In Re: Amendments to Rules Regulating The Florida Bar (Biennial Petition Housekeeping) – Corrected Opinion

Supreme Court of Florida
____________
No. SC14-2107
____________
IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR
(BIENNIAL PETITION HOUSEKEEPING).
[May 21, 2015]
CORRECTED OPINION
PER CURIAM.
This matter is before the Court on the petition of The Florida Bar proposing
amendments to the Rules Regulating the Florida Bar (Bar Rules). See R.
Regulating Fla. Bar 1-12.1. We have jurisdiction. See art. V, § 15, Fla. Const.
The Bar’s petition in this case proposes both new Bar Rules and
amendments to existing rules. According to the petition, the proposals included
here address “housekeeping” matters, in that the petition primarily recommends
editorial changes, updates to the Bar Rules based on prior amendments, and other
changes to codify long-standing practice. The proposals were approved by the
Board of Governors, and formal notice of the proposed amendments was published
in The Florida Bar News. The notice directed interested persons to file their
comments directly with the Court. The Court did not receive any comments.
The Bar proposes amendments to the following Bar Rules: 1-4.3
(Committees); 1-13.1 (Time); 2-7.3 (Creation of Sections and Divisions); 3-7.1
(Confidentiality); 3-7.11 (General Rule of Procedure); 4-1.4 (Communication); 4-
1.18 (Duties to Prospective Client); 4-4.4 (Respect for Rights of Third Persons); 4-
5.5 (Unlicensed Practice of Law; Multijurisdictional Practice of Law); 4-6.5
(Voluntary Pro Bono Plan); 6-3.11 (Fees); 10-2.1 (Generally); 18-1.1 (Purpose);
18-1.2 (Definitions); 18-1.3 (Activities); 18-1.4 (Supervision and Limitations); and
18-1.5 (Certification). It also proposes amendments to the “Preamble: A Lawyer’s
Responsibilities” to the Rules of Professional Conduct. Additionally, the Bar
recommends the repeal of existing Bar Rule 6-3.7 (Emeritus Specialist Status).
Finally, it proposes a new Subchapter 6-29 (Standards for Board Certification in
Juvenile Law), which would include four new Bar Rules: 6-29.1 (Generally); 6-
29.2 (Definitions); 6-29.3 (Minimum Standards); and 6-29.4 (Recertification).
After fully considering the petition, the Court adopts these “housekeeping”
amendments as proposed by the Bar.1
Accordingly, the Court adopts the amendments to the Rules Regulating the
Florida Bar as set forth in the appendix to this opinion. New language is indicated
1. The Court did make a non-substantive revision to Bar Rule 3-
7.11(f)(1)(C)(ii)(a), to delete the phrase “to withhold entry of an order of
suspension” at the end of that subdivision, in order to correct what appears to be a
scrivener’s error in the proposal.
-2-
by underscoring; deletions are indicated by struck-through type. The comments
are offered for explanation and guidance only and are not adopted as an official
part of the rules. The amendments shall become effective on October 1, 2015, at
12:01 a.m.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Rules Regulating The Florida Bar
John F. Harkness, Jr., Executive Director, Mary Ellen Bateman, DEUP Division
Director, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar,
Tallahassee, Florida,
for Petitioner
-3-
APPENDIX
RULE 1-4.3 COMMITTEES
The board of governors shallwill create an executive committee composed of
the president, president-elect, chairs of the budget, communications, disciplinary
review, program evaluation and legislation committees, president of the young
lawyers division, 2 members of the board appointed by the president, and 3
members of the board elected by the board to act upon such matters asthat arise
and require disposition between meetings of the board; a budget committee
composed of 9 members with 3-year staggered terms; grievance committees as
provided for in chapter 3; unlicensed practice of law committees as provided for in
chapter 10; and a professional ethics committee.
RULE 1-13.1 TIME
(a) Computation. In computing any period of time prescribed or allowed
by the Rules Regulating The Florida Bar, the day of the act, event, or default from
which the designated period of time begins to run shallwill not be included. The
last day of the period so computed shallwill be included unless it is a Saturday,
Sunday, or legal holiday, in which event the period shallwill run until the end of
the next day that is not a Saturday, Sunday, or legal holiday.
(b) Additional Time after Service by Mail or E-mail. When a person
has the right or is required to do some act or take some proceeding within a
prescribed period after service of a notice or other paper and the notice or paper is
served by mail or e-mail, 5 days shallwill be added to the prescribed period.
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. The Florida Bar will maintain current
lists of its sections and divisions and will post the lists on its website.
(a) Sections. The following sections of The Florida Bar have been
created by the board of governors:
-4-
(1) Administrative Law Section;
(2) Alternative Dispute Resolution Section;
(3) Appellate Practice Section;
(4) Business Law Section;
(5) City, County and Local Government Law Section;
(6) Criminal Law Section;
(7) Elder Law Section;
(8) Entertainment, Arts, and Sports Law Section;
(9) Environmental and Land Use Law Section;
(10) Equal Opportunities Law Section;
(11) Family Law Section;
(12) General Practice, Solo and Small Firm Section;
(13) Government Lawyer Section;
(14) Health Law Section;
(15) International Law Section;
(16) Labor and Employment Law Section;
(17) Public Interest Law Section;
(18) Real Property, Probate, and Trust Law Section;
(19) Tax Section;
(20) Trial Lawyers Section; and
-5-
(21) Workers’ Compensation Section.
(b) Divisions. The following divisions of The Florida Bar have been
created by the board of governors:
(1) Out-of-State Division; and
(2) Young Lawyers Division.
RULE 3-7.1 CONFIDENTIALITY
(a) Scope of Confidentiality. All mattersrecords including files,
preliminary investigation reports, interoffice memoranda, records of investigations,
and the records in trials and other proceedings under these rules, except those
disciplinary matters conducted in circuit courts, are property of The Florida Bar.
All of those matters are confidential and will not be disclosed except as provided in
these rules. When disclosure is permitted under these rules, it will be limited to
information concerning the status of the proceedings and any information that is
part of the public record as defined in these rules.
Unless otherwise ordered by this court or the referee in proceedings under
these rules, nothing in these rules will prohibits the complainant, respondent, or
any witness from disclosing the existence of proceedings under these rules, or from
disclosing any documents or correspondence served on or provided to those
persons except where disclosure is prohibited in Chapter 4 of these rules or by
statutes and caselaw regarding attorney-client privilege.
(1) – (2) [No Change]
(3) Probable Cause Cases. Any disciplinary case in which a
finding of probable cause for further disciplinary proceedings has been entered is
public information. For purposes of this subdivision a finding of probable cause is
deemed in those cases authorized by rule 3-3.2(a), for the filing of a formal
complaint without the prior necessityrequirement of a finding of probable cause.
(4) [No Change]
(5) Diversion or Referral to Grievance Mediation Program. Any
disciplinary case that has been concluded by diversion to a practice and
-6-
professionalism enhancement program or by referral to the grievance mediation
program is public information upon the entry of such a recommendation.
(6) Contempt Cases. Contempt proceedings authorized elsewhere
in these rules are public information even thoughif 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 are public
information upon the filing of the petition with the Supreme Court of Florida.
(8) – (11) [No Change]
(12) Disciplinary Resignations and Disciplinary Revocations.
Proceedings involving petitions for disciplinary resignation or for disciplinary
revocation as provided elsewhere in these rules, are public information.
(b) – (m) [No Change]
RULE 3-7.11 GENERAL RULES OF PROCEDURE
(a) [No Change]
(b) Process. Every member of The Florida Bar is charged with notifying
The Florida Bar of aany change of mailing address, e-mail address (unless the
lawyer has been excused by The Florida Bar or court from e-filing and e-service)
orand military status. Mailing of registered or certified papers or notices
prescribed in these rules to the last mailing address of an attorney as shown by the
official records in the office of the executive director of The Florida Bar shall be
sufficient notice and service unless this court shall direct otherwise. The Florida
Bar may serve notice of formal complaints in bar proceedings by U.S. Postal
Service certified mail return receipt requested to the bar member’s record bar
address unless the Supreme Court of Florida directs other service. Every
attorneylawyer of another state who is admitted pro hac vicepermitted to practice
for the purpose ofin a specific case before a court of record of this statein Florida
may be served by registered orU.S. Postal Service certified mail return receipt
requested addressed to saidthe attorneylawyer in care of the Florida attorneylawyer
who was associated or appeared with the attorneylawyer admitted pro hac vice in
the specific case for which the out-of-state attorney was permitted to practice or
-7-
addressed to saidthe attorneyFlorida lawyer at any address listed by the
attorneylawyer in the pleadings in suchthe case.
Provided, however, when a person is represented by counsel, service of
process and notices shallmust be directed to counsel.
(c) Notice in Lieu of Process. Every member of The Florida Bar is within
the jurisdiction of the Supreme Court of Florida and its agencies under these rules,
and service of process is not required to obtain jurisdiction over respondents in
disciplinary proceedings; but due process requires the giving of reasonable notice
and suchthis notice shallwill be effectiveed by the service of the complaint upon
the respondent by mailing a copy of The Florida Bar’s formal complaintthereof by
registered or certified U.S. Postal Service mail return receipt requested to the last-
known address of the respondent’s record bar address according to the records of
The Florida Bar or sucha latermore current address asthat may be known to the
person effecting the serviceserving the complaint or other process.
When the respondent is represented by counsel in thea referee
proceedingmatter, due process is satisfied by the service of the formal complaint
upon the respondent’s counsel by mailing a copy thereof by registered or certified
mail return receipt requested to the last knownrecord bar address of the
respondent’s counsel according to the records of The Florida Bar or sucha
latermore current address asthat may be known to the person effecting the
serviceserving the complaint.
All other correspondence between The Florida Bar and respondents or their
counsel, including bar inquiries that require responses during the investigative
stage of a disciplinary proceeding, may be made by e-mail to the respondent’s
record bar e-mail address or the record bar e-mail address of respondent’s counsel.
E-mail correspondence is encouraged in all instances except in service of a formal
complaint or subpoena, or where a court directs otherwise. If a lawyer has been
excused by The Florida Bar or court from e-filing and e-service, or service cannot
be made by e-mail, service by first class postal mail is sufficient except where
these rules or a court direct otherwise.
(d) Issuance of Subpoenas. Subpoenas for the attendance of witnesses’
attendance and the production of documentary evidence other thanexcept before a
circuit court shallmust be issued as follows:
-8-
(1) Referees. Subpoenas for the attendance of witnesses’
attendance and production of documentary evidence before a referee shallmust be
issued by the referee and shallmust be served either in the manner provided by law
for the service of process or by an investigator employed by The Florida Bar.
(2) Grievance Committees. Subpoenas for the attendance of
witnesses’ attendance and the production of documentary evidence shallmust be
issued by the chair or vice-chair of a grievance committee in pursuance ofas part of
an investigation authorized by the committee. SuchThese subpoenas may be
served by any member of suchthe grievance committee, by an investigator
employed by The Florida Bar, or in the manner provided by law for the service of
process.
(3) Bar Counsel Investigations. Subpoenas for the attendance of
witnesses’ attendance and the production of documentary evidence before bar
counsel when same is conductingin an initial investigation shallmust be issued by
the chair or vice-chair of a grievance committee to which the matter will be
assigned, if appropriate. SuchThese subpoenas may be served by an investigator
employed by The Florida Bar or in the manner provided by law for the service of
process.
(4) After Grievance Committee Action, But Before Appointment of
Referee. Subpoenas for the attendance of witnesses’ attendance and the production
of documentary evidence before bar counsel when same is conducting further
investigation after action by a grievance committee, but before appointment of a
referee, shallmust be issued by the chair or vice-chair of the grievance committee
to which the matter was assigned. SuchThese subpoenas may be served by an
investigator employed by The Florida Bar or in the manner provided by law for the
service of process.
(5) Board of Governors. Subpoenas for the attendance of
witnesses’ attendance and the production of documentary evidence before the
board of governors shallmust be issued by the executive director and shallmust be
served by an investigator employed by The Florida Bar or in the manner provided
by law for the service of process.
(6) Confidential Proceedings. If the proceeding is confidential, a
subpoena shallmust not name the respondent but shallmust style the proceeding as
“Confidential Proceeding by The Florida Bar under the Rules of Discipline.”
-9-
(7) Contempt.
(A) Generally. Any persons who, without adequate excuse,
fail to obey such a subpoena served upon them under these rules, may be cited for
contempt of this court in the manner provided by this rule.
(B) Subpoenas for Trust Accounting Records. Members of
the bar are under an obligation to maintain trust accounting records as required by
these rules and, as a condition of the privilege of practicing law in Florida, may not
assert any privilege personal to the lawyer that may be applicable to production of
suchthese records in any disciplinary proceedings under these rules.
(i) A respondent who has been found in willful
noncompliance with a subpoena for trust accounting records may be cited for
contempt under this rule only if the disciplinary agency that issued the subpoena
shall have firsthas found that no good cause existed for the respondent’s failure to
comply.
(ii) The disciplinary agency that issued the subpoena
shallmust hear the issue of noncompliance and issue findings thereonon the
noncompliance within 30 days of a request for issuance of the notice of
noncompliance.
(8) Assistance to Other Lawyer Disciplinary Jurisdictions. UpoOn
receipt of a subpoena certified to be duly issued under the rules or laws of another
lawyer disciplinary jurisdiction, the executive director may issue a subpoena
directing a person domiciled or found within the state of Florida to give testimony
and/or produce documents or other thingsevidence for use in the other
jurisdiction’s lawyer disciplinary proceedings as directed in the subpoena of the
other jurisdiction. The practice and procedure applicable to subpoenas issued
under this subdivision shallwill be that of the other jurisdiction, except that:
(A) the testimony or production shallmust be only in the
county whereinin which the person resides or is employed, or as otherwise fixed by
the executive director for good cause shown; and
(B) compliance with any subpoena issued pursuant to this
subdivision and contempt for failure in this respect shallmust be sought as
elsewhere provided inunder these rules.
- 10 -
(e) Oath of Witness. Every witness in every proceeding under these rules
shallmust be sworn to tell the truth. Violation of this oath shall beis an act of
contempt of this court.
(f) Contempt. When a disciplinary agency, as defined elsewhere in these
rules, finds that a person is in contempt under these rules, suchthat person may be
cited for contempt in the following manner:
(1) Generally.
(A) Petition for Contempt and Order to Show Cause. When a
person is found in contempt by a disciplinary agency, bar counsel shallmust file a
petition for contempt and order to show cause with the Supreme Court of Florida.
(B) Order to Show Cause; Suspension for Noncompliance
with Subpoena for Trust Accounting Records. On review of a petition for
contempt and order to show cause, the supreme court may issue an order directing
the person to show cause why suchthe person should not be held in contempt and
appropriate sanctions imposed.
On review of a petition for contempt and order to show cause
for noncompliance with a trust accounting subpoena, the supreme court may also
issue an order suspending the respondent from the practice of law in Florida until
such time as the member fully complies with the subpoena and any further order of
the court.
The order of the supreme court shallmust fix a time for a
response.
(C) Response to Order to Show Cause.
(i) Generally. Any member subject to an order to show
cause shallmust file a response as directed by the court.
(ii) Noncompliance with a Subpoena for Trust Account
Records. Any member subject to an order to show cause for noncompliance with a
subpoena for trust accounting records may request the court:
a. within 10 days of the filing of the petition
for contempt and order to show causeto withhold entry of an order of suspension, if
- 11 -
filed within 10 days of the filing of the petition for contempt and order to show
cause, or such another time as the court may direct in the order to show cause, to
withhold entry of an order of suspension; or
b. at any time after entry of an order of
suspension, to terminate or modify the order of suspension at any time after the
order of suspension is issued. The court may terminate, modify, or withhold entry
of an order of suspension if the member establishes good cause for failure to
comply with the subpoena for trust account records.
(D) Failure to Respond to Order to Show Cause. UpoOn
failure to timely respond to an order to show cause, the matters alleged in the
petition shall beare deemed admitted and the supreme court may enter a judgment
of contempt and impose appropriate sanctions. Failure to respond may be an
additional basis on which a judgment of contempt may be entered and sanctions
imposed.for the supreme court to enter a judgment of contempt and to impose
sanctions.
(E) Reply of The Florida Bar. When a timely response to an
order to show cause is filed, The Florida Bar shallwill have 10 days, or such
another time period as the supreme court may order, from the date of filing in
which to file a reply.
(F) Supreme Court Action. After expiration of the time to
respond to an order to show cause has expired and no response is timely filed, or
after the reply of The Florida Bar has been filed, or the time therefore has expired
without suchany filing, the supreme court shallwill review the matter and issue an
appropriate judgment. SuchThis judgment may include any sanction that a court
may impose for contempt and, if the person found in contempt is a member of The
Florida Bar, may include any disciplinary sanction authorized under these rules.
If the supreme court requires factual findings, the supreme court
may direct appointment of a referee as elsewhere provided in these rules.
Proceedings for contempt referred to a referee shallmust be processed in the same
manner as disciplinary proceedings under these rules, including but not limited to
the procedures provided thereinin these rules for conditional guilty pleas for
consent judgments. If the court determines it necessary to refer a request to
terminate, modify, or withhold entry of an order of suspension based on a petition
for contempt and order to show cause for noncompliance with a subpoena for trust
account records to a referee for receipt of evidence, the referee proceedings
- 12 -
shallmust be expedited and conducted in the same manner as proceedings before a
referee on a petition to terminate, modify, or withhold an order of emergency
suspension, as elsewhere provided in these rules.
(G) Preparation and Filing of Report of Referee and Record.
The referee shallmust prepare and file a report and the record in cases brought
under this rule. The procedures provided for in the rule on procedure before a
referee elsewhere under these rules shall apply to the preparation, filing, and
review of the record herein.
(H) Appellate Review of Report of Referee. Any party to the
contempt proceedings may seek review of the report of referee in the manner
provided in these rules onfor appellate review of disciplinary proceedings under
these rules.
(2) Failure to Respond to Official Bar Inquiries.
(A) Petition for Contempt and Order to Show Cause. When a
respondent is found in contempt by a disciplinary agency for failure to respond to
an official bar inquiry without good cause shown, bar counsel shallmust file a
petition for contempt and order to show cause with the Supreme Court of Florida.
(B) Response to Petition for Contempt and Order to Show
Cause. The respondent shallwill have 10 days from the date of filing of a petition
authorized by this subdivision in which to file a response.
(C) Supreme Court Action.
(i) Entry of Suspension Order. After a response has
been filed, or the time for a response has expired, and unless otherwise ordered by
the court, an order shall be entered suspending the respondent for failure to
respond to an official bar inquiry until further order of the court.The court will
enter an order suspending the respondent for failure to respond to an official bar
inquiry after the respondent files a response to the order to show cause or the time
for filing a response has expired, unless the court orders otherwise.
(ii) Assignment to Referee. If the supreme court
requires factual findings, the supreme court may direct appointment of a referee as
elsewhere provided in these rules. Proceedings for contempt referred to a referee
shallmust be processed in the same manner as disciplinary proceedings under these
- 13 -
rules, including but not limited to the provisions provided for conditional guilty
pleas for consent judgments.
(g) Court Reporters. Court reporters who are employees of The Florida
Bar may be appointed to report any disciplinary proceeding. If the respondent
objects at least 48 hours in advance of the matter to be recorded, an independent
contract reporter may be retained. Reasonable costs for independent court reporter
service shallwill be taxed to athe respondent for payment to The Florida Bar.
(h) Disqualification as Trier and AttorneyLawyer for Respondent
Due to Conflict.
(1) Grievance Committee Members, Members of the Board of
Governors, and Employees of The Florida Bar. No grievance committee member,
member of the board of governors, or employee of The Florida Bar shallmay
represent a party other than The Florida Bar in disciplinary proceedings authorized
under these rules.
(2) Former Grievance Committee Members, Former Board
Members, and Former Employees. No former member of a grievance committee,
former member of the board of governors, or former employee of The Florida Bar
shallmay represent any party other than The Florida Bar in disciplinary
proceedings authorized under these rules if personally involved to any degree in
the matter while a member of the grievance committee, the board of governors, or
while an employee of The Florida Bar.
A former member of the board of governors, former member of any
grievance committee, or former employee of The Florida Bar who did not
participate personally in any way in the investigation or prosecution of the matter
or in any related matter in which the attorneylawyer seeks to be a representative,
and who did not serve in a supervisory capacity over suchthe investigation or
prosecution, shallmay not represent any party except The Florida Bar for 1 year
after suchthis service without the express consent of the board.
(3) Partners, Associates, Employers, or Employees of the Firms of
Grievance Committee Members or Board of Governors Members Precluded From
Representing Parties Other Than The Florida Bar. Members of the firms of
grievance committee members or board members shallmay not represent any party
other than The Florida Bar in disciplinary proceedings authorized under these rules
without the express consent of the board.
- 14 -
(4) Partners, Associates, Employers, or Employees of the Firms of
Former Grievance Committee Members or Former Board of Governors Members
Precluded From Representing Parties Other Than The Florida Bar.
AttorneysLawyers in the firms of former board members or former grievance
committee members shallmay not represent any party other than The Florida Bar in
disciplinary proceedings authorized under these rules for 1 year after the former
member’s service without the express consent of the board.
(i) Proceedings after Disbarment. The respondent may consent to or the
court may order further proceedings after disbarment, which may include: an audit
of trust, operating, or personal bank accounts, the cost of which may be assessed as
provided elsewhere in these rules; a requirement forthat the respondent to provide
a financial affidavit attesting to personal and business finances; and maintenance of
a current mailing address for a stated period of time.
CHAPTER 4 RULES OF PROFESSIONAL CONDUCT
PREAMBLE: A LAWYER’S RESPONSIBILITIES
A lawyer, as a member of the legal profession, is a representative of clients,
an officer of the legal system, and a public citizen having special responsibility for
the quality of justice.
As a representative of clients, a lawyer performs various functions. As an
adviser, a lawyer provides a client with an informed understanding of the client’s
legal rights and obligations and explains their practical implications. As an
advocate, a lawyer zealously asserts the client’s position under the rules of the
adversary system. As a negotiator, a lawyer seeks a result advantageous to the
client but consistent with requirements of honest dealing with others. As an
evaluator, a lawyer acts by examining a client’s legal affairs and reporting about
them to the client or to others.
In addition to these representational functions, a lawyer may serve as a third-
party neutral, a nonrepresentational role helping the parties to resolve a dispute or
other matter. Some of these rules apply directly to lawyers who are or have served
as third-party neutrals. See, e.g., rules 4-1.12 and 4-2.4. In addition, there are
rules that apply to lawyers who are not active in the practice of law or to practicing
lawyers even when they are acting in a nonprofessional capacity. For example, a
lawyer who commits fraud in the conduct of a business is subject to discipline for
- 15 -
engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. See
rule 4-8.4.
In all professional functions a lawyer should be competent, prompt, and
diligent. A lawyer should maintain communication with a client concerning the
representation. A lawyer should keep in confidence information relating to
representation of a client except so far as disclosure is required or permitted by the
Rules of Professional Conduct or by law.
A lawyer’s conduct should conform to the requirements of the law, both in
professional service to clients and in the lawyer’s business and personal affairs. A
lawyer should use the law’s procedures only for legitimate purposes and not to
harass or intimidate others. A lawyer should demonstrate respect for the legal
system and for those who serve it, including judges, other lawyers, and public
officials. While it is a lawyer’s duty, when necessary, to challenge the rectitude of
official action, it is also a lawyer’s duty to uphold legal process.
As a public citizen, a lawyer should seek improvement of the law, access to
the legal system, the administration of justice, and the quality of service rendered
by the legal profession. As a member of a learned profession, a lawyer should
cultivate knowledge of the law beyond its use for clients, employ that knowledge
in reform of the law, and work to strengthen legal education. In addition, a lawyer
should further the public’s understanding of and confidence in the rule of law and
the justice system, because legal institutions in a constitutional democracy depend
on popular participation and support to maintain their authority. A lawyer should
be mindful of deficiencies in the administration of justice and of the fact that the
poor, and sometimes persons who are not poor, cannot afford adequate legal
assistance. Therefore, all lawyers should devote professional time and resources
and use civic influence to ensure equal access to our system of justice for all those
who because of economic or social barriers cannot afford or secure adequate legal
counsel. A lawyer should aid the legal profession in pursuing these objectives and
should help the bar regulate itself in the public interest.
Many of the lawyer’s professional responsibilities are prescribed in the
Rules of Professional Conduct and in substantive and procedural law. A lawyer is
also guided by personal conscience and the approbation of professional peers. A
lawyer should strive to attain the highest level of skill, to improve the law and the
legal profession, and to exemplify the legal profession’s ideals of public service.
- 16 -
A lawyer’s responsibilities as a representative of clients, an officer of the
legal system, and a public citizen are usually harmonious. Zealous advocacy is not
inconsistent with justice. Moreover, unless violations of law or injury to another or
another’s property is involved, preserving client confidences ordinarily serves the
public interest because people are more likely to seek legal advice, and thereby
heed their legal obligations, when they know their communications will be private.
In the practice of law, conflicting responsibilities are often encountered.
Difficult ethical problems may arise from a conflict between a lawyer’s
responsibility to a client and the lawyer’s own sense of personal honor, including
obligations to society and the legal profession. The Rules of Professional Conduct
often prescribe terms for resolving suchthese conflicts. Within the framework of
these rules, however, many difficult issues of professional discretion can arise.
SuchThese issues must be resolved through the exercise of sensitive professional
and moral judgment guided by the basic principles underlying the rules. These
principles include the lawyer’s obligation to protect and pursue a client’s legitimate
interests, within the bounds of the law, while maintaining a professional,
courteous, and civil attitude toward all persons involved in the legal system.
Lawyers are officers of the court and they are responsible to the judiciary for
the propriety of their professional activities. Within that context, the legal
profession has been granted powers of self-government. Self-regulation helps
maintain the legal profession’s independence from undue government domination.
An independent legal profession is an important force in preserving government
under law, for abuse of legal authority is more readily challenged by a profession
whose members are not dependent on the executive and legislative branches of
government for the right to practice. Supervision by an independent judiciary, and
conformity with the rules the judiciary adopts for the profession, assures both
independence and responsibility.
Thus, every lawyer is responsible for observance of the Rules of Professional
Conduct. A lawyer should also aid in securing their observance by other lawyers.
Neglect of these responsibilities compromises the independence of the profession
and the public interest that it serves.
Scope:
The Rules of Professional Conduct are rules of reason. They should be
interpreted with reference to the purposes of legal representation and of the law
itself. Some of the rules are imperatives, cast in the terms of “shallmust,” or
- 17 -
“shallmust not.,” or “may not.” These define proper conduct for purposes of
professional discipline. Others, generally cast in the term "may," are permissive
and define areas under the rules in which the lawyer has discretion to exercise
professional judgment. No disciplinary action should be taken when the lawyer
chooses not to act or acts within the bounds of suchthat discretion. Other rules
define the nature of relationships between the lawyer and others. The rules are
thus partly obligatory and disciplinary and partly constitutive and descriptive in
that they define a lawyer’s professional role.
The comment accompanying each rule explains and illustrates the meaning
and purpose of the rule. The comments are intended only as guides to
interpretation, whereas the text of each rule is authoritative. Thus, comments, even
when they use the term “should,” do not add obligations to the rules but merely
provide guidance for practicing in compliance with the rules.
The rules presuppose a larger legal context shaping the lawyer’s role. That
context includes court rules and statutes relating to matters of licensure, laws
defining specific obligations of lawyers, and substantive and procedural law in
general. Compliance with the rules, as with all law in an open society, depends
primarily upon understanding and voluntary compliance, secondarily upon
reinforcement by peer and public opinion, and finally, when necessary, upon
enforcement through disciplinary proceedings. The rules do not, however, exhaust
the moral and ethical considerations that should inform a lawyer, for no
worthwhile human activity can be completely defined by legal rules. The rules
simply provide a framework for the ethical practice of law. The comments are
sometimes used to alert lawyers to their responsibilities under other law.
Furthermore, for purposes of determining the lawyer’s authority and
responsibility, principles of substantive law external to these rules determine
whether a client-lawyer relationship exists. Most of the duties flowing from the
client-lawyer relationship attach only after the client has requested the lawyer to
render legal services and the lawyer has agreed to do so. But there are some
duties, such as that offor example confidentiality under rule 4-1.6, which attach
when the lawyer agrees to consider whether a client-lawyer relationship shallwill
be established. See rule 4-1.18. Whether a client-lawyer relationship exists for
any specific purpose can depend on the circumstances and may be a question of
fact.
Failure to comply with an obligation or prohibition imposed by a rule is a
basis for invoking the disciplinary process. The rules presuppose that disciplinary
- 18 -
assessment of a lawyer’s conduct will be made on the basis of the facts and
circumstances as they existed at the time of the conduct in question in recognition
of the fact that a lawyer often has to act upon uncertain or incomplete evidence of
the situation. Moreover, the rules presuppose that whether discipline should be
imposed for a violation, and the severity of a sanction, depend on all the
circumstances, such as the willfulness and seriousness of the violation, extenuating
factors, and whether there have been previous violations.
Violation of a rule should not itself give rise to a cause of action against a
lawyer nor should it create any presumption in such a case that a legal duty has
been breached. In addition, violation of a rule does not necessarily warrant any
other nondisciplinary remedy, such as disqualification of a lawyer in pending
litigation. The rules are designed to provide guidance to lawyers and to provide a
structure for regulating conduct through disciplinary agencies. They are not
designed to be a basis for civil liability. Furthermore, the purpose of the rules can
be subverted when they are invoked by opposing parties as procedural weapons.
The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning
a lawyer under the administration of a disciplinary authority, does not imply that
an antagonist in a collateral proceeding or transaction has standing to seek
enforcement of the rule. Accordingly, nothing in the rules should be deemed to
augment any substantive legal duty of lawyers or the extra-disciplinary
consequences of violating sucha substantive legal duty. Nevertheless, since the
rules do establish standards of conduct by lawyers, a lawyer’s violation of a rule
may be evidence of a breach of the applicable standard of conduct.
Terminology:
“Belief” or “believes” denotes that the person involved actually supposed
the fact in question to be true. A person’s belief may be inferred from
circumstances.
“Consult” or “consultation” denotes communication of information
reasonably sufficient to permit the client to appreciate the significance of the
matter in question.
“Confirmed in writing,” when used in reference to the informed consent of a
person, denotes informed consent that is given in writing by the person or a writing
that a lawyer promptly transmits to the person confirming an oral informed
consent. See “informed consent” below. If it is not feasible to obtain or transmit
- 19 -
the writing at the time the person gives informed consent, then the lawyer must
obtain or transmit it within a reasonable timethereafter.
“Firm” or “law firm” denotes a lawyer or lawyers in a law partnership,
professional corporation, sole proprietorship, or other association authorized to
practice law; or lawyers employed in the legal department of a corporation or other
organization.
“Fraud” or “fraudulent” denotes conduct having a purpose to deceive and
not merely negligent misrepresentation or failure to apprise another of relevant
information.
“Informed consent” denotes the agreement by a person to a proposed course
of conduct after the lawyer has communicated adequate information and
explanation about the material risks of and reasonably available alternatives to the
proposed course of conduct.
“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in
question. A person’s knowledge may be inferred from circumstances.
“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.
“Partner” denotes a member of a partnership and a shareholder in a law firm
organized as a professional corporation, or a member of an association authorized
to practice law.
“Reasonable” or “reasonably” when used in relation to conduct by a lawyer
denotes the conduct of a reasonably prudent and competent lawyer.
“Reasonable belief” or “reasonably believes” when used in reference to a
lawyer denotes that the lawyer believes the matter in question and that the
circumstances are such that the belief is reasonable.
“Reasonably should know” when used in reference to a lawyer denotes that
a lawyer of reasonable prudence and competence would ascertain the matter in
question.
“Screened” denotes the isolation of a lawyer from any participation in a
matter through the timely imposition of procedures within a firm that are
- 20 -
reasonably adequate under the circumstances to protect information that the
isolated lawyer is obligated to protect under these rules or other law.
“Substantial” when used in reference to degree or extent denotes a material
matter of clear and weighty importance.
“Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding,
or a legislative body, administrative agency, or other body acting in an adjudicative
capacity. A legislative body, administrative agency, or other body acts in an
adjudicative capacity when a neutral official, after the presentation of evidence or
legal argument by a party or parties, will render a binding legal judgment directly
affecting a party’s interests in a particular matter.
“Writing” or “written” denotes a tangible or electronic record of a
communication or representation, including handwriting, typewriting, printing,
photostating, photography, audio or video recording, and e-mailelectronic
communications. A “signed” writing includes an electronic sound, symbol or
process attached to or logically associated with a writing and executed or adopted
by a person with the intent to sign the writing.
COMMENT
Confirmed in writing
If it is not feasible to obtain or transmit a written confirmation at the time the
client gives informed consent, then the lawyer must obtain or transmit it within a
reasonable time thereafter. If a lawyer has obtained a client’s informed consent,
the lawyer may act in reliance on that consent so long as it is confirmed in writing
within a reasonable time thereafter.
Firm
Whether 2 or more lawyers constitute a firm above can depend on the
specific facts. For example, 2 practitioners who share office space and
occasionally consult or assist each other ordinarily would not be regarded as
constituting a firm. However, if they present themselves to the public in a way that
suggests that they are a firm or conduct themselves as a firm, they should be
regarded as a firm for purposes of the rules. The terms of any formal agreement
between associated lawyers are relevant in determining whether they are a firm, as
is the fact that they have mutual access to information concerning the clients they
- 21 -
serve. Furthermore, it is relevant in doubtful cases to consider the underlying
purpose of the rule that is involved. A group of lawyers could be regarded as a
firm for purposes of the rule that the same lawyer should not represent opposing
parties in litigation, while it might not be so regarded for purposes of the rule that
information acquired by 1 lawyer is attributed to another.
With respect to the law department of an organization, including the
government, there is ordinarily no question that the members of the department
constitute a firm within the meaning of the Rules of Professional Conduct. There
can be uncertainty, however, as to the identity of the client. For example, it may
not be clear whether the law department of a corporation represents a subsidiary or
an affiliated corporation, as well as the corporation by which the members of the
department are directly employed. A similar question can arise concerning an
unincorporated association and its local affiliates.
Similar questions can also arise with respect to lawyers in legal aid and legal
services organizations. Depending upon the structure of the organization, the
entire organization or different components of it may constitute a firm or firms for
purposes of these rules.
Fraud
When used in these rules, the terms “fraud” or “fraudulent” refer to conduct
that has a purpose to deceive. This does not include merely negligent
misrepresentation or negligent failure to apprise another of relevant information.
For purposes of these rules, it is not necessary that anyone has suffered damages or
relied on the misrepresentation or failure to inform.
Informed consent
Many of the Rules of Professional Conduct require the lawyer to obtain the
informed consent of a client or other person (e.g., a former client or, under certain
circumstances, a prospective client) before accepting or continuing representation
or pursuing a course of conduct. See, e.g., rules 4-1.2(c), 4-1.6(a), 4-1.7(b), and 4-
1.18. The communication necessary to obtain such consent will vary according to
the rule involved and the circumstances giving rise to the need to obtain informed
consent. The lawyer must make reasonable efforts to ensure that the client or other
person possesses information reasonably adequate to make an informed decision.
Ordinarily, this will require communication that includes a disclosure of the facts
and circumstances giving rise to the situation, any explanation reasonably
- 22 -
necessary to inform the client or other person of the material advantages and
disadvantages of the proposed course of conduct and a discussion of the client’s or
other person’s options and alternatives. In some circumstances it may be
appropriate for a lawyer to advise a client or other person to seek the advice of
other counsel. A lawyer need not inform a client or other person of facts or
implications already known to the client or other person; nevertheless, a lawyer
who does not personally inform the client or other person assumes the risk that the
client or other person is inadequately informed and the consent is invalid. In
determining whether the information and explanation provided are reasonably
adequate, relevant factors include whether the client or other person is experienced
in legal matters generally and in making decisions of the type involved, and
whether the client or other person is independently represented by other counsel in
giving the consent. Normally, suchthese persons need less information and
explanation than others, and generally a client or other person who is
independently represented by other counsel in giving the consent should be
assumed to have given informed consent.
Obtaining informed consent will usually require an affirmative response by
the client or other person. In general, a lawyer may not assume consent from a
client’s or other person’s silence. Consent may be inferred, however, from the
conduct of a client or other person who has reasonably adequate information about
the matter. A number of rules state that a person’s consent be confirmed in
writing. See, e.g., rule 4-1.7(b). For a definition of “writing” and “confirmed in
writing,” see terminology above. Other rules require that a client’s consent be
obtained in a writing signed by the client. See, e.g., rule 4-1.8(a). For a definition
of “signed,” see terminology above.
Screened
This definition applies to situations where screening of a personally
disqualified lawyer is permitted to remove imputation of a conflict of interest
under rules 4-1.11, 4-1.12, or 4-1.18.
The purpose of screening is to assure the affected parties that confidential
information known by the personally disqualified lawyer remains protected. The
personally disqualified lawyer should acknowledge the obligation not to
communicate with any of the other lawyers in the firm with respect to the matter.
Similarly, other lawyers in the firm who are working on the matter should be
informed that the screening is in place and that they may not communicate with the
personally disqualified lawyer with respect to the matter. Additional screening
- 23 -
measures that are appropriate for the particular matter will depend on the
circumstances. To implement, reinforce, and remind all affected lawyers of the
presence of the screening, it may be appropriate for the firm to undertake suchthese
procedures as a written undertaking by the screened lawyer to avoid any
communication with other firm personnel and any contact with any firm files or
other materialsinformation, including information in electronic form, relating to the
matter, written notice and instructions to all other firm personnel forbidding any
communication with the screened lawyer relating to the matter, denial of access by
the screened lawyer to firm files or other materialsinformation, including
information in electronic form, relating to the matter, and periodic reminders of the
screen to the screened lawyer and all other firm personnel.
In order to be effective, screening measures must be implemented as soon as
practicable after a lawyer or law firm knows or reasonably should know that there
is a need for screening.
RULE 4-1.4 COMMUNICATION
(a) – (b) [No Change]
COMMENT
Reasonable communication between the lawyer and the client is necessary
for the client to effectively participate in the representation.
Communicating with client
If these rules require that a particular decision about the representation be
made by the client, subdivision (a)(1) requires that the lawyer promptly consult
with and secure the client’s consent prior to taking action unless prior discussions
with the client have resolved what action the client wants the lawyer to take. For
example, a lawyer who receives from opposing counsel an offer of settlement in a
civil controversy or a proffered plea bargain in a criminal case must promptly
inform the client of its substance unless the client has previously indicated that the
proposal will be acceptable or unacceptable or has authorized the lawyer to accept
or to reject the offer. See rule 4-1.2(a).
- 24 -
Subdivision (a)(2) requires the lawyer to reasonably consult with the client
about the means to be used to accomplish the client’s objectives. In some
situations – depending on both the importance of the action under consideration
and the feasibility of consulting with the client – this duty will require consultation
prior to taking action. In other circumstances, such as during a trial when an
immediate decision must be made, the exigency of the situation may require the
lawyer to act without prior consultation. In such cases the lawyer must nonetheless
act reasonably to inform the client of actions the lawyer has taken on the client’s
behalf. Additionally, subdivision (a)(3) requires that the lawyer keep the client
reasonably informed about the status of the matter, such as significant
developments affecting the timing or the substance of the representation.
A lawyer’s regular communication with clients will minimize the occasions
on which a client will need to request information concerning the representation.
When a client makes a reasonable request for information, however, subdivision
(a)(4) requires prompt compliance with the request, or if a prompt response is not
feasible, that the lawyer, or a member of the lawyer’s staff, acknowledge receipt of
the request and advise the client when a response may be expected.
Lawyers have particular responsibilities in communicating with clients
regarding changes in firm composition. See Rule 4-5.8.
Explaining matters
The client should have sufficient information to participate intelligently in
decisions concerning the objectives of the representation and the means by which
they are to be pursued, to the extent the client is willing and able to do so.
Adequacy of communication depends in part on the kind of advice or
assistance that is involved. For example, when there is time to explain a proposal
made in a negotiation, the lawyer should review all important provisions with the
client before proceeding to an agreement. In litigation a lawyer should explain the
general strategy and prospects of success and ordinarily should consult the client
on tactics that are likely to result in significant expense or to injure or coerce
others. On the other hand, a lawyer ordinarily will not be expected to describe trial
or negotiation strategy in detail. The guiding principle is that the lawyer should
fulfill reasonable client expectations for information consistent with the duty to act
in the client’s best interests and the client’s overall requirements as to the character
of representation. In certain circumstances, such as when a lawyer asks a client to
- 25 -
consent to a representation affected by a conflict of interest, the client must give
informed consent, as defined in terminology.
Ordinarily, the information to be provided is that appropriate for a client
who is a comprehending and responsible adult. However, fully informing the
client according to this standard may be impracticable, for example, where the
client is a child or suffers from mental disability. See rule 4-1.14. When the client
is an organization or group, it is often impossible or inappropriate to inform every
one of its members about its legal affairs; ordinarily, the lawyer should address
communications to the appropriate officials of the organization. See rule 4-1.13.
Where many routine matters are involved, a system of limited or occasional
reporting may be arranged with the client.
Withholding information
In some circumstances, a lawyer may be justified in delaying transmission of
information when the client would be likely to react imprudently to an immediate
communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client
when the examining psychiatrist indicates that disclosure would harm the client. A
lawyer may not withhold information to serve the lawyer’s own interest or
convenience or the interests or convenience of another person. Rules or court
orders governing litigation may provide that information supplied to a lawyer may
not be disclosed to the client. Rule 4-3.4(c) directs compliance with such rules or
orders.
RULE 4-1.18 DUTIES TO PROSPECTIVE CLIENT
(a) Prospective Client. A person who discussesconsults with a lawyer
about the possibility of forming a client-lawyer relationship with respect to a
matter is a prospective client.
(b) Confidentiality of Information. Even when no client-lawyer
relationship ensues, a lawyer who has had discussions withlearned information
from a prospective client shallmay not use or reveal that information learned in the
consultation, except as rule 4-1.9 would permit with respect to information of a
former client.
(c) Subsequent Representation. A lawyer subject to subdivision (b)
shallmay not represent a client with interests materially adverse to those of a
- 26 -
prospective client in the same or a substantially related matter if the lawyer
received information from the prospective client that could be used to the
disadvantage of that person in the matter, except as provided in subdivision (d). If
a lawyer is disqualified from representation under this rule, no lawyer in a firm
with which that lawyer is associated may knowingly undertake or continue
representation in such athe matter, except as provided in subdivision (d).
(d) Permissible Representation. When the lawyer has received
disqualifying information as defined in subdivision (c), representation is
permissible if:
(1) [No Change]
(2) the lawyer who received the information took reasonable
measures to avoid exposure to more disqualifying information than was reasonably
necessary to determine whether to represent the prospective client; and
(iA) the disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom; and
(iiB) written notice is promptly given to the prospective client.
COMMENT
Prospective clients, like clients, may disclose information to a lawyer, place
documents or other property in the lawyer’s custody, or rely on the lawyer’s
advice. A lawyer’s discussionsconsultations with a prospective client usually are
limited in time and depth and leave both the prospective client and the lawyer free
(and the lawyer sometimes required) to proceed no further. Hence, prospective
clients should receive some but not all of the protection afforded clients.
Not all persons who communicate information to a lawyer are entitled to
protection under this rule.A person becomes a prospective client by consulting
with a lawyer about the possibility of forming a client-lawyer relationship with
respect to a matter. Whether communications, including written, oral, or electronic
communications, constitute a consultation depends on the circumstances. For
example, a consultation is likely to have occurred if a lawyer, either in person or
through the lawyer’s advertising in any medium, specifically requests or invites the
submission of information about a potential representation without clear and
reasonably understandable warnings and cautionary statements that limit the
- 27 -
lawyer’s obligations, and a person provides information in response. In contrast, a
consultation does not occur if a person provides information to a lawyer in
response to advertising that merely describes the lawyer’s education, experience,
areas of practice, and contact information, or provides legal information of general
interest. A person who communicates information unilaterally to a lawyer, without
any reasonable expectation that the lawyer is willing to discuss the possibility of
forming a client-lawyer relationship, is not a “prospective client” within the
meaning of subdivision (a).
It is often necessary for a prospective client to reveal information to the
lawyer during an initial consultation prior to the decision about formation of a
client-lawyer relationship. The lawyer often must learn suchthis information to
determine whether there is a conflict of interest with an existing client and whether
the matter is one that the lawyer is willing to undertake. Subdivision (b) prohibits
the lawyer from using or revealing that information, except as permitted by rule 4-
1.9, even if the client or lawyer decides not to proceed with the representation.
The duty exists regardless of how brief the initial conference may be.
In order to avoid acquiring disqualifying information from a prospective
client, a lawyer considering whether to undertake a new matter should limit the
initial interviewconsultation to only such information as reasonably appears
necessary for that purpose. Where the information indicates that a conflict of
interest or other reason for non-representation exists, the lawyer should so inform
the prospective client or decline the representation. If the prospective client wishes
to retain the lawyer, and if consent is possible under rule 4-1.7, then consent from
all affected present or former clients must be obtained before accepting the
representation.
A lawyer may condition conversationsa consultation with a prospective
client on the person’s informed consent that no information disclosed during the
consultation will prohibit the lawyer from representing a different client in the
matter. See terminology for the definition of informed consent. If the agreement
expressly so provides, the prospective client may also consent to the lawyer’s
subsequent use of information received from the prospective client.
Even in the absence of an agreement, under subdivision (c), the lawyer is not
prohibited from representing a client with interests adverse to those of the
prospective client in the same or a substantially related matter unless the lawyer
has received from the prospective client information that could be used to the
disadvantage of the prospective client in the matter.
- 28 -
Under subdivision (c), the prohibition in this rule is imputed to other lawyers
as provided in rule 4-1.10, but, under subdivision (d)(1), the prohibition and its
imputation may be avoided if the lawyer obtains the informed consent, confirmed
in writing, of both the prospective and affected clients. In the alternative, the
prohibition and its imputation may be avoided if the conditions of subdivision
(d)(2) are met and all disqualified lawyers are timely screened and written notice is
promptly given to the prospective client. See terminology (requirements for
screening procedures). Subdivision (d)(2)(i) does not prohibit the screened lawyer
from receiving a salary or partnership share established by prior independent
agreement, but that lawyer may not receive compensation directly related to the
matter in which the lawyer is disqualified.
Notice, including a general description of the subject matter about which the
lawyer was consulted, and of the screening procedures employed, generally should
be given as soon as practicable after the need for screening becomes apparent.
The duties under this rule presume that the prospective client consults the
lawyer in good faith. A person who consults a lawyer simply with the intent of
disqualifying the lawyer from the matter, with no intent of possibly hiring the
lawyer, has engaged in a sham and should not be able to invoke this rule to create a
disqualification.
For the duty of competence of a lawyer who gives assistance on the merits
of a matter to a prospective client, see rule 4-1.1. For a lawyer’s duties when a
prospective client entrusts valuables or papers to the lawyer’s care, see chapter 5,
Rules Regulating The Florida Bar.
RULE 4-4.4 RESPECT FOR RIGHTS OF THIRD PERSONS
(a) In representing a client, a lawyer shallmay not use means that have no
substantial purpose other than to embarrass, delay, or burden a third person or
knowingly use methods of obtaining evidence that violate the legal rights of such a
person.
(b) A lawyer who receives a document or electronically stored information
relating to the representation of the lawyer’s client and knows or reasonably should
know that the document or electronically stored information was inadvertently sent
shallmust promptly notify the sender.
- 29 -
COMMENT
Responsibility to a client requires a lawyer to subordinate the interests of
others to those of the client, but that responsibility does not imply that a lawyer
may disregard the rights of third persons. It is impractical to catalogue all
suchthese rights, but they include legal restrictions on methods of obtaining
evidence from third persons and unwarranted intrusions into privileged
relationships, such as the client-lawyer relationship.
Subdivision (b) recognizes that lawyers sometimes receive a documents or
electronically stored information that werewas mistakenly sent or produced by
opposing parties or their lawyers. A document or electronically stored information
is inadvertently sent when it is accidentally transmitted, such as when an e-mail or
letter is misaddressed or a document or electronically stored information is
accidentally included with information that was intentionally transmitted. If a
lawyer knows or reasonably should know that such a document or electronically
stored information was sent inadvertently, then this rule requires the lawyer to
promptly notify the sender in order to permit that person to take protective
measures. Whether the lawyer is required to take additional steps, such as
returning the original document or electronically stored information, is a matter of
law beyond the scope of these rules, as is the question of whether the privileged
status of a document or electronically stored information has been waived.
Similarly, this rule does not address the legal duties of a lawyer who receives a
document that the lawyer knows or reasonably should know may have been
wrongfully obtained by the sending person. For purposes of this rule, “document
or electronically stored information” includes, in addition to paper documents, e-
mail and other forms of electronically stored information, including embedded data
(commonly referred to as “metadata”), that is e-mail or other electronic modes of
transmission subject to being read or put into readable form. Metadata in
electronic documents creates an obligation under this rule only if the receiving
lawyer knows or reasonably should know that the metadata was inadvertently sent
to the receiving lawyer.
Some lawyers may choose to return a document or delete electronically
stored information unread, for example, when the lawyer learns before receiving
the document that it was inadvertently sent to the wrong address. Where a lawyer
is not required by applicable law to do so, the decision to voluntarily return such
athe document or delete electronically stored information is a matter of
professional judgment ordinarily reserved to the lawyer. See rules 4-1.2 and 4-1.4.
- 30 -
RULE 4-5.5 UNLICENSED PRACTICE OF LAW;
MULTIJURISDICTIONAL PRACTICE OF LAW
(a) Practice of Law. A lawyer shallmay not practice law in a jurisdiction
other than the lawyer’s home state, in violation of the regulation of the legal
profession in that jurisdiction, or in violation of the regulation of the legal
profession in the lawyer’s home state or assist another in doing so.
(b) Prohibited Conduct. A lawyer who is not admitted to practice in
Florida shallmay not:
(1) – (3) [No Change]
(c) Authorized Temporary Practice by Lawyer Admitted in Another
United States Jurisdiction. A lawyer admitted and authorized to practice law in
another United States jurisdiction who has been neither disbarred or suspended
from practice in any jurisdiction, nor disciplined or held in contempt in Florida by
reason of misconduct committed while engaged in the practice of law permitted
pursuant to this rule, may provide legal services on a temporary basis in Florida
that are:
(1) are undertaken in association with a lawyer who is
admitted to practice in Florida and who actively participates in the matter; or
(2) are in or reasonably related to a pending or potential
proceeding before a tribunal in this or another jurisdiction, if the lawyer is
authorized by law or order to appear in suchthe proceeding or reasonably expects
to be so authorized; or
(3) are in or reasonably related to a pending or potential
arbitration, mediation, or other alternative dispute resolution proceeding in this or
another jurisdiction, and the services are not services for which the forum requires
pro hac vice admission:
(A) – (B) [No Change]
(4) are not within subdivisions (c)(2) or (c)(3), and
- 31 -
(A) – (B) [No Change]
(d) Authorized Temporary Practice by Lawyer Admitted in a Non-
United States Jurisdiction. A lawyer who is admitted only in a non-United States
jurisdiction who is a member in good standing of a recognized legal profession in a
foreign jurisdiction whose members are admitted to practice as lawyers or
counselors at law or the equivalent and are subject to effective regulation and
discipline by a duly constituted professional body or a public authority, and who
has been neither disbarred or suspended from practice in any jurisdiction nor
disciplined or held in contempt in Florida by reason of misconduct committed
while engaged in the practice of law permitted pursuant to this rule does not
engage in the unlicensed practice of law in Florida when on a temporary basis the
lawyer performs services in Florida that are:
(1) are undertaken in association with a lawyer who is admitted to
practice in Florida and who actively participates in the matter; or
(2) are in or reasonably related to a pending or potential proceeding
before a tribunal held or to be held in a jurisdiction outside the United States if the
lawyer is authorized by law or by order of the tribunal to appear in suchthe
proceeding or reasonably expects to be so authorized; or
(3) are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding held or to be held in
Florida or another jurisdiction and the services are not services for which the forum
requires pro hac vice admission:
(A) – (B) [No Change]
(4) are not within subdivisions (d)(2) or (d)(3), and
(A) – (B) [No Change]
(5) are governed primarily by international law or the law of a non-
United States jurisdiction in which the lawyer is a member.
COMMENT
Subdivision (a) applies to unlicensed practice of law by a lawyer, whether
through the lawyer’s direct action or by the lawyer assisting another person. A
- 32 -
lawyer may practice law only in a jurisdiction in which the lawyer is authorized to
practice. A lawyer may be admitted to practice law in a jurisdiction on a regular
basis or may be authorized by court rule or order or by law to practice for a limited
purpose or on a restricted basis. Regardless of whether the lawyer is admitted to
practice law on a regular basis or is practicing as the result of an authorization
granted by court rule or order or by the law, the lawyer must comply with the
standards of ethical and professional conduct set forth in these Rules Regulating
the Florida Bar.
The definition of the practice of law is established by law and varies from
one jurisdiction to another. Whatever the definition, limiting the practice of law to
members of the bar protects the public against rendition of legal services by
unqualified persons. This rule does not prohibit a lawyer from employing the
services of paraprofessionals and delegating functions to them, so long as the
lawyer supervises the delegated work and retains responsibility for their work. See
rule 4-5.3. Likewise, it does not prohibit lawyers from providing professional
advice and instruction to nonlawyers whose employment requires knowledge of
law; for example, claims adjusters, employees of financial or commercial
institutions, social workers, accountants, and persons employed in government
agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro
se.
Other than as authorized by law, a lawyer who is not admitted to practice in
Florida violates subdivision (b) if the lawyer establishes an office or other regular
presence in Florida for the practice of law. This prohibition includes establishing
an office or other regular presence in Florida for the practice of the law of the state
where the lawyer is admitted to practice. For example, a lawyer licensed to
practice law in New York could not establish an office or regular presence in
Florida to practice New York law. Such activity would constitute the unlicensed
practice of law. However, for purposes of this rule, a lawyer licensed in another
jurisdiction who is in Florida for vacation or for a limited period of time, may
provide services to their clients in the jurisdiction where admitted as this does not
constitute a regular presence. Presence may be regular even if the lawyer is not
physically present here. Such aThe lawyer must not hold out to the public or
otherwise represent that the lawyer is admitted to practice law in Florida. Presence
may be regular even if the lawyer is not physically present here.
Subdivision (b) also prohibits a lawyer who is not admitted to practice in
Florida from appearing in a Florida court, before an administrative agency, or
before any other tribunal in Florida unless the lawyer has been granted permission
- 33 -
to do so. In order to be granted the permission, the lawyer must follow the
applicable rules of the court, agency, or tribunal including, without limitation, the
Florida Rules of Judicial Administration governing appearance by foreign
attorneyslawyers. While admission by the Florida court or administrative agency
for the particular case authorizes the lawyer’s appearance in the matter, it does not
act as authorization to allow the establishment of an office in Florida for the
practice of law. Therefore, a lawyer licensed in another jurisdiction admitted in a
case in Florida may not establish an office in Florida while the case is pending and
the lawyer is working on the case.
There are occasions in which a lawyer admitted and authorized to practice in
another United States jurisdiction or in a non-United States jurisdiction may
provide legal services on a temporary basis in Florida under circumstances that do
not create an unreasonable risk to the interests of his or her clients, the public, or
the courts. Subdivisions (c) and (d) identify suchthese circumstances. As
discussed with regard to subdivision (b) above, Tthis rule does not authorize a
lawyer to establish an office or other regular presence in Florida without being
admitted to practice generally here. Furthermore, no lawyer is authorized to
provide legal services pursuant to this rule if the lawyer is disbarred or suspended
from practice in any jurisdiction or has been disciplined or held in contempt in
Florida by reason of misconduct committed while engaged in the practice of law
permitted pursuant to this rule. The contempt must be final and not reversed or
abated.
There is no single test to determine whether a lawyer’s services are provided
on a “temporary basis” in Florida and may therefore be permissible under
subdivision (c). Services may be “temporary” even though the lawyer provides
services in Florida on a recurring basis or for an extended period of time, as when
the lawyer is representing a client in a single lengthy negotiation or litigation.
Subdivision (c) applies to lawyers who are admitted to practice law in any
United States jurisdiction, which includes the District of Columbia and any state,
territory, or commonwealth of the United States. The word "admitted" in
subdivision (c) contemplates that the lawyer is authorized to practice in the
jurisdiction in which the lawyer is admitted and excludes a lawyer who while
technically admitted is not authorized to practice because, for example, the lawyer
is on inactive status. Subdivision (d) applies to lawyers who are admitted to
practice law in a non-United States jurisdiction if the lawyer is a member in good
standing of a recognized legal profession in a foreign jurisdiction, the members of
which are admitted to practice as lawyers or counselors at law or the equivalent
- 34 -
and subject to effective regulation and discipline by a duly constituted professional
body or a public authority. Due to the similarities between the subsections, they
will be discussed together. Differences will be noted.
Subdivisions (c)(1)and (d)(1) recognize that the interests of clients and the
public are protected if a lawyer admitted only in another jurisdiction associates
with a lawyer licensed to practice in Florida. For these subdivisions to apply, the
lawyer admitted to practice in Florida could not serve merely as a conduit for the
out-of-state lawyer, but would have to share actual responsibility for the
representation and actively participate in the representation. To the extent that a
court rule or other law of Florida requires a lawyer who is not admitted to practice
in Florida to obtain admission pro hac vice prior to appearing in court or before a
tribunal or to obtain admission pursuant to applicable rule(s) prior to appearing
before an administrative agency, this rule requires the lawyer to obtain that
authority.
Lawyers not admitted to practice generally in Florida may be authorized by
law or order of a tribunal or an administrative agency to appear before the tribunal
or agency. This authority may be granted pursuant to formal rules governing
admission pro hac vice or pursuant to formal rules of the agency. Under
subdivision (c)(2), a lawyer does not violate this rule when the lawyer appears
before a tribunal or agency pursuant to suchthis authority. As with subdivisions
(c)(1) and (d)(1), to the extent that a court rule or other law of Florida requires a
lawyer who is not admitted to practice in Florida to obtain admission pro hac vice
prior to appearing in court or before a tribunal or to obtain admission pursuant to
applicable rule(s) prior to appearing before an administrative agency, this rule
requires the lawyer to obtain that authority.
Subdivision (c)(2) also provides that a lawyer rendering services in Florida
on a temporary basis does not violate this rule when the lawyer engages in conduct
in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is
authorized to practice law or in which the lawyer reasonably expects to be admitted
pro hac vice. Examples of suchthis conduct include meetings with the client,
interviews of potential witnesses, and the review of documents. Similarly, a lawyer
admitted only in another jurisdiction may engage in conduct temporarily in Florida
in connection with pending litigation in another jurisdiction in which the lawyer is
or reasonably expects to be authorized to appear, including taking depositions in
Florida.
- 35 -
Subdivision (d)(2) is similar to subdivision (c)(2), however, the
authorization in (d)(2) only applies to pending or potential proceedings before a
tribunal to be held outside of the United States.
Subdivisions (c)(3) and (d)(3) permit a lawyer admitted to practice law in
another jurisdiction to perform services on a temporary basis in Florida if those
services are in or reasonably related to a pending or potential arbitration,
mediation, or other alternative dispute resolution proceeding in this or another
jurisdiction, if the services are performed for a client who resides in or has an
office in the lawyer’s home state, or if the services arise out of or are reasonably
related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to
practice. The lawyer, however, must obtain admission pro hac vice in the case of a
court-annexed arbitration or mediation if court rules or law so require. The lawyer
must file a verified statement with The Florida Bar in arbitration proceedings as
required by rule 1-3.11 unless the lawyer is appearing in an international
arbitration as defined in the comment to that rule. A verified statement is not
required if the lawyer first obtained the court’s permission to appear pro hac vice
and the court has retained jurisdiction over the matter. For the purposes of this
rule, a lawyer who is not admitted to practice law in Florida who files more than 3
demands for arbitration or responses to arbitration in separate arbitration
proceedings in a 365-day period shall beis presumed to be providing legal services
on a regular, not temporary, basis; however, this presumption shalldoes not apply
to a lawyer appearing in international arbitrations as defined in the comment to rule
1-3.11.
Subdivision (c)(4) permits a lawyer admitted in another jurisdiction to
provide certain legal services on a temporary basis in Florida that are performed
for a client who resides or has an office in the jurisdiction in which the lawyer is
authorized to practice or arise out of or are reasonably related to the lawyer’s
practice in a jurisdiction in which the lawyer is admitted but are not within
subdivisions (c)(2) or (c)(3). These services include both legal services and
services that nonlawyers may perform but that are considered the practice of law
when performed by lawyers. When performing services which may be performed
by nonlawyers, the lawyer remains subject to the Rules of Professional Conduct.
Subdivisions (c)(3), (d)(3), and (c)(4) require that the services arise out of or
be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer
is admitted. A variety of factors evidence such athis relationship. The lawyer’s
client may have been previously represented by the lawyer, or may be resident in
or have substantial contacts with the jurisdiction in which the lawyer is admitted.
- 36 -
The matter, although involving other jurisdictions, may have a significant
connection with that jurisdiction. In other cases, significant aspects of the lawyer’s
work might be conducted in that jurisdiction or a significant aspect of the matter
may involve the law of that jurisdiction. The necessary relationship might arise
when the client’s activities or the legal issues involve multiple jurisdictions, such
asfor example, when the officers of a multinational corporation survey potential
business sites and seek the services of their lawyer in assessing the relative merits
of each. In addition, the services may draw on the lawyer’s recognized expertise
developed through regular practice of law in a body of law that is applicable to the
client’s particular matter.
Subdivision (d)(4) permits a lawyer admitted in a non-United States
jurisdiction to provide certain services on a temporary basis in Florida that are
performed for a client who resides in or has an office in the jurisdiction where the
lawyer is authorized to practice or arise out of or are reasonably related to a matter
that has a substantial connection to a jurisdiction in which the lawyer is authorized
to practice to the extent of that authorization but are not within subdivisions (d)(2)
and (d)(3). The scope of the work the lawyer could perform under this provision
would be limited to the services the lawyer may perform in the authorizing
jurisdiction. For example, if a German lawyer came to the United States to
negotiate on behalf of a client in Germany, the lawyer would be authorized to
provide only those services that the lawyer is authorized to provide for that client
in Germany. Subdivision (d)(5) permits a lawyer admitted in a non-United States
jurisdiction to provide services in Florida that are governed primarily by
international law or the law of a non-United States jurisdiction in which the lawyer
is a member.
A lawyer who practices law in Florida pursuant to subdivisions (c), (d), or
otherwise is subject to the disciplinary authority of Florida. A lawyer who
practices law in Florida pursuant to subdivision (c) must inform the client that the
lawyer is not licensed to practice law in Florida.
The Supreme Court of Florida has determined that it constitutes the
unlicensed practice of law for a lawyer admitted to practice law in a jurisdiction
other than Florida to advertise to provide legal services in Florida which the lawyer
is not authorized to provide. The rule was adopted in 820 So. 2d 210 (Fla. 2002).
The court first stated the proposition in 762 So. 2d 392, 394 (Fla. 1999).
Subdivisions (c) and (d) do not authorize advertising legal services to prospective
clients in Florida by lawyers who are admitted to practice in jurisdictions other
than Florida. Whether and how lawyers may communicate the availability of their
- 37 -
services to prospective clients in Florida is governed by rules 4-7.1 through 4-
7.10subchapter 4-7.
A lawyer who practices law in Florida is subject to the disciplinary authority
of Florida.
RULE 4-6.5 VOLUNTARY PRO BONO PLAN
(a) [No Change]
(b) Standing Committee on Pro Bono Legal Service. The president-
elect of The Florida Bar is responsible for appointing a standing committee on pro
bono legal service to the poor.
(1) Composition of the Standing Committee. The standing
committee consists of no more than 25 members and includes, but is not be limited
to:
(A) 5 past or current members of the board of governors of
The Florida Bar, 1 of whom is the chair or a member of the access to the legal
system committee of the board of governors;
(B) – (E) [No Change]
(F) 2 public members, 1 of whom shall beis a representative
of the poor;
(G) the president or designee of the Board of Directors of
Florida Legal Services, Inc.; and
(H) 1 representative of the out-of-stateOut-of-State division
of The Florida Bar.; and
(I) the president or designee of the Young Lawyers Division of
The Florida Bar.
(2) [No Change]
- 38 -
(c) Circuit Pro Bono Committees. There will be 1 circuit pro bono
committee in each of the judicial circuits of Florida. In each judicial circuit the
chief judge of the circuit, or the chief judge's designee, shall appoint and convene
the initial circuit pro bono committee and the committee will appoint its chair.
(1) [No Change]
(2) Responsibilities of Circuit Pro Bono Committee. The circuit
pro bono committee will:
(A) – (D) [No Change]
(E) encourage more lawyers to participate in pro bono
activities 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) – (iv) [No Change]
(v) 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) – (viii) [No Change]
(d) Suggested Pro Bono Service Opportunities Pro Bono Service
Opportunities. The following are suggested pro bono service opportunities that
should be included in each circuit plan:
(1) representation of clients through case referral;
(2) interviewing of prospective clients;
(3) participationparticipate in pro se clinics and other clinics in
which lawyers provide advice and counsel;
(4) acting as co-counsel on cases or matters with legal assistance
providers and other pro bono lawyers;
- 39 -
(5) providingprovide consultation services to legal assistance
providers for case reviews and evaluations;
(6) participationparticipate in policy advocacy;
(7) providingprovide training to the staff of legal assistance
providers and other volunteer pro bono attorneys;
(8) makingmake presentations to groups of poor persons regarding
their rights and obligations under the law;
(9) providingprovide legal research;
(10) providingprovide guardian ad litem services;
(11) providingprovide assistance in the formation and operation of
legal entities for groups of poor persons; and
(12) servingserve as a mediator or arbitrator at no fee to the client-
eligible party.
RULE 6-3.7 EMERITUS SPECIALIST STATUS
(a) Purpose. The purpose of emeritus specialist status is to recognize the
past and continuing contribution of a certified lawyer in the advancement of the
speciality area through related career activities that do not constitute the actual
practice of law. For purposes of this rule, the "practice of law" means legal work
performed for purposes of rendering legal services, advice, or representation.
(b) Applicability. An applicant who seeks emeritus specialist status shall:
(1) be currently board certified by The Florida Bar;
(2) be a member of The Florida Bar in good standing;
(3) no longer be engaged in the practice of law; and
(4) otherwise comply with the applicable rules and policies governing
emeritus specialist status.
- 40 -
(c) Qualifications. To qualify for emeritus specialist status, a member
shall:
(1) not engage in the active practice of law;
(2) demonstrate integrity and professionalism, and submit to peer
review as required by the board of legal specialization and education;
(3) promptly report to the board of legal specialization and education
any disciplinary complaints or malpractice actions filed against the member;
(4) file the annual audit and pay the annual fee; and
(5) complete the required application and pay the specified fee.
(d) Communication. As an emeritus specialist, the member must:
(1) refrain from any written or oral communication that might be
misconstrued as client solicitation for legal services; and,
(2) identify emeritus specialist status in all written or oral
communication concerning board certification.
(e) Termination of Emeritus Specialist Status. At such time as the
member elects to resume the practice of law, the member may regain
recertification as a “certified specialist” upon:
(1) completion of all requirements for recertification within a time
frame to be determined by the board of legal specialization and education; and
(2) completion of the required application and payment of the
specified fee.
(f) Waiver. On special application and for good cause shown, the board
of legal specialization and education may waive any portion of this rule if it
determines such a waiver to be in the best interest of the certification program and
emeritus status.
- 41 -
(g) Revocation. Existing rules relating to certification revocation shall
also apply to emeritus specialist status.
(h) Exemption. During the 6 years following the effective date of this
rule, any member formerly certified by The Florida Bar, whose certificate lapsed
or was otherwise not renewed, may apply for emeritus status and qualify for an
exemption from the provision that requires current certification. The applicant
must demonstrate compliance with all other requirements of this rule. An
applicant formerly certified by The Florida Bar, but whose certificate was revoked,
is ineligible for this exemption.
RULE 6-3.11 FEES
(a) [No Change]
(b) Examination/Certification Fee. This fee must be paid before the
taking of the examination for certification or before an applicant who otherwise
qualifies receives a certificate. This fee is not refundable.
(c) Annual Fee. This fee is assessed against each plan participant required
to file an annual audit for a particular year. Collection of the fee shall coincides
with the distribution of annual audit forms.
(d) – (f) [No Change]
(g) Emeritus Application Fee. This fee must accompany the filing of an
application for emeritus specialist status. This fee is not refundable.
(hg) Course Evaluation Fee. This fee is assessed against course sponsors
that seek continuing legal education credit hours required under the plan. This fee
is not refundable.
(ih) Individual Credit Approval Fee. This fee is assessed against
applicants or plan participants to cover administrative costs of processing a credit
request where a sponsor has not sought course approval under the plan.
CHAPTER 6 LEGAL SPECIALIZATION AND EDUCATION PROGRAMS
- 42 -
6-29. STANDARDS FOR BOARD CERTIFICATION IN JUVENILE LAW
RULE 6-29.1 GENERALLY
A lawyer who is an active member in good standing of The Florida Bar and
who meets the standards prescribed below may be issued a certificate identifying
the lawyer as “Board Certified in Juvenile Law.” The purpose of the standards is
to identify those lawyers who practice juvenile law and have the special
knowledge, skills, and proficiency, as well as the character, ethics, and reputation
for professionalism, to be properly identified to the public as board certified in
juvenile law.
RULE 6-29.2 DEFINITIONS
(a) Juvenile Law. “Juvenile law” is the area of law that inherently and
directly impacts children. It includes, but is not limited to, dependency,
delinquency, and termination of parental rights matters. It does not include
adoption matters or matters arising in the context of family law proceedings not
consolidated with dependency or termination of parental rights matters.
(b) Trial. A “trial” is defined as substantially preparing a case for court,
offering testimony or evidence, or cross-examination of witness(es), in an
adversarial proceeding before a trier of fact, and submission of a case to the trier of
fact for determination of the matter.
(c) Appellate proceeding. An “appellate proceeding” is defined as an
action in a state or federal court seeking review of a decision of a lower tribunal.
(d) Practice of Law. The “practice of law” for this area is defined in rule
6-3.5(c)(1).
RULE 6-29.3 MINIMUM STANDARDS
(a) Minimum Period of Practice. The applicant must have been
substantially engaged in the practice of law for at least 5 years immediately
preceding the application date.
(b) Practice Requirements. The practice requirements are as follows:
- 43 -
(1) Substantial Involvement. The applicant must demonstrate
substantial involvement in the practice of juvenile law during 3 of the last 5 years,
immediately preceding application.
(2) Practical Experience. The applicant must demonstrate
substantial practical experience in juvenile law by providing examples of service as
the lead advocate on behalf of a governmental entity, a child, a parent, a guardian,
a foster parent, or a child’s relative with standing to litigate, in a minimum of 20
fully adjudicated trials or appellate proceedings arising from petitions for
dependency, termination of parental rights, or delinquency. If at least 10 of the
trials or appeals required by this provision occurred during the 5 years immediately
preceding application, the requirements of rule 6-29.3(b)(1) are met.
(3) Other Experience. On good cause shown, the juvenile law
certification committee may substitute other experience in juvenile law as defined
for the portion of the trials or appellate proceedings as it deems appropriate. This
experience may include, but is not limited to:
(A) handling school issues, including disciplinary issues and
educational planning matters, participating in placement determinations, and the
development of treatment and alternative plans;
(B) dealing with matters relating to governmental benefits;
(C) advocacy after termination of parental rights;
(D) advocacy before the Florida Department of Children and
Families or other agencies;
(E) advocacy in juvenile delinquency matters other than trial
or appellate proceedings;
(F) representation at administrative proceedings; and
(G) resolving health care matters.
- 44 -
(c) Peer Review.
(1) The applicant must submit the names and addresses of 6
lawyers, who are neither relatives nor current associates or partners nor who
practice in the same governmental entity as the applicant. At least 4 of the
references must be members of The Florida Bar. Individuals serving as references
must have experience in juvenile law and be sufficiently familiar with the applicant
to attest to the applicant’s special competence in juvenile law, as well as the
applicant’s character, ethics, and reputation for professionalism in the practice of
law.
(2) The applicant must submit the name and address of 1 judge
before whom the applicant has appeared in a juvenile law matter within the 5-year
period immediately preceding application to attest to the applicant’s competence in
juvenile law, as well as the applicant’s character, ethics, and reputation for
professionalism.
(3) The board of legal specialization and education and the juvenile
law certification committee may authorize references from persons other than
lawyers and may also make additional inquiries it deems appropriate to determine
the applicant’s qualifications for certification.
(d) Education. The applicant must demonstrate completion of 50 credit
hours of approved continuing legal education in juvenile law during the 3-year
period immediately preceding the date of application. Accreditation of educational
hours is subject to policies established by the juvenile law certification committee
or the board of legal specialization and education.
(e) Examination. The applicant must pass an examination administered
uniformly to all applicants to demonstrate sufficient knowledge, proficiency,
experience, and professionalism in juvenile law to justify the representation of
special competence to the legal profession and the public.
(f) Exemption. An applicant who meets the standards set forth in
subdivisions (a) - (d) of this rule and those of rule 6-3.5(d) are exempt from the
examination. This exemption is only applicable to those applicants who apply
within the first 2 application filing periods from the effective date of these
standards.
- 45 -
RULE 6-29.4 RECERTIFICATION
During the 5-year period immediately preceding application, an applicant
must satisfy the following requirements for recertification:
(a) Substantial Involvement. The applicant must demonstrate continuous
and substantial involvement in juvenile law throughout the period since the last
date of certification or recertification.
(b) Trials or Appellate Actions. The applicant must have had sole or
primary responsibility in at least 10 trials or appellate actions involving juvenile
law. When primary responsibility is used to meet this requirement, the applicant
must specifically identify any co-counsel and demonstrate to the satisfaction of the
juvenile law certification committee that the applicant’s level of participation was
substantial and direct. On good cause shown, the juvenile law certification
committee may substitute other experience for any portion of the trials or appellate
proceedings it deems appropriate. This experience may include, but is not limited
to, the matters set forth in Rule 6-29.3(b)(3). Compliance with this provision
constitutes a prima facie showing of compliance with the requirements of rule 6-
29.4(a).
(c) Education. The applicant must demonstrate completion of at least 50
credit hours of approved continuing legal education in juvenile law certification.
Accreditation of educational hours is subject to policies established by the juvenile
law certification committee or the board of legal specialization and education.
(d) Peer Review.
(1) The applicant must submit the names and address of at least 4
lawyers who are neither relatives nor current associates or partners nor who
practice in the same governmental entity as the applicant, as references to attest to
the applicant’s substantial involvement and competence in juvenile law, as well as
the applicant’s character, ethics, and reputation for professionalism. These
lawyers must have experience in juvenile law and be familiar with the applicant’s
practice.
(2) The applicant must submit the name and address of at least 1
judge before whom the applicant has appeared within the last 5 years to attest to
the applicant’s competence in juvenile law, as well as the applicant’s character,
ethics, and reputation for professionalism.
- 46 -
(3) The juvenile law certification committee may, at its option,
send reference forms to other lawyers and judges, as well as any other person the
committee deems appropriate.
RULE 10-2.1 GENERALLY
Whenever used in these rules the following words or terms shall have the
meaning herein set forth unless the use thereof shall clearly indicate a different
meaning:
(a) – (b) [No Change]
(c) Nonlawyer or Nonattorney. For purposes of this chapter, a
nonlawyer or nonattorney is an individual who is not a member of The Florida Bar.
This includes, but is not limited to, lawyers admitted in other jurisdictions, law
students, law graduates, applicants to The Florida Bar, disbarred lawyers, and
lawyers who have resigned from The Florida Bar. A suspended lawyer, while a
member of The Florida Bar during the period of suspension as provided elsewhere
in these rules, does not have the privilege of practicing law in Florida during the
period of suspension. For purposes of this chapter, it shall constitute the
unlicensed practice of law for a lawyer admitted in a statejurisdiction other than
Florida to advertise to provide legal services in Florida which the lawyer is not
authorized to provide.
(d) – (n) [No Change]
RULE 18-1.1 PURPOSE
The purpose of this chapter is to expand the delivery of legal assistance
services to military personnel stationed in the state of Florida. This chapter
authorizes military attorneyslawyers licensed to practice law in jurisdictions other
than Florida to be certified to practice before Florida courts while formally
assigned as a legal assistance attorneylawyer at a military base in the state of
Florida. Nothing contained in this chapter limits the scope of practice or services
provided by legal assistance lawyers under Title 10, United States Code, section
1044, and applicable service regulations.
- 47 -
RULE 18-1.2 DEFINITIONS
(a) Authorized Legal Assistance AttorneyLawyer. An “authorized legal
assistance attorneylawyer” is any person who:
(1) – (2) [No Change]
(3) is assigned to an installation, unit, and/or activity located within
the geographic limitations of the courts of the state of Florida; and
(4) has completedcompletes The Florida Bar Young Lawyers
Division Practicing with Professionalism program (Basic Skills Course
Requirement) within the time required by rule 6-12.3; and
(5) appears in connection with official duties as a legal assistance
attorneylawyer.
(b) [No Change]
(c) Supervising AttorneyLawyer. A “supervising attorneylawyer” as
used herein is a member in good standing of The Florida Bar who supervises an
authorized legal assistance attorneylawyer engaged in activities permitted by this
chapter. The supervising attorneylawyer must:
(1) be employed by or be a participating volunteer for an approved
legal assistance office (to specifically include military reserve attorneyslawyers);
and
(2) assume personal professional responsibility for supervising the
conduct of the matter, litigation, or administrative proceeding in which the
authorized legal assistance attorneylawyer participates.
(d) Authorized Legal Assistance Client. An “authorized legal assistance
client” is:
(1) – (3) [No Change]
(4) for purposes of settling the affairsthe surviving family members
who are Florida residents of an active duty military member who died while in
- 48 -
active military service for purposes of settling the deceased military member’s
affairs, the surviving family members of such decedent who are otherwise
residents of the state of Florida.
RULE 18-1.3 ACTIVITIES
(a) Permissible Activities. An authorized legal assistance attorneylawyer,
in association with an approved legal assistance office and under the supervision of
a supervising attorneylawyer, may perform the following activities:
(1) appear in any court or before any administrative tribunal in this
state on behalf of an authorized legal assistance client, provided the person on
whose behalf the authorized legal assistance attorneylawyer is appearing has
consented in writing to that appearance and a supervising attorneylawyer has given
written approval for that appearance;
(2) 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
authorized legal assistance attorneylawyer is involved, provided all notices of
appearance, pleadings, and documents bear the attorney’slawyer’s name, the name
of the bar to which admitted, that jurisdiction’s bar number, and the legend “Rule
18 Military Legal Assistance AttorneyLawyer”; or
(3) engage in such other preparatory activities as are necessary for
any matter in which the authorized legal assistance attorneylawyer is involved.
Nothing contained herein shall limit the scope of services provided by legal
assistance attorneys under Title 10, United States Code, section 1044, and
applicable service regulations.
RULE 18-1.4 SUPERVISION AND LIMITATIONS
(a) Supervision by AttorneyLawyer. An authorized legal assistance
attorneylawyer must perform all activities authorized by this chapter under the
supervision of a supervising attorneylawyer.
(b) Representation of Bar Membership Status. Authorized legal
assistance attorneyslawyers permitted to perform services under this chapter are
- 49 -
not, and shallmay not represent themselves to be, members in good standing of The
Florida Bar licensed to practice law in this state.
(c) Range of Legal Issues for Which Representation is Permitted. An
authorized legal assistance attorneylawyer may appear in court on behalf of
authorized legal assistance clients provided the appearance is made concerning a
civil matter limited to 1 of the following actions:
(1) – (6) [No Change]
(7) any other proceedings if otherwise permitted by applicable law
regarding appearances by foreign attorneyslawyers.
RULE 18-1.5 CERTIFICATION
Permission for an authorized legal assistance attorneylawyer to perform
services under this chapter shallwill become effective upon filing with and
approval by the clerk of the Supreme Court of Florida. of: The person seeking
approval must file the following:
(a) a letter from the commanding officer of the approved legal assistance
office stating that the authorized legal assistance attorneylawyer is currently
assigned with that legal assistance office and that an attorneya Florida Bar member
employed by or participating as a volunteer with that legal assistance office will
assume the required duties of the supervising lawyerattorney required hereunder;
(b) a certificate from the highest court or agency in theany state, territory,
or district in which the authorized legal assistance attorneylawyer is licensed to
practice law certifying that the authorized legal assistance attorneylawyer is a
member in good standing and has a clear disciplinary record, and advising of any
pending complaints and/or investigations involving the authorized legal assistance
attorneylawyer; and
(c) a sworn statement by the authorized legal assistance attorneylawyer
that the attorneylawyer:
(1) has read and is familiar withwill abide by chapter 4 of the Rules
Regulating The Florida Bar as adopted by the Supreme Court of Florida and will
abide by the provisions thereof;
- 50 -
(2) has completed or will complete The Florida Bar Young
Lawyers Division Practicing with Professionalism program (Basic Skills Course
Requirement) within the time required by rule 6-12.3; and
(3) submits to the jurisdiction of the Supreme Court of Florida for
disciplinary purposes, as defined by chapter 3 and rule 18-1.7 of the Rules
Regulating The Florida Bar, and authorizes the practitioner’s home state to be
advised of any disciplinary action taken in Florida.
- 51 -