In Re AMENDMENTS TO RULES REGULATING THE FLORIDA BAR 4-1.1 and 6-10.3

Supreme Court of Florida
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No. SC16-574
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IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA BAR
4-1.1 AND 6-10.3.
[September 29, 2016]
PER CURIAM.
This matter is before the Court on the petition of The Florida Bar (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 amendments to two Bar Rules: 4-1.1
(Competence) and 6-10.3 (Minimum Continuing Legal Education Standards). 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.
After considering the Bar’s petition, we adopt these straightforward
amendments as proposed. The comment to rule 4-1.1 (Competence) is amended to
add language providing that competent representation may involve a lawyer’s
association with, or retention of, a non-lawyer advisor with established
technological competence in the relevant field. Competent representation may also
entail safeguarding confidential information related to the representation, including
electronic transmissions and communications. Additionally, we add language to
the comment providing that, in order to maintain the requisite knowledge and skill,
a lawyer should engage in continuing study and education, including an
understanding of the risks and benefits associated with the use of technology.
In rule 6-10.3 (Minimum Continuing Legal Education Standards),
subdivision (a) (Applicability) is amended to clarify when Bar members must
apply and receive approval for an exemption from the continuing legal education
requirements (pursuant to subdivision (c) (Exemptions)), and when the exemption
is automatic. We amend subdivision (b) (Minimum Hourly Continuing Legal
Education Requirements) to change the required number of continuing legal
education credit hours over a three-year period from 30 to 33, with three hours in
an approved technology program. We also amend subdivision (b) to delete
language requiring that courses offering credit in professionalism be approved by
the Center for Professionalism. The Bar’s petition indicates these courses will now
be approved by the Department of Legal Specialization and Education.
Subdivision (g) (Skills Training Preadmission) is amended to change the
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requirement for completing an approved basic skills or entry level training program
presented by a governmental entity from within eight months prior to Bar
admission, to twelve months. Finally, we have made a number of non-substantive
or grammatical amendments throughout rule 6-10.3 to clarify the wording.
Accordingly, the Rules Regulating the Florida Bar are amended as set forth
in the appendix to this opinion. New language is indicated by underscoring;
deletions are indicated by struck-through type. The comments are offered for
explanation only and are not adopted as an official part of the rules. The
amendments shall become effective on January 1, 2017, 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, William J. Schifino, Jr., President,
Ramón A. Abadin, Past-President, Michael Jerome Higer, President-elect
Designate, John Mitchell Stewart, Chair, Vision 2016 Technology Subcommittee,
Lori S. Holcomb, Director, Division of Ethics and Consumer Protection, and
Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida,
for Petitioner
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APPENDIX
RULE 4-1.1 COMPETENCE
A lawyer shallmust provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.
COMMENT
Legal knowledge and skill
In determining whether a lawyer employs the requisite knowledge and skill
in a particular matter, relevant factors include the relative complexity and
specialized nature of the matter, the lawyer’s general experience, the lawyer’s
training and experience in the field in question, the preparation and study the
lawyer is able to give the matter, and whether it is feasible to refer the matter to, or
associate or consult with, a lawyer of established competence in the field in
question. In many instances the required proficiency is that of a general
practitioner. Expertise in a particular field of law may be required in some
circumstances.
A lawyer need not necessarily have special training or prior experience to
handle legal problems of a type with which the lawyer is unfamiliar. A newly
admitted lawyer can be as competent as a practitioner with long experience. Some
important legal skills, such as the analysis of precedent, the evaluation of evidence
and legal drafting, are required in all legal problems. Perhaps the most
fundamental legal skill consists of determining what kind of legal problems a
situation may involve, a skill that necessarily transcends any particular specialized
knowledge. A lawyer can provide adequate representation in a wholly novel field
through necessary study. Competent representation can also be provided through
the association of a lawyer of established competence in the field in question.
Competent representation may also involve the association or retention of a
non-lawyer advisor of established technological competence in the field in
question. Competent representation also involves safeguarding confidential
information relating to the representation, including, but not limited to, electronic
transmissions and communications.
In an emergency a lawyer may give advice or assistance in a matter in which
the lawyer does not have the skill ordinarily required where referral to or
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consultation or association with another lawyer would be impractical. Even in an
emergency, however, assistance should be limited to that reasonably necessary in
the circumstances, for ill-considered action under emergency conditions can
jeopardize the client’s interest.
A lawyer may accept representation where the requisite level of competence
can be achieved by reasonable preparation. This applies as well to a lawyer who is
appointed as counsel for an unrepresented person. See also rule 4-6.2.
Thoroughness and preparation
Competent handling of a particular matter includes inquiry into and analysis
of the factual and legal elements of the problem, and use of methods and
procedures meeting the standards of competent practitioners. It also includes
adequate preparation. The required attention and preparation are determined in
part by what is at stake; major litigation and complex transactions ordinarily
require more extensive treatment than matters of lesser complexity and
consequence. The lawyer should consult with the client about the degree of
thoroughness and the level of preparation required as well as the estimated costs
involved under the circumstances.
Maintaining competence
To maintain the requisite knowledge and skill, a lawyer should keep abreast
of changes in the law and its practice, engage in continuing study and education,
including an understanding of the benefits and risks associated with the use of
technology, and comply with all continuing legal education requirements to which
the lawyer is subject.
RULE 6-10.3 MINIMUM CONTINUING LEGAL EDUCATION
STANDARDS
(a) Applicability. Every member except those exempt under rule 6-
10.3(c)(4) and (5) shallsubdivision (c) of this rule must comply and report
compliance with the continuing legal education requirement. Members must apply
for and receive approval by the bar of an exemption from compliance and reporting
of continuing legal education under subdivisions (c)(1) through (c)(3) of this rule.
Members described in subdivisions (c)(4) through (c)(6) of this rule are
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automatically exempt from compliance and reporting of continuing legal
education.
(b) Minimum Hourly Continuing Legal Education Requirements.
Each member shallmust complete a minimum of 3033 credit hours of approved
continuing legal education activity every 3 years. Five of the 3033 credit hours
must be in approved legal ethics, professionalism, bias elimination, substance
abuse, or mental illness awareness programs and 3 of the 33 credit hours must be
in approved technology programs. Courses offering credit in professionalism must
be approved by the center for professionalism. These 5 hours, which are to be
included in, and not in addition to, the regular 30-hour33 credit hour requirement.
If a member completes more than 3033 credit hours during any reporting cycle, the
excess credits cannot be carried over to the next reporting cycle.
(c) Exemptions. Eligibility for an exemption, in accordance with policies
adopted under this rule, is available for;:
(1) – (4) [No Change]
(5) justices of the Supreme Court of Florida and judges of the
district courts of appeal, circuit courts, and county courts, and such other judicial
officers and employees as may be designated by the Supreme Court of Florida;
and,
(6) [No Change].
(d) Course Approval. Course approval shall beis set forth in policies
adopted pursuant to this rule. Special policies shallwill be adopted for courses
sponsored by governmental agencies for employee attorneys that shall exempt
suchthese courses from any course approval fee and may exempt suchthese courses
from other requirements as determined by the board of legal specialization and
education.
(e) Accreditation of Hours. Accreditation standards shall beare set forth
in the policies adopted under this rule. If aAny course is presented, or sponsored
by or has received credit approval fromapproved for credit by an organized
integrated or voluntary state bar (whether integrated or voluntary), such course
shall beis deemed an approved course for purposes of this rule if the course meets
the criteria for accreditation established by policies adopted under this rule.
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(f) Full-time Government Employees. Credit hours shallwill be given
full-time government employees for courses presented by governmental agencies.
Application for credit approval may be submitted by the full-time government
attorney before or after attendance, without charge.
(g) Skills Training Preadmission. The board of legal specialization and
education may approve for CLER credit a basic skills or entry level training
program developed and presented by a governmental entity. If approved,
creditCredit earned through attendance at suchan approved course developed and
presented by a governmental entity is applicable under subdivision (b) of this rule,
if taken within 812 months prior to admission to The Florida Bar, shall be
applicable under rule 6-10.3(b).
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