the standing committee shallmust not
perform any standing committee function when that member:
(1) – (4) [No Change]
Upon notice of any of the above prohibitions the affected mMembers should
recuse themselves from participation in further proceedings on notice of any of the
prohibitions. The standing committee chair shall have the power tomay disqualify
any member from any proceeding in which any of the above prohibitions exists
and is stated of. The chair must state the prohibition on the record or in writing in
thea file by the chair.
10-7. PROCEEDINGS BEFORE A REFEREE
RULE 10-7.2 PROCEEDINGS FOR INDIRECT CRIMINAL CONTEMPT
(a) Petitions for Indirect Criminal Contempt. Nothing set forth herein
shall be construed to prohibit or limitwithin 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) 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, 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 this court for
the unlicensed practice of law or for the failure to pay restitution as ordered.
The referee shallmust be a circuit judge of the state of Florida. The order
shallmust specify the time and place of the hearing, and a reasonable time
shallmust be allowed for preparation of the defense after service of the order on
the respondent.
(2) The respondent, personally or by counsel, may move to dismiss the
order to show cause, move for a statement of particulars, or answer such order
by way of explanation or defense. All motions and the answer shallmust be in
writing. A respondent’s omission to file motions or answer shallwill not be
deemed as an admission of guilt of the contempt charged.
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(b) Indigency of Respondent. Any respondent who is determined to be
indigent by the referee shall beis entitled to the appointment of counsel.
(1) Affidavit. A respondent asserting indigency shallmust file with the
referee a completed affidavit containing the statutory financial information
required to be submitted to the clerk of court when determining indigent status
and stating that the affidavit is signed under oath and under penalty of perjury.
(2) Determination. After reviewing the affidavit and questioning the
respondent, the referee shallmust make one of the following determinations:
the respondent is indigent or the respondent is not indigent.
In making this determination, the referee shallmust 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
shallmust be in accordance with the following:
(1) Venue for the hearing before the referee shallmust be in the county
where the respondent resides or where the alleged offense was committed,
whichever shall beis designated by the court.
(2) 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 shallwill be admitted to
bail in the manner provided by law in criminal cases.
(3) The respondent shallwill be arraigned and enter a plea at the time of
the hearing before the referee, or prior thereto upon request. A subsequent
hearing to determine the guilt or innocence of the respondent shallwill 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 shallwill be accorded the respondent. The Florida Bar, which
shallwill act as prosecuting authority, must prove guilt of the respondent
beyond a reasonable doubt.
(4) Subpoenas for the attendance of witnesses and the production of
documentary evidence shallwill be issued in the name of the court by the
referee upon request of a party. Failure or refusal to comply with any
subpoena shall beis 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 said refusal were a contempt of that court.
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(5) The referee shallwill hear all issues of law and fact and all evidence
and testimony presented shallwill be transcribed.
(6) At the conclusion of the hearing, the referee shallwill sign and enter of
record a judgment of guilty or not guilty. There should be included in a
judgment of guilty a recital of the facts constituting the contempt of which the
respondent has been found and adjudicated guilty, and the costs of prosecution,
including investigative costs and restitution, if any, shallwill be included and
entered in the judgment rendered against the respondent. The amount of
restitution shallmust be specifically set forth in the judgment and shallmust not
exceed the amount paid to respondent by complainant(s). The judgment
shallmust also state the name of the complainant(s) to whom restitution is to be
made, the amount of restitution to be made, and the date by which it shall be
completed. The referee shall havehas discretion over the timing of payments,
over how those payments are to be distributed to multiple complainant(s), and
whether restitution shallwill bear interest at the legal rate provided for
judgments in this state. In determining the amount of restitution to be paid to
complainant(s), the referee shallwill consider 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
shall precludes an individual from seeking redress through civil proceedings to
recover fees or other damages.
(7) Prior to the pronouncement of a recommended sentence upon a
judgment of guilty, the referee shallwill inform the respondent of the
accusation and judgment and afford the opportunity to present evidence of
mitigating circumstances. The recommended sentence shallwill be pronounced
in open court and in the presence of the respondent.
(d) Record.
(1) Contents. The record shallmust include all items properly filed in the
cause including pleadings, recorded testimony, if transcribed, exhibits in
evidence, and the report of the referee.
(2) Preparation and Filing. The referee, with the assistance of bar
counsel, shallmust prepare the record, certify that the record is complete, serve
a copy of the index of the record on the respondent and The Florida Bar, and
file the record with the office of the clerk of the Supreme Court of Florida.
(3) [No Change]
(e) Review by the Supreme Court of Florida. The judgment and
recommended sentence, upon a finding of “guilty,” together with the entire record
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of proceedings shallmust then be forwarded to this courtthe Supreme Court of
Florida for approval, modification, or rejection based upon the law. The
respondent may file objections, together with a supporting brief or memorandum
of law, to the referee’s judgment and recommended 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 seeks 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.
The Florida Bar may file a responsive brief or memorandum of law within
20 days after service of respondent’s brief or memorandum of law. The
respondent may file a reply brief or memorandum of law within 20 days after
service of The Florida Bar’s responsive brief or memorandum of law.
(f) Fine or Punishment. The punishment for an indirect criminal contempt
under this chapter shall be bywill be a fine not to exceed $2500, imprisonment of
up to 5 months, or both.
(g) [No Change]
CHAPTER 12. EMERITUS ATTORNEYS PRO BONO PARTICIPATION
PROGRAM
12-1. GENERALLY
RULE 12-1.2 DEFINITIONS
(a) Emeritus Attorney. An “emeritus attorney” is any person, retired from
the active practice of law, who is or was admitted to practice law before the highest
court ofwho is retired from the practice of law in Florida or any other state or
territory of the United States or the District of Columbia, or is an authorized house
counsel certified by the Supreme Court of Florida and who:
(1) has beenwas engaged in the active practice of law for a minimum of 10
out of the 15 years immediately preceding the application to participate in the
emeritus program, except that this requirement does not apply to authorized
house counsel certified under chapter 17 of these rules;
(2) has beenwas a member in good standing of The Florida Bar or the
entity governing the practice of law of any other state, territory, or the District
of Columbia and has not been disciplined for professional misconduct by the
bar or courts of any jurisdiction within the past 15 years;
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(3) – (4) [No Change]
(5) neither asks for nor receives compensation of any kind for the legal
services to be rendered hereunderunder this rule; and
(6) [No Change]
(b) Approved Legal Aid Organization. An “approved legal aid
organization” for the purposes of this chapter is a not-for-profit legal aid
organization that is approved by the Supreme Court of Florida as set forth herein.
A legal aid organization seeking approval from the Supreme Court of Florida for
the purposes of this chapter shallmust file a petition with the clerk of the Supreme
Court of Florida certifying that it is a not-for-profit organization and reciting with
specificity:
(1) – (6) [No Change]
(c) Supervising Attorney. A “supervising attorney” as used hereinin this
chapter is a member in good standing of The Florida Bar who directs and
supervises an emeritus attorney engaged in activities permitted by this chapter.
The supervising attorney must:
(1) – (2) [No Change]
RULE 12-1.3 ACTIVITIES
(a) Permissible Activities. An emeritus attorney, in association with an
approved legal aid organization and under the supervision of a supervising
attorney, may perform the following activities:
(1) The emeritus attorney may appear in any court or before any
administrative tribunal in this state on behalf of a client of an approved legal
aid organization if the person on whose behalf the emeritus attorney is
appearing has consented in writing to that appearance and a supervising
attorney has given written approval for that appearance. The written consent
and approval shallmust be filed in the record of each case and shall be brought
to the attention of a judge of the court or the presiding officer of the
administrative tribunal.
(2) The emeritus attorney may prepare pleadings and other documents to
be filed in any court or before any administrative tribunal in this state in any
matter in which the emeritus attorney is involved. Such pleadings also shall be
signed by the supervising attorney. The supervising lawyer must sign all
documents filed with the court.
(3) [No Change]
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(b) [No Change]
RULE 12-1.4 SUPERVISION AND LIMITATIONS
(a) [No Change]
(b) Representation of Bar Membership Status. Emeritus attorneys
permitted to perform services under this chapter are not, and shallmust not
represent themselves to be, active members of The Florida Bar licensed to practice
law in this state.
(c) Payment of Expenses and Award of Fees. The prohibition against
compensation for the emeritus attorney contained in rule 12-1.2(a)(5) shallwill not
prevent the approved legal aid organization from reimbursing the emeritus attorney
for actual expenses incurred while rendering approved services hereunder nor shall
it. It does not prevent the approved legal aid organization from making such
chargescharging for its services as it may otherwise properly charge. The
approved legal aid organization shallwill be entitled to receive all court-awarded
attorneys’ fees for any representation rendered by the emeritus attorney.
RULE 12-1.5 CERTIFICATION
Permission to Perform Services. Permission for an An emeritus attorney
seeking to performprovide pro bono legal services under this chapter shall become
effective upon filing with andmust obtain approval byfrom the cClerk of the
Supreme Court of Florida ofby filing all of the following certificates:
(a) a certification bycertificate from an approved legal aid organization
stating that the emeritus attorney is currently associated with that legal aid
organization and that an attorneya Florida Bar member employed by or
participating as a volunteer with that organization will assume the required duties
of the supervising attorney required hereunderlawyer;
(b) a certificate from the highest court or agency in theany state, territory, or
district in which the emeritus attorney previously has been licensed to practice law,
certifying that the emeritus attorney has fulfilled the requirements of active bar
membership and has a clear disciplinary record as required by rule 12-1.2(a)(2)has
not been disciplined for professional misconduct by the bar or courts of that
jurisdiction within the past 15 years. An authorized house counsel certified by the
Supreme Court of Florida under chapter 17 of these rules need not provide this
certificate; and
(c) a sworn statement by the emeritus attorney that the emeritus attorney:
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(1) has read and is familiar withwill abide by the Rules of Professional
Conduct as adopted by the Supreme Court of Florida and will abide by the
provisions thereof;
(2) submits to the jurisdiction of the Supreme Court of Florida for
disciplinary purposes, as defined by thechapter 3, Rules of Discipline, and by
rules 12-1.2(a)(4) and 12-1.7, R. Regulating Fla. Bar; and
(3) will neither ask for nor receive compensation of any kind for the legal
services authorized hereunderby this rule.
RULE 12-1.6 WITHDRAWAL OF CERTIFICATION
(a) Withdrawal of Permission to Perform Services. Permission to
perform services under this chapter shall cease immediately upon the filing with
the clerk of the Supreme Court of Florida of a notice either:The emeritus attorney
must immediately cease performing legal services if:
(1) by the approved legal aid organization statingfiles a statement with the
Clerk of the Supreme Court of Florida that:
(A) the emeritus attorney has ceased to be associated with the
organization, which. This notice must be filed within 5 days after such
association has ceased; or
(B) certification of such attorney is withdrawn. An approved legal
aid organization may withdraw certification at any time and it is not
necessary that the notice state the cause for such withdrawal.
AThe legal aid organization must mail a copy of the notice filed with the clerk
of the Supreme Court of Florida shall be mailed by the organization to the
emeritus attorney concerned; or
(2) by the Supreme Court of Florida, in its discretion, at any time, stating
thatrevokes permission for the emeritus attorney to perform pro bono services
under this chapter has been revoked. A copy of such notice shall be mailed by
the clerkThe Clerk of the Supreme Court of Florida must mail a copy of the
statement to the emeritus attorney involved and to the approved legal aid
organization by which the emeritus attorney had been certified.
(3) The Florida Bar files a statement with the Supreme Court of Florida
that the individual is no longer an authorized house counsel. The Florida Bar
must mail a copy of the statement to the emeritus attorney involved.
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(b) Notice of Withdrawal. If an emeritus attorney’s certification is
withdrawn for any reason, the supervising attorney shallmust immediately file a
notice of such actionthe withdrawal in the official file of each matter pending
before any court or tribunal in which the emeritus attorney was involved.
RULE 12-1.7 DISCIPLINE
In addition to any appropriate proceedings and discipline that may be
imposed by theThe Supreme Court of Florida may impose appropriate proceedings
and discipline under the Rules of Discipline or the Rules of Professional Conduct,
the emeritus attorney shall be subject to the following disciplinary measures:. In
addition, the Supreme Court of Florida or the approved legal aid organization may,
with or without cause, withdraw certification and (a) the presiding judge or
hearing officer for any matter in which the emeritus attorney has participated may
hold the emeritus attorney in civil contempt for any failure to abide by suchthe
tribunal’s orders; and
(b) the Supreme Court of Florida or the approved legal aid organization
may, at any time, with or without cause, withdraw certification hereunder.
CHAPTER 14. GRIEVANCE MEDIATION AND FEE ARBITRATION
14-1. ESTABLISHMENT
RULE 14-1.2 JURISDICTION
(a) Fee Arbitration. The program shall havehas jurisdiction to resolve
disputes between members of The Florida Bar or between a member of The Florida
Bar and a client or clients over a fee paid, charged, or claimed for legal services
rendered by a member of The Florida Bar when the parties to the dispute agree to
arbitrate under the program either by written contract that complies with the
requirements of subdivision (i) of rule 4-1.5 or by a request for arbitration signed
by all parties, or as a condition of probation or as a part of a discipline sanction as
authorized elsewhere in these Rules Regulating The Florida Bar. Jurisdiction shall
beis limited to matters in which:
(1) [No Change]
(2) the amount of attorneys’ fees in controversy is $100,000 or less; and
(32) it is estimated by all parties that all the evidence bearing on the
disputed issues of fact may be heard in 8 hours or less.
The program shalldoes not have jurisdiction to resolve disputes involving
matters in which a court has taken jurisdiction to determine and award a reasonable
- 57 -
fee to a party or that involve fees charged that constitute a violation of the Rules
Regulating The Florida Bar, unless specifically referred to the program by the
court or by bar counsel.
The program shall havehas authority to decline jurisdiction to resolve any
particular dispute by reason of its complexity and protracted hearing
characteristics.
(b) Grievance Mediation. The program shall havehas jurisdiction to
mediate the issues in a disciplinary file referred to the program in which the public
interest is satisfied by the resolution of the private rights of the parties to the
mediation. The program shalldoes not have jurisdiction to resolve the issues in a
disciplinary file if any issue involved in that file must remain for resolution within
the disciplinary process.
CHAPTER 17. AUTHORIZED HOUSE COUNSEL RULE
17-1. GENERALLY
RULE 17-1.3 ACTIVITIES
(a) Authorized Activities. An authorized house counsel, as an employee of
a business organization, may provide legal services in the state of Florida to the
business organization for which a registration pursuant to rule 17-1.4 is effective,
provided, however, that such. Such activities shall beare limited to:
(1) – (2) [No Change]
(3) representation of the business organization in its dealings with any
administrative agency or commission having jurisdiction; provided however,
authorized house counsel shall not be permitted tomay not make appearances
as counsel in any court, administrative tribunal, agency, or commission situated
in the state of Florida unless the rules governing such court or body shall
otherwise authorize the appearance, or the attorney is specially admitted by
such court or body in a case.;
(4) providing pro bono legal services under chapter 12 of these rules if
certified as an emeritus attorney.
(b) Disclosure. In any communication with individuals/ or organizations
outside of the business organization, authorized house counsel shallmust disclose
that they are not licensed to practice law in the state of Florida. If the
communication is in writing, authorized house counsel shallmust disclose in
writing the name of the business organization, their title or function, and that they
are not licensed to practice law in the state of Florida. For example, the disclosure
may state “J. Doe, XYZ Corporation, Authorized House Counsel, member
…..(name of other state bar).…. only or not a member of The Florida Bar.” In
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performing activities under this subdivision, authorized house counsel shallmay
not represent themselves to beas members of The Florida Bar or licensed to
practice law in this state.
(c) Limitation on Representation. In no event shall thewill permitted
activities permitted hereunderinclude the individual or personal representation of
any shareholder, owner, partner, officer, employee, servant, or agent in any matter
or transaction or the giving of advice therefor unless otherwise permitted or
authorized by law, code, or rule or as may be permittedallowed by subdivision 17-
1.3(a) of this rule.
(d) Opinions to Third Parties. An authorized house counsel shallmay not
express or render a legal judgment or opinion to be relied upon by any person or
party other than in the course ofwhen representing the authorized house counsel’s
representation of the business organization in which the authorized house counsel
is employedemployer.
CHAPTER 20. FLORIDA REGISTERED PARALEGAL PROGRAM
20-2. DEFINITIONS
RULE 20-2.1 GENERALLY
For purposes of this chapter, the following terms shall have the following
meaning:
(a) – (b) [No Change]
(c) Paralegal Work and Paralegal Work Experience. Paralegal work and
paralegal work experience are specifically delegated substantive legal work
performed by a person with education, training, or work experience under the
direction and supervision of a member of The Florida Bar for which a member of
The Florida Bar is responsible. In order to qualify as paralegal work or paralegal
work experience for purposes of meeting the eligibility and renewal requirements
set forth herein, the paralegal must primarily perform paralegal work and the work
must be continuous and recent. Recent paralegal work for the purposes of meeting
the eligibility and renewal requirements set forth herein means work performed
during 3 of the previous 5 years in connection with an initial registration, and
during the preceding year in the case of a registration renewal. Time spent
performing clerical work is specifically excluded.
(d) Approved Paralegal Program. An approved paralegal program is a
program approved by the American Bar Association (“ABA”) or a program that is
in substantial compliance with the ABA guidelines by being an institutional
member of the American Association for Paralegal Education (AAfPE) and
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accredited by a nationally recognized accrediting agency approved by the United
States Department of Education.
(e) Employing or Supervising AttorneyLawyer. An employing or
supervising attorneylawyer is the attorneylawyer having direct supervision over the
work product of the paralegal or Florida Registered Paralegal.
(f) – (j) [No Change]
20-3. ELIGIBILITY REQUIREMENTS
RULE 20-3.1 REQUIREMENTS FOR REGISTRATION
In order to be a Florida Registered Paralegal under this chapter, an
individual must meet 1 of the following requirements.
(a) – (b) [No Change]
(c) Grandfathering Reapplication. A person who does not meet the
requirements of (a) or (b) may become a Florida Registered Paralegal by providing
attestation from an employing or supervising attorney(s) that the person has
paralegal work experience as defined elsewhere in these rules for 5 of the 8 years
immediately preceding the date of such attestation. Any such attestation must be
received by The Florida Bar not later than 3 years after the effective date of this
chapter. A paralegal who was registered under the grandfathering provision on or
prior to March 1, 2011, who resigns or whose registration is revoked may reapply
based on work experience alone. The paralegal must provide work experience as
defined elsewhere in these rules for 5 of the 8 years immediately preceding the
date of reapplication.
20-4. REGISTRATION
RULE 20-4.1 GENERALLY
The following shallmust be filed with The Florida Bar by an individual
seeking to be registered as a Florida Registered Paralegal:
(a) Educational, Certification, or Experience Requirement.
(1) evidence that the individual has satisfied the requirements of rule 20-
3.1(a) by supplying evidence of the degree and attestation from the employing
or supervising attorneylawyer(s) showing that the individual has the
appropriate paralegal work experience; or
(2) a certificate showing that the individual has obtained 1 of the
certifications set forth in rule 20-3.1(b) and attestation from the employing or
- 60 -
supervising lawyer(s) showing that the individual is currently primarily
performing paralegal work.; or
(3) attestation from the employing or supervising attorney(s) that the
individual has met the requirements of rule 20-3.1(c).
(b) – (c) [No Change]
(d) Review by The Florida Bar. Upon receipt of the items set forth in
subdivision 20-4.1(a)-(c), The Florida Bar shallwill review the items for
compliance with this chapter. Any incomplete submissions will be returned. If the
individual meets all of the requirements of this chapter, the individual shallwill be
added to the roll of Florida Registered Paralegals and a certificate evidencing such
registration shallwill be issued. If there is an open unlicensed practice of law
complaint against the individual, the application will be held as pending until the
investigation is resolved.
(e) Annual Renewal; Content and Registration Fee. TheExcept as
provided elsewhere in this rule, the registration pursuant to this subdivision
shallwill be annual and consistent with that applicable to an attorneylawyer
licensed to practice in the state of Florida. An annual registration fee shallwill be
set by the board in an amount not more than the annual fees paid by inactive
members of The Florida Bar. The renewal shallmust contain a statement that the
individual is primarily performing paralegal work as defined elsewhere in this
chapter and a statement that the individual is not ineligible for registration set forth
elsewhere in this chapter. A Florida Registered Paralegal who is not primarily
performing paralegal work shallis not be eligible for renewal of the registration but
may reapply for registration. If there is an open unlicensed practice of law
complaint against the individual, renewal will be held as pending until the
investigation is resolved.
(f) Installment Payment of Renewal Fee. If a Florida Registered Paralegal is
employed by a federal, state, or local government, the Florida Registered Paralegal
may elect to pay their annual renewal fee in 3 equal installments. The Florida
Registered Paralegal’s notice of election to pay the renewal fee in installments
under this rule and the first installment payment 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 third installment payments postmarked after their respective due
date(s) are subject to a one-time late charge of $50 per fiscal year, which shall
accompany the final payment.
The Florida Bar will send written notice by registered or certified mail to the
last official address of each Florida Registered Paralegal whose renewal fee and
late fee have not been paid under this rule by February 1. Upon failure to pay
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renewal fees and any late charges under this rule by March 15, the individual’s
status as an Florida Registered Paralegal will be revoked.
Each Florida Registered Paralegal who elects to pay the annual renewal fee in
installments under this rule may be charged an additional administrative fee to
defray the costs of this activity as set by the Board of Governors.
(g) Renewal Fee Exemption for Activated Reserve Members of the
Armed Services. Florida Registered Paralegals engaged in reserve military
service in the Armed Forces of the United States who are called to active duty for
30 days or more during the bar’s fiscal year are exempt from the payment of the
annual renewal fee required under this rule. For purposes of this rule, 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 renewal fees are due each year or
within 15 days of activation to duty of a reserve member. To the extent renewal
fees were paid despite qualifying for this exemption, such renewal fee will be
reimbursed by The Florida Bar within 30 days of receipt of a Florida Registered
Paralegal’s request for exemption. Within 30 days of leaving active duty status,
the Florida Registered Paralegal must report to The Florida Bar that he or she is no
longer on active duty status in the United States Armed Forces.
20-6. CONTINUING EDUCATION
RULE 20-6.1 GENERALLY
In order to maintain the status of Florida Registered Paralegal, a Florida
Registered Paralegal must complete a minimum of 30 hours of continuing
education every 3 years, 5 hours of which shallmust be in legal ethics or
professionalism. Courses approved for credit by The Florida Bar, the National
Association of Legal Assistants (NALA), or the National Federation of Paralegal
Associations (NFPA) will be deemed acceptable for purposes of this rule. To be
eligible for re-registration, if a Florida Registered Paralegal resigns or has had his
or her status revoked but is otherwise eligible for re-registration, the Florida
Registered Paralegal must complete at least 10 hours of continuing education for
each year the Florida Registered Paralegal was previously registered. The
continuing education hours must be completed prior to the re-registration
application and be posted on The Florida Bar website within 30 days of the
effective date of re-registration, otherwise the new registration will be revoked and
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ineffective. Upon re-registration, the Florida Registered Paralegal will be given a
new 3-year continuing education cycle.
Comment
Continuing education is an important component of the Florida Registered
Paralegal program and necessary to maintain the status of a Florida Registered
Paralegal. If a Florida Registered Paralegal resigns or has had his or her status
revoked at the end of a continuing education cycle without completing the
necessary hours, the paralegal must show that he or she has completed a minimum
of 10 hours of continuing education for each year of the immediately preceding
term that the paralegal was registered. For example, if the paralegal was registered
for 2 years, the paralegal must complete at least 20 hours of continuing education
in order to re-register. The courses must be completed prior to the date the
paralegal reapplies for Florida Registered Paralegal status. As an example, assume
that a Florida Registered Paralegal was given a continuing education cycle that ran
from January 1, 2011, to January 1, 2014, and the Florida Registered Paralegal
resigned or had his or her status revoked in October 2013. If the paralegal
reapplies for Florida Registered Paralegal status in February 2014, the paralegal
must show 20 hours of continuing education credit completed between January 1,
2011, to January 1, 2014, to be eligible to re-register. Because a Florida
Registered Paralegal must enter all course credits on The Florida Bar’s website and
access to the portion of the website where credits are posted is not available during
the period the paralegal was not registered, the Florida Registered Paralegal will
have 30 days after re-registration to enter the credits. Failure to timely enter the
credits will result in the Florida Registered Paralegal’s status being revoked. Upon
re-registration, the Florida Registered Paralegal will be given a new continuing
education cycle. The purpose of this rule is to ensure that a Florida Registered
Paralegal continues his or her education. This is meant to avoid a situation where a
Florida Registered Paralegal has not completed the continuing education
requirement, resigns and then re-registers with a new 3-year cycle, having failed to
complete the requisite hours when previously registered.
If a Florida Registered Paralegal resigns or has his or her status revoked
during his or her continuing education cycle, the cycle will not reset. For example,
assume a Florida Registered Paralegal has a continuing education cycle beginning
January 1, 2011, and ending January 1, 2014. The Florida Registered Paralegal’s
status is revoked in October 2012, for failure to pay the annual renewal. If the
paralegal reapplies and is re-registered in December 2012, the continuing
education cycle will remain the same, and the Florida Registered Paralegal will
have until January 1, 2014, to complete the necessary hours.
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