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Florida - RULES and OPINIONS

Supreme Court adopts new Rule of Civil Procedure 1.041 to create procedure for lawyer to appear in limited manner in civil proceedings. [Added 12/11/23]

The Florida Supreme Court approved new Florida Rule of Civil Procedure 1.041 to establish a procedure for a lawyer to appear in a limited manner in civil proceedings. The rule had been proposed by the Bar’s Civil Procedure Rules Committee and supported by the Board of Governors. The new rule is effective April 1, 2023.

The Court explained: “The new rule authorizes an attorney to file a notice limiting the attorney’s appearance to particular proceedings or specified matters prior to any appearance before the court. It also explains that during the attorney’s limited appearance, all pleadings must be served on all parties, including the limited appearance attorney. A limited appearance attorney who receives notice of a hearing that is outside the scope of representation must file a notice stating the matter is outside the scope of representation and that the attorney will not attend the court proceeding or hearing. Finally, the rule provides that termination of a limited appearance must be in accordance with Florida Rule of General Practice and Judicial Administration 2.505.” In re: Amendments to Florida Rule of Civil Procedure 1.041 and Form 1.933, __ So.3d __ (Fla., No. SC2023-0361, 12/7/2023), 2023 WL 8461415.

Supreme Court amends Bar rule governing emergency suspensions from practice. [Added 9/8/23]

On its own motion the Florida Supreme Court amended the rule governing emergency suspensions from practice due to great public harm. The Court originally asked the Bar to propose amendments to Rule 3-5.2 to allow emergency suspension when a lawyer was charged with a felony by indictment or information in state or federal court. The Court declined to adopt the proposal offered by the Bar. The Court then proposed its own version of amendments to the rule and circulated it for comment. The Bar, the Florida Public Defender Association, and the Florida Association of Criminal Defense Lawyers provided comments. After considering them, the Court adopted its proposed rule with a modification. The amended rule is effective October 30, 2023.

The new language added to Rule 3-5.2(a)(1) provides: “The fact that a lawyer has been charged with a felony by an indictment or information in state or federal court may, for the purposes of this rule, constitute clear and convincing evidence that the lawyer’s continued practice of law would cause great public harm when such felony charge alleges conduct reflecting adversely on the lawyer’s fitness to practice law.” In re: Amendment to Rule Regulating The Florida Bar 3-5.2, __ So.3d __ (Fla., No. SC2023-0108, 8/31/2023), 2023 WL 5615663.

upreme Court grants Bar’s motion to dismiss Bar’s petition to create “Registered Online Service Provider” program. [Added 8/31/23]

On August 9, 2023, the Florida Supreme Court granted the Florida Bar’s motion to dismiss the Bar’s petition to create a “Registered Online Service Provider” program in Florida.

In December 2019 the Bar had filed a petition asking the Supreme Court to amend the Rules Regulating The Florida Bar to create new Chapter 23, the “Registered Online Service Provider Program” (the “Program”). The new rules were intended to encourage operation of online legal service providers in order to improve access to the legal system for Florida residents.

On August 1, 2023, the Bar filed a Motion to Dismiss its petition. The Bar’s decision to move for dismissal came after two notable actions by the Supreme Court. One was the Court’s decision in Florida Bar v. TIKD Services LLC, 326 So.3d 1073 (Fla. 2021). The other was the Supreme Court’s response to the report of the Florida Bar Special Committee to Improve the Delivery of Legal Services. The Special Committee’s recommendations were largely rejected by the Bar’s Board of Governors and by the Court. The Bar filed the Motion to Dismiss after the Court directed the Bar to file a response stating whether the case should be scheduled for oral argument.

The proposed rules had generated a significant number of negative comments filed by Bar members. Some of the controversial proposals are summarized below.

The proposed rules defined “online service provider” as: “an internet-based business that provides or offers to provide legal services to members of the public.” For purposes of the rule, “legal services” included only: “1) providing legal forms the consumer can complete without a lawyer’s assistance, 2) providing legal forms with the availability of a lawyer to respond to questions from the consumer including assisting the consumer in completing and filing the legal form, and 3) referring the consumer to, or matching a consumer with, a lawyer.”

The proposed rules stated that “it is not the unlicensed practice of law for a website to provide legal forms that are completed with answers to questions generated by the program.”

In a significant departure from longstanding rules, the proposed rules would have allowed sharing of legal fees between an online service provider and a lawyer: “When the services of a registered online service provider include the participation of a lawyer, the registered online service provider may collect the participating lawyer’s fee directly from the consumer, retain its charge imposed on the participating lawyer from the fee collected from the consumer, and remit the remainder to the participating lawyer.” Further, a registered online service provider would have been exempt from the requirement that ads be filed with the Bar for review.

Florida Bar files motion to dismiss petition to create “Registered Online Service Provider” program. [Added 8/1/23]

In December 2019 the Bar filed a petition asking the Supreme Court to amend the Rules Regulating The Florida Bar to create new Chapter 23, the “Registered Online Service Provider Program” (the “Program”). The new rules were intended to encourage operation of online legal service providers in order to improve access to the legal system for Florida residents.

On August 1, 2023, the Bar filed a Motion to Dismiss its petition. The Bar’s decision to move for dismissal came after two notable actions by the Supreme Court. One was the Court’s decision in Florida Bar v. TIKD Services LLC, 326 So.3d 1073 (Fla. 2021). The other was the Supreme Court’s response to the report of the Florida Bar Special Committee to Improve the Delivery of Legal Services. The Special Committee’s recommendations were largely rejected by the Bar’s Board of Governors and by the Court.

The Bar filed the Motion to Dismiss after the Court directed the Bar to file a response stating whether the case should be scheduled for oral argument.
The proposed rules generated a significant number of negative comments filed by Bar members. Some of the controversial provisions are summarized below.

The proposed rules stated that “it is not the unlicensed practice of law for a website to provide legal forms that are completed with answers to questions generated by the program.”

Supreme Court acts on Bar recommendations designed to improve professionalism in the legal profession, including amending CLE requirements. [Added 7/10/23]

In its opinion issued July 6, 2023, the Florida Supreme Court acted on several recommendations that were made by the Florida Bar Special Committee for the Review of Professionalism in Florida and approved by the Bar’s Board of Governors. The Court’s actions, which were designed to enhance professionalism among Florida lawyers, are summarized below.
Code for Resolving Professionalism Referrals. In 2013 the Court adopted a “Code for Resolving Professionalism Complaints.” In re Code for Resolving Professionalism Complaints, 116 So.3d 280 (Fla. 2013). The Court has amended that Code twice; see In re Amendment to Code for Resolving Professionalism Complaints, 156 So.3d 1034 (Fla. 2015); In re Amendments to Code for Resolving Professionalism Complaints, 174 So.3d 995 (Fla. 2015). The Special Committee recommended that the Court replace the 2013 Code with a new code, the “Code for Resolving Professionalism Referrals.” The Court did so, with modifications.

The new Code “will clarify and enhance the important role of local professionalism panels, entities that are independent of The Florida Bar and established in each circuit for the purpose of informally resolving referrals of claimed unprofessional conduct by lawyers practicing in that circuit. Importantly, the code we adopt today clarifies the distinction between the informal local professionalism panel process and the formal grievance process for investigating and adjudicating possible violations of the Florida Rules of Professional Conduct. The Court agrees with the Special Committee that the informal, peer-to-peer mentoring approach offered by local professionalism panels can materially improve professionalism among Florida lawyers.”
A much-debated question over the years has been the meaning of “professionalism.” While the Code does not define this term, it does define “unprofessional conduct” as “a violation of the Standards of Professionalism. The Standards of Professionalism are found in the Oath of Admission to The Florida Bar, The Florida Bar Creed of Professionalism, the Professionalism Expectations, and the Rules Regulating The Florida Bar.” Code, sec. 1.1.
The Code provides that minor or isolated instances of unprofessional conduct may be addressed through the informal process used by the Local Professionalism Panel (“LPP”) in each circuit. A LPP is independent of the Florida Bar, and exists “for the purposed of informally resolving referrals of claimed unprofessional conduct by lawyers practicing in that circuit.” Code, sec. 1.2. The chief judge of each circuit appoints the LPP members, who include judges and experienced local lawyers. Code, sec. 3.1.

If unprofessional conduct is “substantial or repeated,” the LPP may refer it to the Florida Bar “for a disciplinary investigation into whether the formal disciplinary process should be initiated.” If the Bar determines that a particular referral does not warrant disciplinary action, the Bar will refer the matter back to the LLP for handling through the informal process set out in the Code. Code, sec. 1.2.
  LPP members enjoy “absolute immunity from civil liability for all acts in the course and scope of their duties” under the Code. Code, sec. 3.3. To help achieve the goals of consistency and efficiency promoted by the Special Committee, the chairs of each LPP (or their designees) are required to meet every other year to review the Code and make recommendations to the Court regarding changes to forms and procedures used by the LPPs. Code, sec. 3.5. Each LPP must file a written report with the Court twice a year that includes certain information about each referral it received on lawyers or judges, including a summary of the substance of the referral and the outcome of the process. The reports are not to include information that would identify the complaining party or the respondent.” Code, sec. 3.7. The reports will be published on Bar and court websites. Code, sec. 3.8.
  As to the important issue of confidentiality of LPP records and proceedings, the Code provides that “documents and records provided to, and proceedings before, each LPP are confidential.” Should a matter be referred by a LPP to the Florida Bar, however, the Code further provides that “LLP referrals to the bar do not remain confidential under Rule Regulating The Florida Bar 3-7.1.” Code, sec. 3.6. Rule 3-7.1 addresses confidentiality of Bar records at various stages of disciplinary proceedings.
Professionalism Expectations. A document entitled “Professionalism Expectations” was adopted by the Florida Bar Board of Governors in 2015. At the recommendation of the Special Committee, the Court revised the Professionalism Expectations to “emphasize that Florida’s professionalism standards apply to all forms of communication, including online communication, and to both in-person and remote (video or audio) interactions with others.”
  CLE requirements in professionalism. The Special Committee recommended changes to Rule Regulating The Florida Bar 6-10.3(b) to increase the number of required CLE hours in professionalism for Florida lawyers. Agreeing with the proposal in part, the Court amended Rule 6-10.3(b) “to require Bar members to complete, during each reporting cycle, a two-hour legal professionalism course produced by The Florida Bar and approved by this Court. This two-hour course, which the Bar will offer free of charge, replaces the existing one-hour professionalism program requirement.”
  But instead of increasing the total number of required CLE hours as the Special Committee proposed, on its own motion the Court reduced the current requirement of 33 hours per 3-year cycle to 30 hours. “This change restores the required hourly total in place when the Court first imposed mandatory CLE in 1987, and it aligns the total CLE hours requirement for lawyers with the corresponding continuing education requirement for judges.”
  The Court made a second change to the CLE rule. Currently at least 5 of the required CLE hours in each reporting cycle must be in approved programs in “legal ethics, professionalism, bias elimination, substance abuse, or mental health and wellness.” The revised rule removes “bias elimination” from this list. “The Court believes that non-discrimination principles and civility can and should be addressed in the context of legal ethics and professionalism.”
  Notable omissions. The Special Committee’s report to the Court recognized that emphasizing the importance of professionalism to aspiring lawyers before they enter the ranks of the practicing bar is beneficial. The report stated: “Legal education should emphasize professionalism as a significant part of the broader curriculum. Law students must understand and embrace the concept that practicing with professionalism is a requirement, not just an ideal.”
The Special Committee made specific recommendations to the Court in this area. To improve uniformity in professionalism education among Florida law schools, the Special Committee proposed that the Florida Bar produce a professionalism video to be provided to law schools for viewing by students. This Bar-produced program would include: “an explanation of why professionalism matters and how it benefits our legal system; an introduction to the professionalism standards (Oath of Admission, Creed of Professionalism, Professionalism Expectations, the Rules Regulating The Florida Bar, and decisions of the Florida Supreme Court); an introduction to the Henry Latimer Center for Professionalism; an introduction to local professionalism panels; professionalism issues in Florida Bar admission; suggestions on how to develop good professionalism practice while in law school; disciplinary consequences of unprofessional conduct; and profiles and comments on professionalism from prominent lawyers and judges.” Because not all Florida Bar exam applicants attend law school in Florida, the Special Committee further recommended that the Florida Bar produce an online professionalism course that all Florida Bar applicants are required to take.”
  In its opinion, however, the Court did not even mention these law school-related recommendations. This omission is unfortunate, because it seems likely that law students may be more receptive to professionalism education than lawyers.
Effective dates. The amendments regarding the Code for Resolving Professionalism Referrals and the Professionalism Expectations took effect upon the release of the Court’s opinion, and the changes to Rule 6-10.3(b) are effective January 8, 2024. The amendments had not previously been published for comment, so the Court announced that interested persons had 75 days in which to file written comments with the Court.

In re: Code for Resolving Professionalism Referrals and Amendments to Rule Regulating The Florida Bar 6-10.3, __ So.3d __ (Fla., No. SC2023-0884, 7/6/2023), 2023 WL 4359486.

Supreme Court amends lawyer advertising rules regarding disclaimers, presumptively valid content, direct mail communications, and qualifying providers. [Added 6/25/23]

Responding to a petition by the Florida Bar, the Florida Supreme Court amended several lawyer advertising rules. The amendments addressed rules regarding disclaimers, presumptively valid content, direct mail communications, and qualifying providers. The amendments are effective August 21, 2023. Key rule changes are summarized below.
Disclaimers generally. All disclaimers and required information are now required to be “clear and conspicuous.” See Rules 4-7.12(d); 4-7.13(b); 4-7.14(a); 4-7.18(b). “Clear and conspicuous” means that the information “is written, displayed, or presented in such a way that a reasonable person would notice it.” Rule 4-7.12(d). This standard replaces the prior standard (“reasonably prominent” and “prominently displayed”). Additionally, the rules previously mandated use of certain specified language for disclaimers involving dramatizations in ads and use of non-lawyers in ads. The revised rules give the advertiser discretion to craft an appropriate disclaimer that is clear and conspicuous and informs viewers that the ad is a dramatization of a real or fictitious event or that it contains actor portrayals. Rule 4-7.13(b).
Certification disclaimer. The rules previously required that a lawyer who was certified by a specialty certification program accredited by the ABA but not by the Florida Bar could mention that certification or specialization in advertising only if it was accompanied by a specific disclaimer (“Not Certified as a Specialist by The Florida Bar”). That requirement has been deleted. The Court explained: “This disclaimer is unnecessary because the subdivision already requires advertisements claiming board certification to include the certifying entity and area of certification.”
Presumptively valid content. Rule 4-7.16(a) has been revised to add “social media contact information including social media icons or logos” to the list of presumptively valid content in lawyer and qualifying provider advertising.
Direct mail/email communications. There is no longer a requirement that targeted written communications to prospective clients contain a specific first sentence (“If you have already retained a lawyer for this matter, please disregard this letter.”) That requirement was removed because it “is unnecessary as lawyers are permitted to give second opinions to individuals already represented by counsel and subdivision (b)(1)(B) of the rule still prohibits lawyers from sending direct written solicitations if he or she knows or reasonably should know that the individual is represented.” Rule 4-7.18(b).
Qualifying providers. Codifying the Bar’s informal procedures, Rule 4-7.22(d)(12) has been added to specify that a qualifying provider must have “lawyers from at least 4 different law firms participating in the panel or group of lawyers to whom clients are referred.” The Court stated that, “creating this minimum will prevent an individual lawyer from misleading the public by advertising in the guise of a qualifying provider but funneling clients directly to a single firm.” In re: Amendments to Rules Regulating The Florida Bar – Subchapter 4-7 Information About Legal Services, ___ So.3d __ (Fla., No. SC2022-1294, 6/22/2023), 2023 WL 4111368.

Supreme Court grants Bar’s petition to amend confidentiality rule in two respects, including adding provision addressing responses to negative online reviews. [Added 3/16/23]

Responding to a petition for various changes to the Rules Regulating The Florida Bar filed by the Florida Bar, the Florida Supreme Court approved a number of revisions and new rules. The changes are effective May 15, 2023. Among the changes were two amendments to Rule 4-1.6, regarding attorney-client confidentiality.

Rule 4-1.6(b), mandatory exception to confidentiality. Rule 4-1.6(b) contains 2 mandatory exceptions to confidentiality designed to require a lawyer to reveal confidential information to (1) prevent clients from committing crimes and (2) prevent death or substantial bodily harm. The second exception, Rule 4-1.6(b)(2), was “amended to make clear that confidential information must be disclosed to prevent death or substantial bodily harm to anyone, including a client.” The rule as amended will require a lawyer to reveal confidential information to prevent a client from harming himself or herself.

Rule 4-1.6(c), permissive exception to confidentiality. Rule 4-1.6(c)(7) is a new permissive exception that allows lawyers to disclose confidential information to “respond to specific allegations published via the internet by a former client (e.g. a negative online review) that the lawyer has engaged in criminal conduct punishable by law.” The Bar stated that the new rule is designed to be a narrow exception to confidentiality that “strikes an appropriate balance regarding concerns of lawyers that negative online reviews that are not truthful are proliferating and creating reputational issues for lawyers, and the lawyer’s obligations to preserve confidential information relating to a client’s representation.” In re: Amendments to Rules Regulating The Florida Bar – Miscellaneous, __ So.3d __ (Fla., No. SC22-1292, 3/16/2023), 2023 WL 2534009.

Florida Supreme Court amends rules relating to retention and confidentiality of judicial records when judge or justice leaves office. [Added 11/23/22]

On its own motion, the Florida Supreme Court amended rules relating to retention and confidentiality of judicial records when a judge or justice leaves office. Specifically, the Court amended Rule 2.420 of the Rules of General Practice and Judicial Administration and Canon 3(B) of the Code of Judicial Conduct. The Court summarized the changes: “[W]e amend rule 2.420(b)(3) (Custodian) to provide that ‘[a]t the conclusion of service on a court, each justice or judge shall deliver to the court’s chief justice or chief judge any records of the judicial branch in the possession of the departing justice or judge.’ This amendment accounts for justices’ and judges’ departure from the bench and formally relieves them of their role under rule 2.420 as records custodians. We also amend canon 3(B)(12) to provide that ‘[a] former judge is expected to maintain the confidentiality of nonpublic information acquired in a judicial capacity.’ This language is intended to emphasize the expectation of judicial confidentiality beyond retirement and to communicate as much to the public.”

The Court provided a 75-day comment period for interested persons to file written comments on the rules. In re: Amendments to the Florida Rules of General Practice and Judicial Administration and the Code of Judicial Conduct, __ So.3d __ (Fla., No. SC22-1387, 11/17/2022), 2022 WL 16984723.

Florida Bar files 4 petitions to amend various Rules Regulating The Florida Bar with the Supreme Court, inviting comments from interested members. [Added 10/17/22]

On October 3, 2022, the Florida Bar filed a number of rule change requests with the Florida Supreme Court. The Bar filed 4 separate petitions, organized by topic: amendments relating to the Board of Specialization and Legal Education (Case No. SC22-1291); miscellaneous amendments, including proposed amendments to Rule 4-1.6 (confidentiality) and Rule 5-1.1(trust accounting) (Case No. SC22-1292); amendments relating to lawyer discipline (Case No. SC22-1293); and amendments to the lawyer advertising rules (Case No. SC22-1294). Interested Bar members may file written comments with the Supreme Court regarding the proposals within 30 days of the Bar’s filing. Notable rule change proposals are summarized below.

The following 2 proposed rule changes are set out in the Bar’s petition filed in Case No. SC22-1292.

Rule 4-1.6, mandatory exception to confidentiality. Rule 4-1.6(b) currently contains 2 mandatory exceptions to confidentiality. A lawyer must reveal confidentiality information to the extent the lawyer reasonably believes necessary to prevent (1) “a client from committing a crime” or (2) “death or substantial bodily harm to another.” The Bar has proposed eliminating the words “to another” from the second mandatory exception. The stated reason is to make it clear that a lawyer must reveal confidential information to prevent a client from harming himself or herself.

Rule 4-1.6, permissive exception to confidentiality. The Bar has asked the Court to approve a new permissive exception to the confidentiality rule to allow lawyers to disclose confidential information to “respond to specific allegations published via the internet by a former client (e.g. a negative online review) that the lawyer has engaged in criminal conduct punishable by law.” The Bar’s petition states that proposed new Rule 4-1.6(c)(7) is designed to be a narrow exception to confidentiality that “strikes an appropriate balance regarding concerns of lawyers that negative online reviews that are not truthful are proliferating and creating reputational issues for lawyers, and the lawyer’s obligations to preserve confidential information relating to a client’s representation.”

The following proposed rule changes are set out in the Bar’s petition filed in Case No. SC22-1294.

Various advertising rules (4-7.12, 4-7.13, 4-7.14, 4-7.18). Throughout the identified rules, the Bar proposes changing the standard for required written and spoken disclosures from the current “reasonably prominent” standard to a “clear and conspicuous” standard. The Bar’s petition states that “[c]lear and conspicuous is used by the Federal Trade Commission to describe disclaimers, has a body of information regarding its definition and requirements, and will therefore be clearer to bar members and the public.”

Elimination of required “dramatization” disclosure in obvious circumstances. The Bar proposes amending Rule 4-7.13 to eliminate the requirement of a “dramatization” disclaimer in situations where it is obvious from the context that the presentation is a dramatization, reenactment, or fictious event. Proposed amended Rule 4-7.13(b)(6) would state that a disclaimer is required not required unless “a reasonable viewer would not know [the event] is a dramatization from the context of the advertisement.” Additionally, the proposed change to this rule would remove the exact wording requirements currently in the rule for required disclaimers. The Bar’s petition states that “lawyers should have some discretion to use appropriately worded disclaimers that do not match the exact wording required by the rule as long as the chosen disclaimer adequately addresses the circumstances that could potentially mislead consumers.”

Elimination of non-certification disclaimer. Existing Rule 4-7.14(a)(4) requires that lawyers advertising a certification by an entity accredited by the ABA but not the Florida Bar specifically state in the ad that the lawyer is “Not Certified as a Specialist by The Florida Bar.” The Bar’s proposed amendment would eliminate this disclaimer requirement in view of the fact that the rule already requires identification of the certifying entity and area of certification.

Social media contact information added to “presumptively valid content.” The Bar proposes amending the list of “presumptively valid” advertising information in Rule 4-7.16(a) to include “social media contact information including social media icons or logos.” This may be helpful to lawyers because an ad containing only information listed in Rule 4-7.16(a) does not have to be filed with the Bar for review (see Rule 4-7.20(a)).

Changes to the direct contact with prospective clients rule. Rule 4-7.18(b) permits lawyers to engage in direct written contact with prospective clients if the requirements laid out in the rule are followed. The Bar proposes amending this rule in a manner that should broaden the ability of lawyers to communicate with prospective clients.

If the proposals are approved, written communications prompted by a specific occurrence will not have to contain the sentence, “If you have already retained a lawyer for this matter, please disregard this letter.” The Bar’s petition explains that the sentence “is unnecessary and protects other lawyers more than consumers; lawyers are permitted to give second opinions to persons already represented by counsel and there is already a requirement that a lawyer not send direct written solicitations if the lawyer knows or reasonably should know that the intended recipient is already represented in the matter.”
  The current requirement of a “reasonably prominent” marking of “Advertisement” would be changed to a “clear and conspicuous” standard. Proposed amended Rule 4-7.18(b)(2)(B) states that the “advertisement” disclosure “is sufficiently clear and conspicuous if it is written, displayed, or presented in larger and contrasting text relative to other text appearing on the page or any other way that a reasonable consumer should notice it.”
  Under the proposed amendments to Rule 4-7.18(2)(b)(G) and (2)(b)(H), the requirements applicable to written communications that are prompted by a specific event affecting the recipient will apply when the advertising lawyer “knows or reasonably should know” that the event “directly involves or affects” the intended recipient or a family member.
  The rule currently prohibits sending written communications to prospective clients prompted by a specific occurrence that disclose the nature of the recipient’s legal issue on the outside of the communication. The Bar proposes language to the Comment to Rule 4-7.18 that would relax this requirement somewhat in the case of events having widespread impact: “This requirement does not apply where a written communication is prompted by a specific occurrence with widespread impact, such as a hurricane or a flood, where although the communication has been prompted by a specific occurrence, the lawyer neither knows nor has reason to know that the intended recipient was in fact affected by the specific occurrence.”

Changes to the qualifying provider rule. Rule 4-7.22 sets forth the requirements that apply when a lawyer wishes to accept referrals from a “qualifying provider.” Proposed new Rule 4-7.22(d)(12) would effectively impose a minimum number of participating lawyers for a qualifying provider, by prohibiting lawyers from accepting referrals from a qualifying provider unless that provider “has lawyers from at least 4 different law firms participating in the panel or group of lawyers to whom clients are referred.” The Bar’s petition indicates that the purpose of the proposed new requirement is to avoid having a lawyer work with a qualifying provider in a situation that is essentially misleading, stating: “An individual lawyer cannot advertise in the guise of a qualifying provider with no other lawyers from different law firms participating, as that would be misleading. Having a defined minimum number of participating lawyers in the rule would be clearer for qualifying providers and participating lawyers as well as make enforcement of the rule easier.”

Supreme Court amends disciplinary rules to clarify that civil mediation is not available in grievance or reinstatement proceedings. [Added 6/8/22]

The Florida Supreme Court held in Florida Bar re Murtha, 327 So.3d 256 (Fla. 2021), that a referee’s referral of a restatement proceeding to civil mediation was not appropriate. Consistent with Murtha, the Court on its own motion amended two disciplinary procedure rules effective August 1, 2022.
First, new subdivision (f)(3) was added to rule 3-7.6 “to provide that civil mediation is not available to the parties but grievance mediation under chapter 14 is permitted as applicable.” Second, language was added to rule 3-7.10(f) “prohibiting a referee in Bar reinstatement proceedings from referring a petition for reinstatement to civil or grievance mediation.” In re: Amendments to Rules Regulating The Florida Bar – Rules 3-7.6 and 3-7.10, __ So.3d __ (Fla., No. SC22-144, 6/2/2022), 2022 WL 1793688.

Supreme Court amends Rule 4-5.4 to permit not-for-profit legal services providers to organize as corporations with non-lawyers on boards of directors. [Added 6/6/22]

The Special Committee to Improve the Delivery of Legal Services previously made a number of recommendations, one of which was to amend Bar rules “to permit not-for-profit legal service providers to organize as a corporation and to permit nonlawyers to serve on [a] not-for-profit legal service provider’s board of directors.” The Bar’s Board of Governors agreed with this recommendation. On its own motion, the Florida Supreme Court amended Rule 4-5.4 to implement this recommendation.
The Court added new subdivision (f) to Rule 4-5.4, effective August 1, 2022. Subdivision (f)(1) authorizes lawyer to “practice with a not-for-profit business entity authorized to practice law.” In turn, subdivision (f)(2) defines “not-for-profit business entity” as: “[A]n organization providing pro and low bono legal services operating as a tax-exempt public charity authorized by section 501(c)(3) of the Internal Revenue Code with the purpose of providing legal services to clients within 400% of the federal poverty level as defined by the United States Code of Federal Regulations. The lawyer’s compensation by the not-for-profit business entity cannot be tied, directly or indirectly, to the client’s ability to pay.”
Subdivision (f)(4) essentially imposes ethical obligations on the not-for-profit entity, including requiring that the entity: ensure that confidential information is not accessible to board members who are not engaged in client representation; inform clients that all communications may not be protected by the attorney-client privilege; and ensure that all non-lawyers assisting an entity lawyer in providing legal services “abide by the ethical standards governing the lawyer.”
The Court provided a 75-day period within which interest persons may file comments on the rule. In re: Amendments to Rule Regulating The Florida Bar 4-5.4, __ So.3d __ (Fla., No. SC22-607, 6/2/2022), 2022 WL 1792565.

Supreme Court amends Fla.R.Civ.P. 1.442 on own motion to align rule with settlement proposal statutes. [Added 5/27/22]

On its own motion, the Florida Supreme Court published proposed amendments to Fla.R.Civ.P. 1.442, the procedural rule regarding proposals for settlement. The amendments concerned the inclusion of nonmonetary terms in proposals for settlement. After reviewing comments received, the Court amended the rule effective July 1, 2022.
The purpose of the amendments is to align the rule of procedure with the substantive elements of the related statutes. The Court explained: “Section 768.79, Florida Statutes (2021), does not provide for the inclusion of nonmonetary terms in a proposal for settlement. Instead, section 768.79 simply contemplates a comparison of monetary amounts, with subsections (2)(c)-(d) of that statute providing only that a settlement offer must ‘[s]tate its total amount’ and ‘[s]tate with particularity the amount offered to settle a claim for punitive damages, if any.’ . . . However, section 70.001(4)(c), Florida Statutes (2021), contains a list of nonmonetary terms that governmental entities are permitted to include in settlement offers when government action inordinately burdens private property rights, such as ‘[t]he transfer of development rights’ and ‘[l]and swaps or exchanges.’”

Amended Rule 1.442(c)(2) provides: “A proposal shall: . . . exclude nonmonetary terms, with the exceptions of a voluntary dismissal of all claims with prejudice and any other nonmonetary terms permitted by statute; [and] (D) state the total amount of the proposal[.]” In re: Amendments to Florida Rule of Civil Procedure 1.442, __ So.3d __ (Fla., No. SC21-277, 5/26/20220, 2022 WL 1679398.

Responding to Bar's petition, Supreme Court amends bar rules various subjects including lawyer advertising, dealing with clients with diminished capacity, inventory attorneys, and confidentiality in the disciplinary system. [Added 3/4/22]

The Florida Supreme Court amended a number of the Rules Regulating The Florida Bar in response to the Bar’s biennial rules petition filed in October 2020. The Court adopted the rules as proposed, with minor modifications. The rule changes are effective May 2, 2022. Some notable changes are summarized below.

  Rule 1-3.6, Delinquent members. Rule 1-3.6 lists conduct that results in a bar member being “delinquent.” Delinquent members may not practice law during the delinquency period. New Rule 1-3.6(g) provides that a member is delinquent if he or she fails to the file the annual trust account certificate with the Bar required by Chapter 5, Rules Regulating The Florida Bar.
  Rule 1-3.8, Inventory attorneys. Changes to the rule authorizing appointment of an inventory attorney when a lawyer dies or abandons a practice specify that the inventory attorney must maintain confidentiality of the other lawyer’s files and that the inventory attorney has no attorney-client or fiduciary relationship with the clients of the subject lawyer “except for those duties and obligations inherent in the specific tasks undertaken by” the inventory attorney. Further, an inventory “may seek a protective order from the appropriate court or take other action necessary to protect confidential information of the subject lawyer’s clients.” The Bar may pay an inventory a “reasonable fee” for his or her service.
  Rule 3-6.1, Employment of disbarred, suspended, or other non-practicing lawyers. The Court amended Rule 3-6.1, which strictly regulates a lawyer’s employment of someone disbarred or suspended from the practice of law or who is otherwise ineligible to practice. The change adds “lawyers on the inactive list due to incapacity” to the list of lawyers whose employment is regulated under Rule 3-6.1.
  Rule 3-7.1, Confidentiality in the disciplinary system. Existing Rule 3-7.1(j) provides that the fact that a lawyer has voluntarily sought substance abuse or mental health treatment is confidential and inadmissible in a grievance proceeding without the lawyer’s consent. The amended rule expands that confidentiality to include judges and justices.
  Rule 4-1.5, Fees. Amended Rule 4-1.5(f) clarifies that the closing statement required in contingent fee cases “must include an itemization of costs, fees of each lawyer or law firm participating in the fee, and payments to third parties to be paid from the recovery.”
  Rule 4-1.14, Clients with diminished capacity. The Bar proposed amendments to bring Rule 4-1.14 more closely in line with its ABA Model Rules of Professional Conduct counterpart. The term “client with diminished capacity” would replace “client under a disability.” Existing Rule 4-1.14 indicates that a lawyer does not act unethically by seeking appointment of a guardian or taking other protective action for a client with diminished capacity. Amendments to subdivision (b) clarifies that a lawyer “is not required to seek a determination of incapacity or the appointment of a guardian or take other protective action with respect to a client.” Action affecting a client’s rights, such as the appointment of a guardian, may be taken only after the lawyer makes “reasonable efforts to exhaust all other available remedies,” such as consulting with persons with the ability to act to protect the client. The amendments offer more specific guidance to a lawyer about when protective action may be taken, stating that the lawyer must reasonably believe “that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest.”
            New subdivision (c) explains that a lawyer may reveal confidential client information to the extent reasonably necessary to protect the client’s interests, referencing the “implied authorization” provision in existing Rule 4-1.6(a).
            (A similar proposal to amend Rule 4-1.14 had been recommended in 2004 by the Bar’s Special Committee to Review the ABA Model Rules 2002. After adverse comments were received, however, the Bar’s Board of Governors decided not to pursue changing the rule at that time. See The Florida Bar, Petition to Amend The Rules Regulating The Florida Bar (No. SC04-2246); see also In re Amendments to the Rules Regulating The Fla. Bar, 933 So.2d 417, 418, n.2 (Fla. 2006).)
  Rule 4-5.8, Law firm departures or dissolutions. An amendment to the Comment to Rule 4-5.8 replaced existing language about a departing lawyer’s lack of a right to take client files without the firm’s agreement with this sentence: “Ownership of client files may be the subject of contract law and of the employment, partnership, or shareholder agreement between the lawyer and the law firm.” Additionally, the citation to a third case was added to provide additional authority for a statement regarding Florida law on ownership of client files.
  Rule 4-7.13, Deceptive or misleading advertising. New subdivision (b)(12) to Rule 4-7.13 addressed the practice of an advertising lawyer using the name of another, unaffiliated lawyer or law firm as a search term in key word search advertising. The new rule prohibits any “statement or implication” that would mislead someone searching for a particular lawyer or law firm “to unknowingly contact a different lawyer or law firm.” New commentary gives examples of advertising practices that violate the rule. One example is “including the name of a lawyer or law firm that is not part of the advertising law firm in an Internet advertisement or sponsored link that is displayed when the non-affiliated lawyer or law firm’s name is used as a search term when the advertisement does not clearly indicate that the non-affiliated lawyer or law firm is not part of the advertising law firm.”
            A second example of a violation is using the name of another lawyer or law firm “as an Internet search term that triggers the display of an advertisement that does not clearly indicate that the advertisement is for a lawyer or law firm that is not the lawyer or law firm used as the search term.” An advertising lawyer does not violate the rule as long as “the first text displayed is the name of the advertising lawyer or law firm.” When a law firm with a trade name that does not include a lawyer’s name in its ad, the ad would not violate the rule if the name of the lawyer responsible for the ad is displayed as the first text.
  Rule 4-7.18, Solicitation. With very limited exceptions, ethics rules have long prohibited lawyers from engaging in the in-person solicitation of prospective clients. The Court approved amending the Comment to Rule 4-7.18 to create a new exception. Lawyers may “initiate the routine mutual exchange of contact information with prospective clients who are attending the same business or professional conference or meeting or business-related social gathering,” if that the lawyer “initiates no further discussion of a specific legal matter.” A similar exchange of contact information may be made on social media platforms. The Court further stated that, “[t]he comment also makes clear that a lawyer who knows a person has a specific legal problem may not go to a specific event in order to initiate such an exchange and that ‘[a]n accident scene, a hospital room of an injured person, or a doctor’s office are not business or professional conferences or meetings.’”
Rule 7-2.5, Client security fund. The rules of the Bar’s Client Security Fund allow a client whose lawyer provided no useful services to make a claim for the fee they paid to that lawyer. New Rule 7-2.5(e)(2) states that useful services are not rendered by a lawyer hired while suspended or who worked for the client on a new matter started after the lawyer was suspended. New Rule 7-2.5(g) provides that the Fund may deny a claim if the claimant acted with unclean hands.
  Rule 10-2.1, Unlicensed practice of law. Rule 10-2.1(g) was amended to add lawyers whose licenses to practice have been revoked to the list of persons who are considered “nonlawyers” for UPL purposes. In re: Amendments to the Rules Regulating the Florida Bar – Biennial Petition, __ So.3d __ (Fla., No. SC20-1467, 3/3/2022), 2022 WL 620039.

Supreme Court amends Rule 4-5.5 to conform to advisory opinion permitting lawyers licensed in other states to work remotely from Florida for extended time periods on matters not involving Florida. [Added 2/18/22]

In May 2021 the Florida Supreme Court approved a Florida Bar advisory opinion concluding that an out-of-state licensed attorney who lives in Florida, does not hold out to the public as having a presence in Florida for the practice of law, and works remotely on matters not connected to Florida has not engaged in the unlicensed practice of law (“UPL”) in Florida. Florida Bar re Advisory Opinion – Out-of-State Attorney Working Remotely from Florida Home, 318 So.3d 538 (Fla. 2021).

The Court then directed the Bar to consider amending the Comment to Rule 4-5.5 “to identify the circumstances under which an out-of-state licensed attorney may work remotely from Florida.” Accordingly the Bar proposed amendments to Rule 4-5.5 and the Court approved them.

Rule 4-5.5(b) prohibits a non-Florida-licensed lawyer from “establish[ing] an office or other regular presence in Florida for the practice of law” or “hold[ing] out to the public or otherwise represent[ing] that the lawyer is admitted to practice law in Florida.” An out-of-state lawyer who violates this Rule engages in UPL in Florida. To conform to the advisory opinion and clarify what conduct is permissible, the revised Comment to Rule 4-5.5 provides: “For purposes of this rule, a lawyer licensed in another United States jurisdiction does not have a regular presence in Florida for the practice of law when the lawyer works remotely while physically located in Florida for an extended period of time if the lawyer works exclusively on non-Florida matters, and neither the lawyer nor any firm employing the lawyer holds out to the public as having a Florida presence. See Fla. Bar re Advisory Opinion—Out-of-State Att’y Working Remotely from Fla. Home, 318 So.3d 538 (Fla. 2021).”

The rule changes were effective immediately. In re: Amendments to Rule Regulating The Florida Bar 4-5.5, __ So.3d __ (Fla., No. SC21-1379, 2/17/2022), 2022 WL 484063.

Supreme Court finalizes amendment to rule 6-10.3 to preclud granting CLE credit for any courses that use “quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants." [Added 12/17/21]

In April 2021 the Florida Supreme Court, on its own motion, amended CLE rule 6-10.3 to preclude the granting of Florida Bar CLE credit to Florida Bar members who attend programs that use “quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants.” See In re Amendment to Rule Regulating Fla. Bar 6-10.3, 315 So.3d 637 (Fla. 2021). The Court published the rule and invited comments from interested persons. A number of comments were received.

In response to the comments, the Court modified the rule in two respects. “First, First, in deference to Florida Bar members who planned their 2021 CLE activities in reliance on the preamendment status quo, we postpone the effective date of the rule amendment until January 1, 2022. Second, we amend the text to clarify that CLE credit will be unavailable for courses with any sponsor that uses quotas covered by the rule, whether course approval is sought by the sponsor or by an individual bar member.”

The Court noted that “[o]ur laws consider it presumptively wrong to discriminate on these grounds” and explained: “We reject the notion that quotas like these cause no harm. Quotas depart from the American ideal of treating people as unique individuals, rather than as members of groups. Quotas are based on and foster stereotypes. And quotas are divisive.”

The text of rule 6-10.3(d) as amended provides: “Course Approval. Course approval is set forth in policies adopted pursuant to this rule. Special policies will be adopted for courses sponsored by governmental agencies for employee lawyers that exempt these courses from any course approval fee and may exempt these courses from other requirements as determined by the board of legal specialization and education. The board of legal specialization and education may not approve any course with a sponsor, including a section of The Florida Bar, that uses quotas based on race, ethnicity, gender, religion, national origin, disability, or sexual orientation in the selection of course faculty or participants.”

Justice Labarga dissented with an opinion. In re: Amendment to Rule Regulating The Florida Bar 6-10.3, __ So.3d __ (Fla., No. SC21-284, 12/16/2021), 2021 WL

Board of Governors approves Professional Ethics Committee advisory opinion addressing ethical obligations of lawyer in responding to negative online reviews posted by someone who is not lawyer's client or former client. [Added 12/15/21]

At its June 2021 meeting the Professional Ethics Committee approved a proposed advisory opinion addressing the ethical obligations of a lawyer in responding to negative online reviews posted by someone who is not a client or former client of the lawyer. The proposed opinion was published for comment. Comments were received and considered. At its December 2021 meeting the Board of Governors approved Florida Ethics Opinion 21-1.

Opinion 21-1 points out that a lawyer generally owes no duties to a non-client who posts a negative online review of the lawyer and so may (if true) respond by stating that the poster is not a client or former client. Before going further, however, the lawyer must consider whether the proposed response would reveal confidential information about a client or former client. The lawyer may not respond in a way that would reveal such confidential information. Under Rule 4-1.6, confidentiality is broadly defined as any “information relating to representation of a client,” regardless of the source of that information.

Opinion 21-1 suggests the following safe harbor response: “As a lawyer, I am constrained by the Rules Regulating The Florida Bar in responding, but I will simply state that it is my belief that the comments are not accurate.” Florida Ethics Opinion 21-1.

Supreme Court amends rules regarding pro hac vice admission in Florida. [Added 12/14/21]

Responding to a joint petition from the Florida Bar and the Florida Rules of General Practice and Judicial Administration Committee, the Florida Supreme Court amended Rule Regulating The Florida Bar 1-3.10 (Appearance by Non-Florida Lawyer in a Florida Court) and Rule of General Practice and Judicial Administration 2.510 (Foreign Attorneys). The amendments “address repetitiveness between the two rules, ensure consistency between them, and alter the fee structure for pro hac vice admission by establishing an annual renewal fee in addition to the existing application fee – with the amount for both fees to be set by the executive director of the Bar.” On its own motion, the Court added a provision requiring the Bar to give the Court 30 days’ notice before any fee increase. The amended rules are effective February 7, 2022. In re: Amendments to Rule Regulating The Florida Bar 1-3.10 and Florida Rule of General Practice and Judicial Administration 2.510, __ So3d. __ (Fla., No. SC21-722, 12/9/2021), 2021 WL 5832880.

Board of Governors votes to reject recommendations made by Special Committee to Improve Delivery of Legal Services concerning non-lawyer ownership of law firms, fee sharing, and changes to advertising rules. [Added 11/8/21]

After studying the Final Report of the Special Committee to Improve Delivery of Legal Services over the course of two prior meetings, on November 8, 2021, the Board of Governors voted on several of the recommendations made by the Special Committee for the purpose of providing the Board’s input to the Florida Supreme Court. The Board will meet again later in November to address the other recommendations.

Many Board members expressed serious reservations about the recommendations in the Report. A number of commenters observed that, although the Special Committee drew heavily on the experiences in other states (Arizona, Utah, Washington D.C.), there was no evidence that the rule changes in those states had materially expanded access to justice for underserved segments of the public.

The Board’s actions regarding specific recommendations are reported below.

Amend the Rules Regulating The Florida Bar to permit nonlawyers to have ownership interests in law firms. The Special Committee recommended that the Rules be amended to allow nonlawyers to own an equity interest in law firms. The Board of Governors voted unanimously to reject this recommendation.

Amend the Rules Regulating The Florida Bar to permit lawyers to share legal fees with nonlawyers. The Special Committee recommended that the existing prohibition against fee sharing with nonlawyers be changed or removed. The Board of Governors voted unanimously to reject this recommendation.

Amend the lawyer advertising rules. The Special Committee recommended that the lawyer advertising rules be “simplified” by moving many existing regulations from the Rules to the Comments in order to adopt what is essentially a “not false or misleading approach.” The Special Committee also recommended eliminating the requirement that advertisements be filed with the Bar for review in advance of their use. The Board of Governors voted unanimously to reject these recommendations.

Provide more education regarding Rule 4-1.2(c). Existing Rule 4-1.2(c) permits a lawyer and client “to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing.” The Final Report recommended that the Florida Bar promote a better understanding of the available options under Rule 4-1.2(c). The Board voted 77%-23% to approve the Special Committee’s recommendation.

Other recommendations. The remaining Special Committee recommendations that will be addressed by the Board at an upcoming meeting are: establishing a “Lab” to authorize entities other than traditional law firms to provide legal services not permitted under existing Bar rules; amending Bar rules to permit not-for-profit legal services providers to be organized as corporations; and expanding the services that Florida Registered Paralegals are allowed to provide.

Supreme Court approves unique rule creating special disciplinary process for complaints against lawyers instigated by judge’s complaint or comment. [Added 10/25/21]

Acting on a recommendation originally made by the Bar’s “Special Committee on the Examination of the Process and Procedures for Judicial Referrals of Discipline Matters” and approved by the Board of Governors, the Supreme Court adopted a new rule creating a special disciplinary process for the handling of complaints against lawyers that are initiated as a result of a judicial referral. New Rule 3-7.18 is effective December 20, 2021.

Under new Rule 3-7.18, the Board of Governors will review and approve the disposition by Bar staff or grievance committees of complaints made by the judiciary about bar members’ conduct if those complaints did not result in a finding of probable cause or the filing of a formal complaint. This process does not have a counterpart with respect to complaints instigated by non-judicial sources.

If there is a “judicial referral” to the Bar regarding a lawyer’s conduct, and that referral results in a “disposition” short of the filing of a formal complaint or a finding of probable cause, then the Bar’s Board of Governors must review the matter. If the Board rejects the recommended disposition, the Board may “(1) refer the matter to a grievance committee for additional investigation or review; (2) find probable cause, and the case will proceed accordingly; or (3) recommend a different disposition to the Supreme Court.”

The Board must submit its recommendations for approval of judicial referral dispositions to the Supreme Court within 30 days after the Board’s decision, and then the Supreme Court may: “(A) approve the board’s recommended disposition; (B) reject the board’s recommendation, which will be deemed a finding of probable cause and direction to the bar to file a formal complaint; (C) refer the matter back to the board for further review, with or without a recommendation or guidance; or (D) request that the bar provide additional information.”

“Judicial referrals” that can trigger the new rule are inquiries, communications, or complaints questioning a bar member’s conduct that are submitted to the bar by a member of the judiciary, and also include court orders, judgments, or opinions “specifically referring to the bar a matter questioning the conduct of a member of the bar.”

“Dispositions” to which the rule applies include: “(A) decision not to pursue an inquiry; (B) dismissal of a disciplinary case; (C) finding of no probable cause; (D) finding of no probable cause with issuance of a letter of advice; (E) recommendation of diversion; and (F) recommendation of admonishment for minor misconduct.” In re: Amendment to Rules Regulating The Florida Bar – Rule 3-7.18, __ So.3d __ (Fla., No. SC21-653, 10/21/2021).

Supreme Court approves rule change designed to allow Florida Bar to implement electronic filing of lawyer advertisements. [Added 9/9/21]

Effective September 9, 2021, the Florida Supreme Court approved a rule change requested by the Florida Bar relating to the filing of lawyer advertisements for review by the Bar. The Court explained: “Subdivision (a) [of Rule 4-7.19] is amended to allow the Bar to post on the Bar website the location for submission of advertisements for review. This change from requiring advertisements be filed at the Bar’s headquarters address in Tallahassee to designating the submission requirements on the Bar’s website will allow the Bar to implement procedures for online submission of advertisements." In re: Amendments to Rule Regulating The Florida Bar 4-7.19, __ So.3d __ (Fla., No. SC21-775, 9/9/2021), 2021 WL 4096930.

Special Committee to Improve Delivery of Legal Services recommends sweeping changes to regulation of legal services in Florida, including permitting nonlawyer ownership of law firms, allowing fee-sharing with nonlawyers, having paralegals engage in limited practice, authorizing not-for-profit law firms, and streamlining lawyer advertising rules (including eliminating ad filing requirement). [Added 7/2/21]

The Special Committee to Improve the Delivery of Legal Services was created by the Florida Supreme Court in late 2019. The Special Committee was charged with “conduct[ing] a study of the rules governing the practice of law to ensure that [the Court's] regulation meets the needs of Floridians for legal services while also protecting against misconduct and maintaining the strength of Florida's legal profession.” Topics to be addressed by the study were “lawyer advertising; referral fees; fee splitting; entity regulation; regulation of online service providers; and regulation of nonlawyer providers of limited legal services.”

On June 28, 2021, the Special Committee submitted its Final Report to the Court. The Final Report recommends sweeping changes to the regulation of legal services in Florida. The Special Committee’s recommendations for specific action include:

• The Supreme Court should establish a “Law Practice Innovation Laboratory Program” (“Lab”), sometimes called a “regulatory sandbox,” to permit the practice of law through entities, persons, activities, and structures that are not permitted under existing Bar rules.

• The Florida Bar should undertake to promote better understanding of Rule 4-1.2(c), which permits lawyers to represent clients on a limited-scope basis.

Equally important are the Special Committee’s far-reaching recommendations that were “approved in concept.” Among these recommendations are that the Supreme Court should:

• Amend Rule 4-5.4 to permit nonlawyers to have a ownership interest in law firms.

• Amend Rule 4-5.4 to permit lawyers to share legal fees with nonlawyers.

• Amend the Rules Regulating The Florida Bar to permit non-profit law firms.

• Approve substantial revisions to the lawyer advertising rules, including eliminating the requirement that ads be filed with the Florida Bar for review.

• Create a pilot program to allow Florida Registered Paralegals to provide limited legal services in specific areas of law.

The Special Committee apparently focused exclusively on how Bar regulations affect the ability of existing lawyers to provide legal services, with or without participation of nonlawyers from other professions. Notably, the Final Report omits discussion of the substantial barriers to entering the legal profession that are presented by existing law school accreditation procedures and bar admission requirements. In this regard, it may be noted that the board of bar examiners in one state (Oregon) recently approved a report calling for its state supreme court to create alternative paths to lawyer licensure. Under the proposal, applicants to the bar could be licensed through a traditional bar exam, a new law school experiential learning program, or supervised practice with a licensed lawyer. (Seven other jurisdictions already have a rule authorizing law office study as a path to licensure.) It seems that any comprehensive approach to making access to legal services more widely available to the public should consider ways to lower entry barriers to the legal profession that are faced by aspiring lawyers.

Details on the Special Committee’s recommendations are provided below.

Establishment of Lab to authorize entities other than traditional law firms to provide legal services not now permitted under Bar rules. The Lab is the centerpiece of the Special Committee’s proposals. It is based on a process adopted last year by the Utah Supreme Court. The Lab would be under the direction of a Commission established by the Supreme Court. Day-to-day operation would be handled by a supervisory body. The Final Report recommends that “the Court delegate the regulatory objective and authority to both the Commission and the supervisory body to The Florida Bar with the Court always maintaining supervision and ultimate authority much in the way lawyer regulation and discipline is structured.” The Lab would have an initial period of 3 years, with the possibility of extending that period if the results are deemed to be successful.

The Lab is intended to be a program that allows the supervisory body “to selectively modify current rules or regulations to see how much and what kinds of innovation might be possible within the legal services market to benefit the public. Modified regulatory enforcement in the Lab can allow alternate business structures, existing law firms, technology platforms and individuals etc. to experiment with offering new legal services in a way that may not otherwise be permitted because of regulatory obstacles or uncertainty as to how the current rules may apply to proposed new models.”

Entities interested in operating under the Lab umbrella would go through an application process that requires explaining their proposals, identifying benefits and risks to the public, describing how risks and benefits will be measured, and filing periodic status reports with the Commission. Initial funding of the Lab would come from the Florida Bar, with the goal of funding the program primarily through fees collected by participants. Fees may be waived for non-profit entities.

After an entity’s application is accepted, it would operate within the Lab for a certain time period during which data on the entity’s operation will be gathered and assessed. “Once the participant’s designated period operating within the Lab finishes, the participant may be granted a license by the Court in which case the participant can continue with its approved services with the non-enforcement authorization still intact.” The Final Report stressed that once an authorized entity exits the Lab it may continue to operate even after the 3-year period for the Lab expires (absent evidence of consumer harm). Appendix E of the Final Report presents a detailed outline of the Lab proposal.

Promoting better understanding of limited-scope representation under Rule 4-1.2(c). Existing Rule 4-1.2(c) permits a lawyer and client “to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing.” The Final Report accurately observes that this ability to offer limited-scope legal services is “underutilized” by lawyers. The suggested solution is for the Florida Bar to promote better understanding among its members of the available options under Rule 4-1.2(c).

Amending Rule 4-5.4 to permit nonlawyers to have an ownership interest in law firms. The Special Committee recommends that Rule 4-5.4 be amended to allow nonlawyers to own an equity interest in law firms. The Final Report suggests that conditions be adopted along with this change, such as limiting nonlawyer ownership of a law firm to less than a controlling interest and requiring that the nonlawyers’ work “actively support the work of the law firm.” In this regard, the proposal is similar to what is currently allowed in the District of Columbia. The Special Committee specifically recommends that passive ownership of law firms by nonlawyers not be permitted.

Amending Rule 4-5.4 permit lawyers to share legal fees with nonlawyers. The Final Report concludes that the long-standing rule prohibiting lawyers from sharing legal fees with nonlawyers is an impediment to the delivery of legal services. Accordingly, the Special Committee recommends that “perhaps the best approach is to eliminate or modify the fee sharing restrictions, but only as part of a pilot program or Law Practice Innovation Laboratory Program.” Appendix B of the Final Report presents a proposed revision of Rule 4-5.4.

Perhaps reflecting the Bar’s antipathy to nonlawyer-operated lawyer referral services, the proposed amendments to Rule 4-5.4 do not treat “qualifying providers” the same as other nonlawyers who might work with lawyers in connection with the provision of legal services. Rather, the proposed amendments seem tilted toward large technology companies who have moved into aspects of the legal marketplace (e.g., LegalZoom, Avvo, Willing.com). The Final Report does not explain why such entities should be treated differently from other nonlawyer entities, despite the fact that the marketing advantages held by large tech-based entities can generate a fertile source of referrals opportunities to lawyers. Perhaps a more equitable approach would be to simply encourage any interested nonlawyer persons or entities to apply for authorization under the proposed Lab process and judge each application on its merits.

Amending Bar rules to permit non-profit law firms. The Special Committee recommends “amending the rules to permit not-for-profit legal service providers to organize as a corporation and to permit nonlawyers to serve on the not-for profit legal service provider’s board of directors.” Appendix B of the Final Report presents a proposed revision of Rule 4-5.4.

Substantially revising lawyer advertising rules. Appendix C (redline version) and Appendix D (clean version) to the Final Report present a proposed revision of the lawyer advertising rules. The recommended changes are based largely on revisions to the ABA model advertising rules authored by the Association of Professional Responsibility Lawyers (APRL). Among the recommended changes are elimination of the requirement that lawyers file their advertisements with the Florida Bar for review. Instead, voluntary submission of ads would be permitted under a “safe harbor” provision that would prohibit the Bar from disciplining a lawyer for an ad that had been found compliant. Perhaps surprisingly, lawyers would still be charged $150 per ad for a voluntary filing; keeping this charge would seem to discourage lawyers from voluntarily submitting their ads, especially since written ethics opinions on non-advertising topics are available from the Bar at no charge.

The proposed revised ad rules retain the basic prohibition against false and misleading advertising while moving most of the specific regulations contained in the current rules to the Comments. The Special Committee has proposed “other notable deletions to outdated requirements in the rules, for example, the use of celebrities in advertisements; deletions to language regarding presumptively valid content in advertisements; and deletions to required content in advertisements.”

The Special Committee recommended that Rule 4-7.17 (Payment for Advertising and Promotion) and Rule 4-7.22 (Referrals, Directories and Pooled Advertising) “not be amended at this time” but noted that, if changes were made to Rule 4-5.4 and the advertising rules, “these rules may have to be revisited.”

Creating pilot program allowing Florida Registered Paralegals to provide limited legal services in specific areas. The Special Committee concluded that nonlawyers should be permitted to provide legal services subject to certain restrictions. The Final Report recommends that the Court approve “a pilot program allowing Florida Registered Paralegals to provide limited legal services in specific areas and within a law office.”

Authorized areas of law under this program could include “family law, residential landlord tenant law on behalf of the tenant, guardianship law, wills, advance directives, Baker Act, Marchman Act, guardian advocate of the person only, or debt collection defense.” A supervising lawyer would be responsible for the work of the paralegal. Specific services that may be authorized for performance by paralegals include form selection and completion (including related advice) and assistance with court proceedings (though not including appearing for clients in court). Appendix D to the Final Report presents an outline of the Paralegal Pilot Program.

Action on the Special Committee’s recommendations will be up to the Supreme Court. Although not addressed in the Special Committee’s Final Report, the Board of Governors may offer its views on the recommendations. The Final Report acknowledges that the most recent comprehensive survey of Florida Bar members indicates that a majority of Florida lawyers are opposed to changes in the rules that prohibit fee-sharing with nonlawyers and shows that a substantial majority of lawyers oppose allowing nonlawyers to own or invest in law firms. Any changes to the Rules Regulating The Florida Bar typically are published for comment from interested Bar members.

Watch sunEthics.com for updates.

Bar Professional Ethics Committee approves for publication proposed advisory opinion addressing ethical obligations of lawyer in responding to negative online reviews posted by someone who is not lawyer's client or former client. [Added 6/11/21]

At its meeting on June 10, 2021, the Florida Bar Professional Ethics Committee approved Proposed Advisory Opinion 21-1 for publication. PAO 21-1 addresses the ethical obligations of a lawyer in responding to negative online reviews posted by someone who is not a client or former client of the lawyer.

A lawyer generally owes no duties to a non-client who posts a negative online review of the lawyer and so may, if true, respond by stating that the poster is not a client or former client. Before going further, however, the lawyer must consider whether the proposed response would reveal confidential information about a client or former client. The lawyer may not respond in a way that would reveal such confidential information. Under Rule 4-1.6, confidentiality is broadly defined as any “information relating to representation of a client,” regardless of the source of that information.

PAO 21-1 suggests the following safe harbor response: “As a lawyer, I am constrained by the Rules Regulating The Florida Bar in responding, but I will simply state that it is my belief that the comments are not accurate.”

PAO 21-1 will be published in the Florida Bar News along with a notice inviting comments from interested Bar members. If any comments are received, they will be considered by the Professional Ethics Committee at its next meeting.

Watch sunEthics.com for updates.

Supreme Court approves rule changes regarding appointments to Bar ethics and advertising committees, and expands electronic signatures to more aspects of Bar functions. [Added 5/14/21]

Responding to a petition from the Florida Bar, the Florida Supreme Court approved rule changes regarding appointments to Bar ethics and advertising committees. The Court also approved new rules defining “writing” and “signed” in the context of Bar functions. The changes are effective July 1, 2021. A sunEthics.com summary of the changes appears below.

Committee appointments. The Bar proposed amending rules to provide that the Supreme Court, rather than the Bar leadership, appoints members of the Professional Ethics Committee. The Bar’s petition stated that this change was designed to “provide[] additional Court oversight to the ethics advice and advertising review programs.” Presumably the impetus behind the proposal was the United States Supreme Court’s antitrust decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 574 U.S. 494 (2015). New Bylaw 2-9.4(f) provides: “The Supreme Court of Florida appoints members of the Professional Ethics Committee with advice from the bar’s president or president-elect.” For consistency, on its own motion the Court amended Rule 15-2.1 to provide that the Court appoints members of the Standing Committee on Advertising.

Definitions of “writing” and “signed.” The Rules of Professional Conduct were previously amended to broadly define “writing,” “written,” and “signed” to include authentication of documents in a variety of formats such as electronic communications. The Court added new Bylaw 2-11.1 to make it clear that these definitions “apply to Bar functions regulated by chapter 2 [of the Rules Regulating The Florida Bar], as well as to client representations regulated by chapter 4 (the Rules of Professional Conduct.]” In re: Amendments to Rules Regulating The Florida Bar – Bylaws 2-8.1, 2-9.4, and 2-11.1, __ So.3d __ (Fla., No. SC21-6, 5/13/2021), 2021 WL 1916521.

Professional Ethics Committee approves proposed confidentiality rule amendment to authorize limited responses to negative online reviews, adopts new proposed advisory opinions on using web-based payment processing services and obligations of lawyer appointed to represent alleged incapacitated person in emergency guardianship proceeding, and modifies long-standing opinion on providing case file materials to clients and former clients. [Added 3/26/21]

At its meeting on March 23, 2021, the Florida Bar Professional Ethics Committee took actions on several items of interest to bar members. The Committee approved a proposed confidentiality rule amendment to authorize responses to negative online criticism, adopted new proposed advisory opinions on using web-based payment processing services and the obligations of a lawyer appointed to represent an alleged incapacitated person in an emergency guardianship proceeding, and modified a long-standing opinion on providing case file information to clients. Additionally, the Committee discussed a draft of a proposed advisory opinion regarding whether and how a lawyer may respond to negative online reviews posted by non-clients.

The proposed rule change will be forwarded to the Board of Governors for Board consideration. The proposed advisory opinions will be published in the Florida Bar News along with a notice inviting interested bar member to submit comments. Any comments received will be considered by the Committee at its next meeting.

A sunEthics.com summary of these developments appears below.

Proposed confidentiality rule amendment to authorize limited responses to negative online criticism. In Florida Ethics Opinion 20-1, the Committee noted that Rule 4-1.6 does not permit a lawyer to disclose confidential information in responding to negative online reviews posted by clients or former clients. Confidential information is broadly defined under Rule 4-1.6(a) as all “information relating to the representation,” regardless of the source of that information. It can even include the fact of representation. No exceptions under current Rule 4-1.6 permit disclosure of confidential information to respond to a negative review.

Believing that a lawyer who is falsely accused on the internet of serious impropriety should have recourse, the Committee approved a proposed amendment to Rule 4-1.6 that would permit a limited response under specific circumstances. Proposed Rule 4-1.6(c)(7) would provide: "A lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary to: . . . (7) respond to specific allegations published via the internet by a former client (e.g. a negative online review) alleging the lawyer has engaged in criminal conduct punishable by law." A proposed addition to the Comment to Rule 4-1.6 would further explain: "Subdivision (c)(7) allows a lawyer to respond to specific allegations published via the internet by a former client (e.g. a negative online review) alleging the lawyer has engaged in criminal conduct punishable by law. However, under subdivision (f), even when the lawyer is operating within the scope of the (c)(7) exception, disclosure must be no greater than the lawyer reasonably believes necessary to refute the specific allegations."

The proposed rule change will be considered by the Board of Governors and, if approved by the Board, will be submitted to the Florida Supreme Court.

Proposed advisory opinion on using web-based payment processing services. The Bar’s Ethics Department regularly receives questions about whether or under what conditions lawyers are permitted to receive payments to their operating or trust accounts via third party web-based payment processing services. Examples of such services include LawPay, Venmo, PayPal, and others. To address these questions, the Committee adopted Proposed Advisory Opinion (“PAO”) 21-2.

PAO 21-2 contains a detailed discussion of the ethical issues that must be considered when accepting payments via a third party web-based processing service. The PAO concludes that lawyers ethically may accept payments through these services under the following conditions: reasonable steps are taken to protect against inadvertent or unwanted disclosure of information regarding the transaction; the funds of clients and other persons are managed in compliance with the trust accounting rules; and unless the client agrees otherwise, any transaction charges are paid by the lawyer.

Proposed advisory opinion on the obligations of a lawyer appointed to represent an alleged incapacitated person in an emergency guardianship proceeding. A lawyer who was appointed by a court to represent an alleged incapacitated person in a petition for emergency temporary guardianship asked the Bar for guidance. The proceedings may be held ex parte under F.S. 744.3031(2). The lawyer asked how to ethically represent the client when the court orders the hearing be held ex parte or when a hearing is held before the lawyer is able to contact or communicate with the client. The Committee responded by adopting PAO 21-3.

After discussing the ethical issues presented, PAO 21-3 concludes with this summary: "[T]he inquirer’s obligations under the rules may be harmonized with statutory requirements even where the inquirer is unable to communicate with the client, either by time constraints or court order. The inquirer still must investigate as reasonably practicable under the circumstances, cross examine the petitioner’s witnesses, test the petitioner’s evidence, present any appropriate testimony or other evidence found during investigation, ensure that the petitioner proves all essential elements of the guardianship, protect the client’s procedural rights, and, if the hearing is held ex parte, that the petitioner has met the burden of establishing the necessity of the ex parte proceeding under the statute. The inquirer must then notify the client of the proceedings and their outcome."

Proposed modifications to an existing advisory opinion on providing case file materials to clients and former clients. In response to a request from Bar ethics staff, the Committee adopted revisions to Florida Ethics Opinion 88-1 (Reconsideration) to provide updated guidance on charging for retrieval of file information in addition to copying charges and on what file material should be provided to clients or former clients when they request it. (The modifications do not address the portion of the Opinion that addresses a lawyer’s retaining lien.)

The proposed modifications to Opinion 88-1 conclude that a lawyer may charge a reasonable amount for the cost of retrieving and delivering file materials. The Committee suggests that these charges be addressed in the original representation agreement.

File items that a lawyer should consider providing on request include things like: documents filed in court; executed instruments prepared for the client; correspondence relating to the matter that appears necessary to protect the client’s interests; electronic data that the lawyer determines is necessary to protect the client’s interests; discovery paid for by the client; legal opinions issued at the client’s request; and billing statements.

The Committee concluded that a client or former client generally is not entitled to: confidential information about other clients; internal administrative materials such as conflicts checks, work assignments, personal notes, and assessments or impressions of clients; drafts of documents and legal instruments; unexecuted documents; consultations about malpractice or ethics; or internal legal memoranda and research materials.

Discussion about a proposed advisory opinion regarding whether and how a lawyer may respond to negative online reviews posted by non-clients. The Board of Governors has directed the Committee to prepare a proposed advisory opinion on the issue of whether, or how, a lawyer may respond to negative online reviews about the lawyer that are posted by persons who are not clients or former clients. The Committee reviewed a draft prepared by a subcommittee. After discussion, the Committee referred the draft back to the subcommittee for further refinement. The Committee will take up the matter at its next meeting, which is scheduled for June 2021. For a Florida Bar News article on the discussion, click here.

Supreme Court amends and renames Rules of Judicial Administration, addressing judicial disqualification, creating disqualification through adding counsel, and appearance of “stand-in counsel.” [Added 1/27/21]

The Florida Supreme Court acted on the regular-cycle report filed by the Florida Bar Rules of Judicial Administration Committee by approving most of the amendments recommended by the Committee. The revisions are effective March 1, 2021. Some of the revisions are summarized below.

Renaming the rules. Revised rule 2.110 changes the name of the rules to “Florida Rules of General Practice and Judicial Administration,” abbreviated as “Fla. R. Gen. Prac.& Jud. Admin.”

Judicial disqualification motions. Revised rule 2.330(c)(2) now requires a party moving for judicial disqualification to “identify the precise date when the facts constituting the grounds for the motion were discovered by the party or the party’s counsel, whichever is earlier.” Per new rule 2.330(d), motions must be promptly served on the judge as set forth in rule 2.516.

Grounds for judicial disqualification. New rule 2.330(e) sets out a list of non-exclusive grounds that may support disqualification, including: the movant reasonably fears he or she will not get a fair “because of specifically described prejudice or bias of the judge;” the judge or a closely related person is interested in the case or is a lawyer or material witness; (3) the judge or a lawyer the judge practiced with served as a lawyer in the matter, or the judge was the lower court judge in the case; or the judge has prior personal knowledge of or bias regarding disputed evidentiary facts in the case.

Creating grounds for judicial disqualification. New rule 2.330(f) has been added “to eliminate the ability of manipulation by practitioners who create grounds for disqualification through the appearance of substitute or additional counsel.” A party that adds or substitutes counsel is prohibited from moving to disqualify the judge based on the new lawyer’s involvement in the case.

Appearances of attorneys. Rule 2.505(e) is amended to list various ways in which a lawyer may appear in a case (e.g., filing the first pleading or document, filing a notice of appearance or notice of limited appearance, being substituted by order or notice). The rule specifies that a notice of substitution of substitution is not required when the substituting lawyer is from the same law firm, company, or agency as the replaced lawyer.

“Stand-In Counsel.” New rule 2.505(g) recognizes “stand-in counsel” and provides a procedure for appearance of such counsel. The rule provides: “An attorney may stand in for another attorney to cover a proceeding or hearing only if a notice of stand-in counsel is filed or the appearance of stand-in counsel is reflected on a record maintained by the court or by the clerk of court. A stand-in attorney from the same law firm, company, or governmental agency as an attorney of record is not required to file a notice of stand-in counsel.” In re: Amendments to the Florida Rules of Judicial Administration – 2020 Regular-Cycle Report, __ So.3d __ (Fla., No. SC20-165, 1/21/2021), 2021 WL 208450.

Professional Ethics Committee slightly revises proposed advisory opinion on responding to negative online reviews. [Added 11/16/20]

At its October meeting, the Professional Ethics Committee considered comments from interested Bar members regarding Proposed Advisory Opinion (“PAO”) 20-1. With the increasing importance of online reviews of goods and services, many lawyers are concerned about responding effectively but ethically to negative reviews. PAO 20-1 was approved by the Committee at its February 2020 meeting. The PAO takes a cautious approach, concluding that the permissive exceptions to confidentiality in existing Rule 4-1.6(c) do not cover relying to online reviews. After reviewing decisions by ethics committees and courts in other states, PAO 20-1 as originally approved opined that it is ethically permissible for a lawyer who is the subject of a negative online review to respond online by stating: “A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.”

PAO 20-1 was published for comment and several Bar members provided written comments. The Committee considered those comments and voted to revise PAO 20-1 by adding the following as an alternative response that may be published online: “As an attorney, I am constrained by the Rules Regulating The Florida Bar from responding in detail, but I will simply state that it is my belief that the [comments/post] present neither a fair nor accurate picture of what occurred and I believe that the [comments/post] [is/are] false.”

The Professional Ethics Committee also created a subcommittee to review existing Rule 4-1.6 and recommend whether the rule should be broadened to address the issue of responding to online reviews.

PAO 20-1 as revised will become final unless any of the Bar members who submitted written comments to the Committee choose to seek review by the Board of Governors.

Bar files biennial rule change petition with Supreme Court, seeking rule amendments relating to fees, clients with diminished capacity, client files, advertising, solicitation, and other topics. [Added 10/8/20]

On October 5, 2020, the Florida Bar filed its biennial rule change petition with the Supreme Court. The Bar has asked the Court to approve rule amendments that address topics including fees, clients with diminished capacity, client files, advertising, and solicitation. Interested bar members have 30 days in which to file written comments with the Court. Below is a sunEthics.com summary of significant proposed amendments.

Rule 1-3.6, Delinquent members. Rule 1-3.6 lists conduct that will result in a bar member being found “delinquent.” Delinquent members are prohibited from practicing law during the period of delinquency. Proposed new Rule 1-3.6(g) would make a member delinquent if he or she fails to the file the annual trust account certificate with the Bar as required by Chapter 5, Rules Regulating The Florida Bar.

Rule 1-3.8, Inventory attorneys. The Bar’s proposed changes to the rule that authorizes appointment of an inventory attorney when a lawyer dies or abandons a practice specify that the inventory attorney must maintain confidentiality of the other lawyer’s files and that the inventory attorney does not have an attorney-client or fiduciary relationship with the clients of the subject lawyer “except for those duties and obligations inherent in the specific tasks undertaken by” the inventory attorney.

Rule 3-6.1, Employment of disbarred, suspended, or other non-practicing lawyers. The Bar proposed an amendment to Rule 3-6.1, which strictly regulates a lawyer’s employment of someone who has been disbarred or suspended from the practice of law or who is otherwise ineligible to practice. The proposed change would add “lawyers on the inactive list due to incapacity” to the list of those lawyers whose employment is regulated under Rule 3-6.1.

Rule 3-7.1, Confidentiality in the disciplinary system. Under current Rule 3-7.1(j), the fact that a lawyer has voluntarily sought substance abuse or mental health treatment is considered confidential and inadmissible in a grievance proceeding without the lawyer’s consent. The Bar’s proposed amendment would expand that confidentiality to include judges and justices.

Rule 4-1.5, Fees. The Bar proposed amending Rule 4-1.5(f) to clarify that the closing statement required in contingent fee cases “must include an itemization of costs, fees of each lawyer or law firm participating in the fee, and payments to third parties to be paid from the recovery.”

Rule 4-1.14, Clients with diminished capacity. The Bar proposed amendments to bring Rule 4-1.14 more closely in line with its ABA Model Rules of Professional Conduct counterpart. The term “client with diminished capacity” would replace “client under a disability.

While the existing version of Rule 4-1.14 indicates that a lawyer does not act unethically by seeking appointment of a guardian or taking other protective action for a client with diminished capacity, the proposed amendments to subdivision (b) clarify that a lawyer “is not required to seek a determination of incapacity or the appointment of a guardian or take other protective action with respect to a client.” Action that affects a client’s rights, such as the appointment of a guardian, may be taken only after the lawyer makes “reasonable efforts to exhaust all other available remedies,” such as consulting with persons who have the ability to act to protect the client. The proposed amendments also provide more specific guidance to a lawyer about when protective action may be taken, stating that the lawyer must reasonably believe “that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest.”

Proposed new subdivision (c) would be added to expressly provide that a lawyer may reveal confidential client information to the extent reasonably necessary to protect the client’s interests. The new subdivision references the “implied authorization” provision in existing Rule 4-1.6(a).

A similar proposal to amend Rule 4-1.14 was recommended in 2004 by the Florida Bar Special Committee to Review the ABA Model Rules 2002. After adverse comments were received on that proposal, however, the Bar’s Board of Governors decided not to pursue changing Rule 4-1.14 at that time. See The Florida Bar, Petition to Amend The Rules Regulating The Florida Bar (No. SC04-2246); see also In re Amendments to the Rules Regulating The Fla. Bar, 933 So. 2d 417, 418, n.2 (Fla. 2006).

Rule 4-5.8, Law firm departures or dissolutions. The Bar proposed amending the portion of the Comment to Rule 4-5.8 concerning ownership of client files. A citation to a third case would be added as additional authority for the statement regarding the Florida rule about ownership of client files. The proposed change also would replace existing language about a departing lawyer’s lack of a right to take client files without the firm’s agreement with this sentence: “Ownership of client files may be the subject of contract law and of the employment, partnership, or shareholder agreement between the lawyer and the law firm.”

Rule 4-7.13, Deceptive or misleading advertising. The Bar proposed adding new subdivision (b)(12) to Rule 4-7.13 to address the practice of an advertising lawyer using the name of another, unaffiliated lawyer or law firm as a search term in key word search advertising. The new rule would prohibit any “statement or implication” that would mislead someone searching for a particular lawyer or law firm “to unknowingly contact a different lawyer or law firm.” The proposed commentary to the new rule gives examples of advertising practices that would violate the rule. One example is “including the name of a lawyer or law firm that is not part of the advertising law firm in an Internet advertisement or sponsored link that is displayed when the non-affiliated lawyer or law firm’s name is used as a search term when the advertisement does not clearly indicate that the non-affiliated lawyer or law firm is not part of the advertising law firm.”

A second example is using the name of another lawyer or law firm “as an Internet search term that triggers the display of an advertisement that does not clearly indicate that the advertisement is for a lawyer or law firm that is not the lawyer or law firm used as the search term.” The proposed Comment goes on to specify that the advertising lawyer does not violate the rule “if the first text displayed is the name of the advertising lawyer or law firm.” When an advertising law firm that operates under a trade name that does not include a lawyer’s name, the ad will not violate the rule if the name of the lawyer responsible for the ad is displayed as the first text.

Rule 4-7.18, Solicitation. With very limited exceptions, ethics rules have long prohibited lawyers from engaging in the in-person solicitation of prospective clients. The Bar proposed a change to the Comment to Rule 4-7.18 to create another exception. Lawyers would be permitted to “initiate the routine mutual exchange of contact information with prospective clients who are attending the same business or professional conference or meeting or business-related social gathering,” provided that the lawyer “initiates no further discussion of a specific legal matter.” A similar exchange of contact information may be made on social media platforms. The new Comment appears to be intended to be narrowly construed, as it further specifies that “[a]n accident scene, a hospital room of an injured person, or a doctor’s office are not business or professional conferences or meetings within the meaning of” the new exception.

Rule 7-2.5, Client security fund. The rules of the Bar’s Client Security Fund allow a client whose lawyer provided no useful services to make a claim for the fee they paid to that lawyer. Proposed Rule 7-2.5(e)(2) states that useful services are not rendered by a lawyer who was hired while suspended or who worked for the client on a new matter that was begun after the lawyer was suspended. Proposed new Rule 7-2.5(g) provides that the Fund may deny a claim if the claimant acted with unclean hands.

Rule 10-2.1, Unlicensed practice of law. The Bar proposed amending Rule 10-2.1(g) to add lawyers whose licenses to practice have been revoked to the list of persons who are considered “nonlawyers” for UPL purposes.

Supreme Court tightens rules that apply when lawyers or law firms employ lawyers who have been suspended or disbarred. [Added 6/3/20]

Acting on a petition from the Florida Bar, the Florida Supreme Court amended Rule 3-6.1, which governs a law firm’s employment of a lawyer who has been suspended or disbarred. The Bar’s petition was submitted in response to a request from the Court. The amendments are effective July 27, 2020.

The existing rule imposed a 3-year prohibition on suspended or disbarred lawyers being employed or supervised by a lawyer whom the disciplined lawyer had employed or supervised prior to the imposition of the disciplinary sanction. Revised Rule 3-6.1(b) makes that prohibition a permanent one.

The revised rule also tightens restrictions on what the suspended or disbarred lawyer is permitted to do while employed by a law firm. The existing rule prohibited “direct contact” with clients, while revised Rule 3-6.1(d)(1) bans “communication in any manner” with clients. Revised Rule 3-6.1(d)(2) expands the existing restrictions on the disciplined lawyer’s handling of trust funds or property, adding that the disciplined lawyer may not act as a fiduciary for funds or property of former clients, current of former clients of his or her employer, or current or former clients of any entity in which the employer “is a beneficial owner.”

Finally, new Rule 3-6.1(f) specifies that any lawyer who supervises the disciplined lawyer must be a Florida Bar member in good standing, be employed full-time by the entity that employs the disciplined lawyer, and be “actively engaged in the supervision of” the disciplined lawyer. In re: Amendments to Rule Regulating The Florida Bar – Rule 3-6.1, __ So.3d __ (Fla., No. SC19-1688, 5/28/2020), 2020 WL 2759744.

Supreme Court approves rule permitting spouses of military service members to practice as certified legal interns while undergoing character and fitness review pending authorization to practice in Florida. [Added 5/26/20]

In 2018 the Supreme Court approved new Chapter 21 of the Rules Regulating The Florida Bar, creating a process permitting spouses of active duty military personnel residing in Florida to be authorized to practice law in Florida for up to 5 years without taking the bar examination. See In re Amendments to the Rules Regulating the Florida Bar and the Rules of the Supreme Court of Florida Relating to Admissions to the Bar – Military Spouse Rules, 249 So.3d 1256 (Fla. 2018).

Prompted by a request from a Public Defender, the Court asked the Bar to consider whether Chapter 21 should be amended to permit a service member’s spouse who has applied for authorization to engage in the supervised practice of law as a certified legal intern until the Board of Bar Examiners completes its character and fitness review and the applicant is authorized to practice. The Board of Governors studied the matter and then petitioned the Court to approve such a rule.

Effective July 20, 2020, the Court approved the proposal and amended Rule 21-4.1 to add new subdivision (c), which provides: “Temporary Certification. A military spouse who has made application under this rule may be certified by the Supreme Court of Florida to act as a certified legal intern while the application for certification as a military spouse lawyer is pending. A military spouse applicant certified as a legal intern must be a member of an out-of-state bar in good standing, employed by or in a mentorship relationship with a member of The Florida Bar who is eligible to practice law in Florida, and submit to the jurisdiction of the Supreme Court of Florida for disciplinary purposes. Certification as a legal intern will terminate on certification of the applicant as a military spouse lawyer or on denial of certification as a military spouse lawyer.” In re: Amendment to Rule Regulating the Florida Bar 21-4.1, __ So.3d __ (Fla., No. SC19-1861, 5/21/2020), 2020 WL 2569713.

On its own motion, Supreme Court amends Rules Regulating The Florida Bar to provide new procedure for responding to future public health and other emergency situations. [Added 4/15/20]

On its own motion, the Florida Supreme Court amended the Rules Regulating The Florida Bar to specifically provide a procedure by which the Chief Justice may to take steps relating to the Bar rules in response to a public health or other emergency. The Court noted that the amendment to Rule 1-1.12 will allow “a more streamlined response to the changing circumstances affecting The Florida Bar’s and Bar participants’ ability to comply with certain rule requirements during the COVID-19 pandemic” and “also will provide a more expeditious procedure for responding to future public health crises and other emergency situations that could impact The Florida Bar and others who are governed by the procedural requirements of the Bar Rules.”

On March 20, 2020, the Court issued an emergency order temporarily suspending certain time periods, deadlines, and requirements in the Rules Regulating The Florida Bar. Among other things, that order “temporarily suspended all time periods and deadlines in Chapter 3 (Rules of Discipline) and Chapter 10 (Rules Governing the Investigation and Prosecution of the Unlicensed Practice of Law) of the Bar Rules for all Bar discipline cases and for all unlicensed practice of law cases, respectively, and suspended the filing and evaluation requirements for lawyer advertisements under Rule Regulating the Florida Bar 4-7.19 (Evaluation of Advertisements).”

In a follow-up order issued April 9, 2020, the Court reinstated most deadlines in the Bar’s grievance and UPL regulation but extended the suspension of the lawyer advertising filing and review requirements. Specifically, the April 9 order stated the following:

“1. The following time periods, deadlines, and requirements suspended in the Court’s March 20, 2020, order shall remain suspended until May 29, 2020:

A. All time periods and deadlines in Bar Rule 3-7.16 (Limitation on Time to Open Investigation).

B. The filing and evaluation requirements for lawyer advertisements under Rule Regulating the Florida Bar 4-7.19 (Evaluation of Advertisements).

2. Any other time period or deadline in Chapters 3 or 10 of the Bar Rules suspended by the Court’s March 20, 2020, order, other than those time periods or deadlines that remain suspended under paragraphs 1(A) of this order, is reinstated to its original time period or deadline. However, if the applicable time period or deadline elapsed during the term of the suspension or that time period or deadline will expire within 7 days after the date of this order, that time period or deadline is extended until April 24, 2020.”

The text of new Rule 1-1.12(j) provides: “Upon request of The Florida Bar, or sua sponte, in the event of a public health emergency or other emergency situation that requires mitigation of the effects of the emergency on The Florida Bar and other participants under the Rules Regulating the Florida Bar, the chief justice may enter such order or orders as may be appropriate to: suspend, extend, toll, or otherwise change time periods, deadlines, or standards imposed by the Rules Regulating the Florida Bar, orders, or opinions; suspend the application of or modify other requirements or limitations imposed by rules, orders, or opinions, including, without limitation, those governing the use of communication equipment and proceedings conducted by remote electronic means; and require or authorize temporary implementation of procedures and other measures, which may be inconsistent with applicable requirements, to address the emergency situation.” In re: COVID-19 Emergency Measures Relating to the Rules Regulating The Florida Bar and Amendment to Rule Regulating The Florida Bar 1-12.1, __ So.3d __ (Fla., No. SC20-392, 4/9/2020), 2020 WL 1802822.

Florida Bar Professional Ethics Committee addresses interstate law firms that operate in Florida, lawyers working with public adjusters, a former court employee’s access to court documents, lawyers’ responses to negative online reviews, and proposed amendments to the client-with-diminished-capacity rule. [Added 2/11/20]

At its meeting in Orlando on February 7, 2020, the Florida Bar Professional Ethics Committee took action on a number of items. Notable actions by the Committee are summarized below.

Lawyers’ responses to negative online reviews. With the increasing importance of online reviews of goods and services, many lawyers are concerned about responding effectively but ethically to negative reviews. The Professional Ethics Committee voted to publish guidance in the form of a proposed advisory opinion (“PAO”). Proposed Advisory Opinion 20-1 takes a cautious approach that applies Rule 4-1.6(c), which sets forth permissive exceptions to a lawyer’s ethical duty of confidentiality. After reviewing decisions by ethics committees and courts in other states, the PAO concludes it is ethically permissible for a lawyer who is the subject of a negative online review to respond online by stating: “A lawyer’s duty to keep client confidences has few exceptions and in an abundance of caution I do not feel at liberty to respond in a point by point fashion in this forum. Suffice it to say that I do not believe that the post presents a fair and accurate picture of the events.” The lawyer also may state that he or she disagrees with the facts stated in the review.

PAO 20-1 will be published in the Florida Bar News for comments from interested Bar members. Any comments must be review by the Professional Ethics Committee at its June 2020 meeting.

Interstate law firms with a Florida office. Since 1978 the primary authority in Florida for regulations applicable to interstate law firms that open a Florida office has been the Florida Supreme Court’s opinion in Savitt v. Florida Bar, 363 So.2d 559 (Fla. 1978). The Savitt case was based on the Supreme Court's authority to regulate the unauthorized practice of law; it did not apply the lawyer ethics rules.

Recently the Florida Bar staff issued an informal staff opinion to a lawyer asking about an office of an interstate law firm in Florida. The staff opinion interpreted Savitt and offered conclusions about whether the terms of Savitt were complied with by the inquiring attorney. The Professional Ethics Committee meeting on Friday, Feb. 7, an overwhelming majority of the Committee voted to quash the staff opinion and simply direct the inquiring lawyer that the question was controlled by Savitt.

Lawyers and public adjusters. An inquiring attorney who might be referred cases from a public adjuster asked the Florida Bar staff for an advisory opinion regarding protecting fees that the public adjuster claimed were due to the adjuster from the clients. The inquirer was dissatisfied with the staff opinion and asked that it be reviewed by the Professional Ethics Committee. The staff opinion referred the inquirer to Florida Ethics Opinion 92-3, which discouraged working relationships between lawyers and public adjusters. Despite referring to Opinion 92-3, the staff opinion concluded that the inquiring attorney was not ethically prohibited “from continuing representation of a client although the inquirer knows that a client will pay a contingent fee to the public adjuster as long as: 1) the client’s contingent fee agreement with a public adjuster pre-dated the inquirer’s representation of the client, 2) there was no improper solicitation or referral by a public adjuster to the inquirer, 3) the client is paying under the client’s original contract with a public adjuster, 4) the inquirer does not have an arrangement with the public adjuster as in Florida Ethics Opinion 92-3, and 5) there is no payment of any incentive to a public adjuster for the public adjuster's testimony.”

The Professional Ethics Committee affirmed the staff opinion with a slight modification.

Former court employee’s access to court documents. The Professional Ethics Committee affirmed Bar staff’s decision to decline to issue a staff opinion to an inquiring attorney who previously worked for a court and, after leaving, wanted the court to provide the inquirer with copies of the inquirer’s “legal files” from the court.

Proposed amendments to the client-with-diminished-capacity rule. The Professional Ethics Committee voted to agree with proposed changes to Rule 4-1.14, concerning a lawyer’s ethical obligations when dealing with clients with diminished capacity. The proposed changes were sponsored by the Real Property Probate and Trust Law Section of the Bar. The proposals are similar to those approved in 2005 by the Florida Bar Special Committee to Review ABA Ethics 2000 Model Rules.

Florida Bar Procedures for Ruling on Questions of Ethics revised to permit out-of-state lawyers who are authorized to practice in Florida to obtain Bar advisory ethics opinions. [Added 1/21/20]

At its December 2019 meeting, the Florida Bar Board of Governors amended the Florida Bar Procedures for Ruling on Questions of Ethics, which govern the procedures under which the Bar issues of advisory ethics opinions.

The Procedures were revised to broaden the categories of persons to whom the Bar may issue advisory ethics opinions. Previously, only Florida Bar members (in good standing) could request opinions. There are some out-of-state members who are not Florida Bar members but are legally authorized to practice in Florida. These persons are subject to the Florida ethics rules, and so the Procedures were revised to enable them to obtain Florida Bar guidance regarding their compliance with those rules.

Oral advisory opinions from Bar staff may be requested by “lawyers admitted in other jurisdictions who are authorized by other law to provide legal services in Florida.” Written advisory opinions may be requested from the Bar by “admitted in other jurisdictions who are authorized house counsel and foreign legal consultants in good standing whose status can be verified by records maintained by The Florida Bar.”

Bar petitions Supreme Court for approval of new rules creating “Registered Online Service Provider” program. [Added 1/3/20]

  On December 12, 2019, the Bar filed a petition asking the Supreme Court to amend the Rules Regulating The Florida Bar to create new Chapter 23, the “Registered Online Service Provider Program” (the “Program”). The new rules are intended to encourage operation of online legal service providers in order to improve access to the legal system for Florida residents.

            Proposed Rule 23-2.1(a) defines “online service provider” as: “an internet-based business that provides or offers to provide legal services to members of the public.” For purposes of the new rule, “legal services” include only: “1) providing legal forms the consumer can complete without a lawyer’s assistance, 2) providing legal forms with the availability of a lawyer to respond to questions from the consumer including assisting the consumer in completing and filing the legal form, and 3) referring the consumer to, or matching a consumer with, a lawyer.”

            As to the first manner of providing legal services, the Bar’s Petition indicates that it will not pursue unlicensed practice of law claims against entities that operate online to provide legal forms and assistance in completing those forms, stating that “it is not the unlicensed practice of law for a website to provide legal forms that are completed with answers to questions generated by the program.”

            The Bar does not have direct regulatory authority over nonlawyer service providers, so the Program would encourage online service providers to register voluntarily and “agree to the regulated by The Florida Bar and the Supreme Court of Florida.” The Program offers an incentive for voluntary participation by allowing registered providers to “advertise that they are registered with The Florida Bar and . . . use an approved logo.”

            Proposed Chapter 23 addresses the interplay between a “qualifying provider” operating under Rule 4-7.22 and the new “online service provider” concept. Per Proposed Rule 23-3.1, if an online service provider is also a qualifying provider, the online service provider must follow Rule 4-7.22 with two important exceptions: “[1] an online service provider may advertise, charge, and collect fees as provided elsewhere in this rule and [2] is not required to file advertisements with The Florida Bar for review.”

In a significant departure from longstanding rules, Proposed Rule 23-7.1(c) would allow sharing of legal fees between an online service provider and a lawyer: “When the services of a registered online service provider include the participation of a lawyer, the registered online service provider may collect the participating lawyer’s fee directly from the consumer, retain its charge imposed on the participating lawyer from the fee collected from the consumer, and remit the remainder to the participating lawyer.”

            Further, a registered online service provider would be exempt from the requirement that ads be filed with the Bar for review. (The filing-and-review requirement applies to lawyers and to qualifying providers that do not register under Chapter 23.) If a registered online service provider is not also a qualifying provider, the online service provider will be exempt from all Bar advertising and solicitation rules. See Proposed Rule 23-4.1.

            Other sections of Proposed Rule 23-7.1 further address fees charged by a registered online service provider. When a lawyer participates in its services, the online service provider may charge the participating lawyer a fee that is “reasonable and based on the registered online service provider’s costs for marketing and administration and may allow a reasonable profit,” although a fee “must be imposed regardless of whether the lawyer is hired by the consumer.” Proposed Rule 23-7.1(a). A fee charged by a registered online service provider “may not be based on the perceived or actual value of the consumer’s legal matter or on the outcome of the services provided.” Proposed Rule 23-7.1(b).

            For purposes of public protection, the proposed rules provide that a registered online service provider must: identify forms that are approved by the Supreme Court or reviewed and approved by a bar member; require consumers to affirmatively acknowledge before proceeding that communications with the online service provider may not be protected by attorney-client privilege or as work product; inform consumers of its process for submitting and resolving complaints; and require consumers to affirmatively acknowledge before proceeding that they have been informed of the ways (if any) that the online service provider intends to use and share the consumer’s personal and legal information. Proposed Rule 23-6.1(a)-(d).

            To register for the Program, an online service provider must submit an application to the Bar that includes: the provider’s name and URL; a description of services offered; consumer complaint contact information; certifications that the provider will not interfere with participating lawyers’ independent professional judgment or activities in representing clients, will submit to jurisdiction in a Florida forum for dispute resolution, and will give the Bar copies of consumer complaints and information about how they were resolved; and fee as set by the Bar. Proposed Rule 23-4.1.

            A registered online service provider must renew registration annually and update material information on an ongoing basis. Proposed Rules 23-4.2, 23-4.3. Proposed Rule 23-8.1 provides that granting registration of an online service provider “is solely at the discretion of The Florida Bar and may be revoked.” Grounds for revocation may include non-payment of registration fees, failure to update information, and consumer complaints.

The proposed rules do not become effective unless and until approved by the Supreme Court. Watch sunEthics.com for updates.

Supreme Court adopts new Rule of Judicial Administration 2.570 providing for parental leave continuances in cases except criminal, juvenile, and involuntary civil commitment of sexually violent predators matters. [Added 12/19/19]

The Florida Supreme Court approved a modified version of a proposal submitted by the Bar’s Rules of Judicial Administration Committee and supported by the Bar’s Board of Governors. The new rule is effective January 1, 2020.

Subdivision (a) of new Rule of Judicial Administration 2.570 provides that a court, unless it makes a finding specified in the rule regarding prejudice or delay, “shall grant a timely motion for continuance based on the parental leave of the movant’s lead attorney in the case, due to the birth or adoption of a child, if the motion is made within a reasonable time after the later of” the lead attorney learning of the basis for the continuance or the scheduling of the matter or proceeding for which the continuance is sought. Subdivision (c) sets the presumptive time for the continuance as 3 months. Subdivision (b) lists the requirements of the motion.

Per subdivision (d), if a non-moving party objects and makes a prima facie showing of prejudice, the burden then shifts to the movant “to demonstrate that the prejudice to the requesting party caused by the denial of the motion exceeds the prejudice that would be caused to the objecting party if the requested continuance were granted.” Subdivision (e) authorizes the court to deny the continuance or to grant one different in length or scope upon a finding that another party “would be substantially prejudiced by the requested continuance” or that the continuance “would unreasonably delay an emergency or time-sensitive” matter.

Finally, subdivision (f) exempts criminal, juvenile, and involuntary civil commitment of sexually violent predator cases from the requirements of new rule 2.570. Motions for parental leave continuances in those cases generally will be governed by Fla.R.Jud.Admin. 2.545(e) and applicable rules of criminal, juvenile, or civil procedure. In re: Amendments to the Florida Rules of Judicial Administration – Parental Leave, __ So.3d __ (Fla., No. SC18-1554, 12/19/2019), 2019 WL 6906467.

Supreme Court amends Registered Paralegal Program rules to allow lawyers from any state other than Florida to become registered paralegals. [Added 9/25/19]

The Florida Supreme Court approved the Florida Bar’s petition to amend Rule 20-3.1, “Requirements for Registration” for the Florida Registered Paralegal Program. The existing rule had allowed lawyers who were members in good standing “with a state bar association other than Florida’s.” That rule “unintentionally precluded lawyers from the nineteen states where state bar membership is not mandatory” from becoming Florida Registered Paralegals. The revised rule corrects that limitation by permitting lawyers with “licensure in good standing in a United States jurisdiction other than Florida” to participate in the program.

The rule change took effect on September 19, 2019. In re: Amendments to Rule Regulating The Florida Bar 20-3.1 (Requirements for Registration), __ So.3d __ (Fla., No. SC19-520, 9/19/2019), 2019 WL 4493493.

Supreme Court approves amendments to Rule 4-7.14 to permit non-certified lawyers, and law firms, to advertise that they specialize or have expertise in areas of practice. [Added 7/1/19]

The Florida Supreme Court approved, with minor modifications, changes to Rule 4-7.14 that were proposed by the Florida Bar. As amended, the rule permits lawyers and law firms to advertise that they specialize or have expertise in areas of practice if certain criteria are met. The amended rule is effective August 26, 2019.

The replaced rule was held unconstitutional in Searcy v. Florida Bar, 140 F.Supp.3d 1290 (N.D. Fla. 2015). As a result, the Bar proposed amendments to Rule 4-7.14. The Supreme Court rejected those proposals and referred the matter back to the Bar for “additional consideration.” In re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), 229 So.3d 1154 (Fla. 2017).

Under amended Rule 4-7.14(a)(5), a lawyer may state that he or she is a “specialist” or “expert” in an area of law if the lawyer is certified in the area under a Florida Bar or ABA approved certification plan or if the lawyer “can objectively verify the claim based on the lawyer’s education, training, experience, or substantial involvement in the area of practice in which specialization or expertise is claimed.”

Similarly, under amended Rule 4-7.14(a)(6), a law firm may state that it “specializes” or has “expertise” in an area of law if the firm “can objectively verify the claim as to at least 1 of the lawyers who are members of or employed by the law firm as set forth in subdivision (a)(5)” of Rule 4-7.14. However, unless all lawyers in the law firm meet the criteria, advertisements of the firm’s specialization or expertise “must contain a reasonably prominent disclaimer that not all lawyers in the firm specialize or have expertise in the area of practice in which the firm claims specialization or expertise.”

The Comment to amended Rule 4-7.14 addresses how the new rule applies when a lawyer is “of counsel” to a law firm. In re: Amendments to Rule Regulating The Florida Bar 4-7.14, __ So.3d __ (Fla., No. SC18-2019, 6/27/2019), 2019 WL 2621144.

Board of Governors approves rule change proposal that would prohibit advertising lawyers from using names of other lawyers or law firms in misleading way that states or implies that the other lawyer is part of the advertising lawyer’s firm. [Added 6/3/19]

At its May 2019 meeting in Palm Beach, the Board of Governors voted to approval an amendment to Rule 4-7.13 to address the practice of advertising lawyers using the names of other lawyers or law firms as part of internet advertising campaigns. An example of the practice would be the advertising lawyer bidding on the name of a different lawyer or law firm who is not affiliated with the advertising lawyer so that, when an internet user searches for the name of that other lawyer or law firm, an ad placed by the advertising lawyer is displayed.

The Board approved a rule amendment that would prohibit “a statement or implication that another lawyer or law firm is part of, associated with, or affiliated with the advertising law firm when that is not the case.” The rule change does not become effective unless and until it is approved by the Florida Supreme Court. It is expected that the rule change proposal will be filed with the Court later this year.

Watch sunEthics.com for further developments.

The full text of the proposed amendment to Rule 4-7.13(b) is: “Deceptive or inherently misleading advertisements include, but are not limited to advertisements that contain: . . . (12) a statement or implication that another lawyer or law firm is part of, associated with, or affiliated with the advertising law firm when that is not the case, including contact or other information presented in a way that misleads a person searching for a particular lawyer or law firm, or for information regarding a particular lawyer or law firm, to unknowingly contact a different lawyer or law firm.”

The following explanatory language was approved by the Board for addition to the Comment to Rule 4-7.13: “This rule prohibits any statement or implication that a lawyer or law firm is affiliated or associated with the advertising lawyer or law firm when that is not the case. Lawyers may not state or imply another lawyer is part of the advertising firm if the statement or implication is untrue. For example, when a lawyer leaves a law firm, the firm must remove the lawyer’s name from the firm’s letterhead, website, advertisements, and other communications about the law firm. An example of impermissible advertising would be including the name of a lawyer or law firm that is not part of the advertising law firm in an Internet advertisement or sponsored link that is displayed when the non-affiliated lawyer or law firm’s name is used as a search term when the advertisement does not clearly indicate that the non-affiliated lawyer or law firm is not part of the advertising law firm. Another example of impermissible conduct is use of another lawyer or law firm name as an Internet search term that triggers the display of an advertisement that does not clearly indicate that the advertisement is for a lawyer or law firm that is not the lawyer or law firm used as the search term. The triggered advertisement would not be misleading if the first text displayed is the name of the advertising lawyer or law firm and, if the displayed law firm name is a trade name that does not contain the name of a current or deceased partner, the name of the lawyer responsible for the advertisement is also displayed as the first text.”

Supreme Court declines to adopt proposed rule to bar lawyers from accepting referrals from any entity that refers to more than one type of professional for same incident or transaction. [Added 4/15/19]

By a 6-1 vote, the Florida Supreme Court declined to adopt a rule proposed by the Bar at the Court’s direction that would have prohibited lawyers from accepting referrals from any entity that refers to more than one type of professional for the same incident or transaction. In declining to adopt the proposed rule and dismissing the case, the Supreme Court explained: “Having considered the Bar’s proposal, the comments filed, and the Bar’s response and amended proposal, the Court declines to adopt the proposed amendments at this time. See [In re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7 (Lawyer Referral Services), 238 So.3d 164 (Fla. 2018)] (Lawson, J., concurring in part, dissenting in part).”

In March 2018 the Supreme Court had amended the lawyer advertising rules, replacing rules on lawyer referral services with rules addressing “qualifying providers” (a term embracing many internet-based services that connect clients with lawyers). By a 4-3 vote, the Court also directed the Bar to submit proposed rules to bar lawyers from accepting referrals from any entity that refers to more than one type of professional for the same incident or transaction. In re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7 (Lawyer Referral Services), 238 So.3d 164 (Fla. 2018). The majority referred to a recommendation made by a 2011 Bar special committee that was based on a handful of anecdotes: “We therefore direct the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s first recommendation.”

The concurring and dissenting opinion by Justice Lawson disagreed with directing the Bar to propose rules banning multiple-profession referrals. Justice Lawson’s opinion noted that the multiple-profession referral ban was directed at just 2 identified referral services and was based on a “nearly six-year old recommendation.” It recognized “the potential mischief that could flow from doctor/lawyer cross-referral relationships,” but noted that “those relationships exist and appear to be common.” It further suggested that any potential danger present in a medical-legal referral service would also exist in “direct doctor/lawyer referral relationships – which no one has ever suggested could or should be barred.”

In June 2018 the Bar filed the rule change proposals as directed. The Bar’s petition reminded the Court that the Bar “did not agree” with the special committee’s recommendation and “continues to have concerns about this Court’s directive as expressed in the bar’s earlier petition.” In that prior petition, the Bar had stated that “the few anecdotal instances reported to the special committee to support its recommendations may be insufficient to pass constitutional scrutiny by a federal court.”

The rejected rule would have permitted a lawyer to accept a referral from a qualifying provider only if the qualifying provider “does not receive any benefit or consideration, monetary or otherwise, from either the lawyer or any other person, entity, or service for the referral or attempted referral of clients to both that lawyer and that other person, entity, or service for any type of professional service arising from the same incident, transaction, or circumstance[.]” In re: Amendments to Rule Regulating The Florida Bar 4-7.22 (Fla., No. SC18-881, 4/15/2019) (order).

Supreme Court acts on Bar’s biennial rules proposals, including proposed amendments relating to self-reporting criminal charges and convictions to Bar, Bar’s duty to notify Court of lawyer’s felony adjudication, client payments by credit card, imputed disqualification, collaborative law, CLE “professionalism” requirements, and electronic meetings. [Added 1/14/19]

The Supreme Court issued an opinion acting on the Bar’s biennial proposals for amendments to the Rules Regulating The Florida Bar. The Court adopted most of the Bar’s proposals. The amendments are effective March 5, 2019. Significant rule changes are summarized below.

Reporting criminal charges and convictions to Bar. Several subdivisions of Rule 3-7.2 deal with reporting to the Bar that a lawyer has been criminally charged or adjudicated guilty. The stated that the rule was “rewritten for readability” and to “make clear that it is an attorney’s duty to report pending criminal charges and any judgment thereon to the Bar.”

REJECTED rule: Bar’s duty to notify Court of lawyer’s felony adjudication. The Court rejected a proposed amendment to Rule 3-7.2(f) that would “would make discretionary the Bar’s now-mandatory duty to file a Notice of Determination or Judgment of Guilt with the Court upon discovery that an attorney has been adjudicated guilty of a felony.” The Court declined to adopt the proposal, stating: “Although the Bar expresses concern over having no discretion in cases involving a finding of guilt of a felony that requires no intent because the rule provides for the automatic interim suspension of the attorney, we find that the seriousness of having been found guilty of a felony offense militates in favor of this Court retaining the ability to review the circumstances surrounding the finding of guilt.”

Fee or cost payments by credit card. As amended, Rule 4-1.5(h) now permits lawyers to pass on to clients “the actual charge” that a lawyer pays when a client pays fees or costs using a credit card. The previous rule prohibited passing along those charges.

Imputed disqualification. The Comment to Rule 4-1.10 (imputation of conflicts) was amended to remove a paragraph titled “Adverse positions.” The Bar’s Petition to amend the rules explained that the language was deleted because it “seem[ed] to contradict subdivision (a) of the rule,” which deals with imputation of conflicts among lawyer who are currently associated together.

Collaborative law. The Court approved amendments to Rule 4-1.19 (collaborative law) to change a number of references from “prospective clients” to “clients.” The Bar Petition to amend the rules explained that “[c] Clients frequently retain lawyers in family law matters before entering the collaborative law process, so it is not always accurate to describe them as ‘clients . . .”

CLE “professionalism” requirements. The Court amended Rule 6-10.3 “to require that one of the five credit hours of continuing legal education per three-year reporting cycle that is required to concern legal ethics, professionalism, bias elimination, substance abuse, or mental illness awareness must concern professionalism.”

Electronic meetings. The Court amended Rules 2-3.11, 2-9.2, and 2-9.6 to permit the Bar and its subdivisions (Board of Governors, Divisions, Sections, and Committees) to conduct electronic meetings. In re: Amendments to the Rules Regulating The Florida Bar - Biennial Petition, __ So.3d __ (Fla., No. SC18-1683, 1/4/2019), 2019 WL 98246.

Per Supreme Court, Rule 4-3.(b) permits payment to fact witness for assistance with case and discovery preparation only if that assistance is “directly related to” witness preparing for, attending, or testifying at proceedings. [Added 1/8/19]

Antaramian entered into a “Consulting Agreement” with Trial Practices, Inc. (“TPI”). TPI was to provide “trial support services” for Antaramian in his suit against a third party and to get 5% of any gross recovery that Antaramian obtained through verdict or settlement. Antaramian and the third party settled, with each party dropping its claims. Antaramian refused to pay TPI, asserting that he owed TPI nothing since he did not obtain a gross recovery.

TPI sued Antaramian for breach of contract. The jury found for Antaramian, who then sought prevailing party fees pursuant to a broad fee-shifting clause in the Consulting Agreement. Antaramian sought Amounts sought amounts paid to fact witnesses for time spent on “various items, including the following: traveling to and testifying at depositions and trial; reviewing documents and conferencing in advance of deposition and trial testimony; reviewing other correspondence and documents relating to TPI’s lawsuit, including in response to TPI’s requests for voluminous discovery; and assisting with things such as responding to interrogatories.”

The trial court apparently awarded Antaramian some amounts for witnesses’ non-testimony time “on the ground that the witnesses were acting as ‘consulting experts’ who ‘assisted in both case and discovery preparation.’”

The Second DCA affirmed, noting that the pre-2014 version of Rule 4-3.4(b), regarding compensation to witnesses, permitted “payments to a witness for ‘time spent preparing for, attending, or testifying at the proceedings.’” The appeals court concluded that this language in the Rule “is broad enough to encompass” payments for “assistance with case and discovery preparation.” Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, 228 So.3d 1184, 1191 (Fla. 2d DCA 2017).

The Second DCA certified a question to the Florida Supreme Court, which the Court rephrased as follows: “Does the pre-2014 version of rule 4-3.4(b) of the Rules Regulating the Florida Bar permit a party to pay a fact witness for the witness’s assistance with case and discovery preparation that is not directly related to the witness preparing for, attending, or testifying at proceedings?” The Court answered in the negative, limiting its opinion to this “narrow issue.”

Rule 4-3.4(b) generally prohibits payment of inducements to witnesses, but provides that payments are permissible if they fall within one of the “clearly delineated exceptions” to the general prohibition: “[1] ‘reasonable expenses incurred by the witness in attending or testifying at proceedings’; [2] ‘a reasonable, noncontingent fee for professional services of an expert witness’; or [3] ‘reasonable compensation to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings.’ R. Regulating Fla. Bar 4-3.4(b).” The “sole inquiry” before the Court “is whether that third exception – which permits reasonably compensating a fact witness for ‘preparing for, attending, or testifying at proceedings’ – permits reasonably compensating a fact witness for what the district court referred to as ‘assistance with case and discovery preparation.’”

The Court recognized that Rule 4-3.4(b) “reflects a balancing” between the competing concepts of offering inducements to color testimony and acknowledging the value of a witness’s time spent in preparation. But the Supreme Court, unlike the Second DCA, was not willing to equate “assistance with case and discovery preparation” with “preparing for, attending, or testifying at proceedings” in every instance. These categories are not mutually exclusive, but the former is not subsumed within the latter.

Rather, the Court summarized: “We think the more appropriate inquiry is whether the witness’s ‘assistance with case and discovery preparation’ is directly related to the witness ‘preparing for, attending, or testifying at proceedings.’ Although less than perfectly precise, viewing the payments through that narrower lens is consistent with the language of the rule and avoids prejudicing parties in highly complex cases such as this where they are dependent upon professionals.” Under the Rule witnesses may be reasonably compensated for certain services, the Court “reiterate[d] that a fact witness’s ‘assistance’ must be directly related to the witness ‘preparing for, attending, or testifying at proceedings.’”

The Court closed by stating: “Although we conclude that ‘preparing for, attending, or testifying at proceedings’ can reasonably be interpreted to include certain ‘assistance with case and discovery preparation,’ we also reiterate the importance of rule 4-3.4(b) and the prohibition against improperly influencing witnesses. Our disciplinary cases have repeatedly noted – both in the context of rule 4-3.4(b) and otherwise – the importance of avoiding even the appearance of improper influence.” Trial Practices, Inc. v. Hahn Loeser & Parks, LLP, __ So.3d __ (Fla., No. SC17-2058, 12/28/2018), 2018 WL 6816553.

Florida Bar Professional Ethics Committee adopts proposed advisory opinion regarding whether personal injury lawyers ethically may charge interest on cost advances in contingent fee cases. [Added 10/23/18]

At its meeting in Tampa on October 19, 2018, the Florida Bar Professional Ethics Committee considered a draft of a proposed advisory opinion addressing the issue of whether, and under what conditions, a lawyer who represents clients in personal injury contingent fee cases may charge interest on costs advanced in those cases.

The Committee voted overwhelmingly to approve Proposed Advisory Opinion 18-2. The final paragraph of PAO 18-2 summarizes the guidance provided in the PAO: “In summary, a lawyer may charge a lawful rate of interest on an advance of contingent costs from the time the costs are incurred by the lawyer provided the rate of nterest is lawful, reasonable, in the best interest of the client, is disclosed to the client in writing at the earliest opportunity, and the client gives informed consent in writing.”

Interested Bar members may file written comments on PAO 18-2. Any comments must be sent to Elizabeth Tarbert, Florida Bar Ethics Counsel, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, and must be postmarked no later than December 17, 2018. Any timely comments will be considered by the Professional Ethics Committee at its January meeting in Orlando. Proposed Advisory Opinion 18-2 (October 19, 2018).

Watch sunEthics.com for further developments.

Supreme Court approves rules allowing temporary authorization for spouses of active duty military personnel to practice law in Florida. [Added 7/20/2018]

In 2017 the Bar petitioned the Supreme Court for approval of rules to allow lawyer spouses of active duty military personnel to practice law in Florida under certain conditions. The Board of Bar Examiners filed a companion petition. The Supreme Court declined to approve the rules, and dismissed the petitions. The Court directed the Bar and the Bar Examiners to file a joint petition “that imposes additional restrictions on those requesting authorization to practice law in Florida as the spouse of a member of the United States Armed Forces. Such restrictions must include a time limit on the duration of the authorization and must require that all persons who receive authorization associate, either through participation in a law firm or through mentorship, with a member of the Bar who is eligible to practice law in Florida for the duration of the authorization.” In re: Amendments to the Rules Regulating The Florida Bar – Chapter 21 Military Spouse Authorization to Engage in the Practice of Law in Florida, 232 So.3d 271 (Fla. 2017).

The Bar and the Board responded by filing a joint petition in January 2018. It contained the same rules proposed in the former petition, with 2 notable changes as directed by the Court: (1) a requirement that a lawyer authorized by the new rules must be “employed by or in a mentorship relationship with” a Florida bar member; and (2) a provision that the authorization to practice will terminate 5 years after it was granted.

The Supreme Court approved the proposed rules as Chapter 21 of the Rules Regulating The Florida Bar. The new rules take effect on September 17, 2018. Key provisions in the new rules are summarized below.

Requirements for an applicant to be eligible for “military spouse authorization to engage in the practice of law in Florida” include: being the spouse of a full-time active duty member of the U.S. armed forces or reserves (Rule 21-1(a)); holding a J.D. degree from an ABA-accredited law school; admission to the bar of another state after passing a written exam (Rule 21-1(b)); good standing in all bars to which the applicant is admitted; (Rule 21-1(e)); not being subject to discipline or named in a pending disciplinary matter (Rule 21-1(f)); not having failed the Florida Bar exam within the past five years, or having been denied admission for character and fitness reasons (Rule 21-1(g)); and residing in Florida with the service member (Rule 21-1(h)).

All lawyers certified to practice under Chapter 21 “must be employed by or in a mentorship relationship with” a Florida Bar member who is eligible to practice law in Florida. Rule 21-4.1(b). The Bar’s Military Affairs Committee will establish a mentor network for this purpose.

A lawyer certified to practice under Chapter 21 generally has the same privileges as any Florida Bar member. Rule 21-4.1(a).

Certification to practice law under Chapter 21 terminates under various circumstances, including if: the applicant’s spouse is no longer an active duty member of the armed forces; the marriage ends, the spouse is permanently transferred to a station outside of Florida and is not authorized to be accompanied; five years elapse since certification; the annual renewal fee is not paid (see Rule 21-5.1); the CLE requirements are not met (see Rule 21-3.1); or the applicant is suspended or disbarred in another jurisdiction. Rule 21-6.

Rule 2-23.7 of the Rules of the Supreme Court Relating to Admissions to the Bar was adopted to provide for an application fee of $1000.

The Court explained its rationale for adopting the rules: “The new rules accommodate the unique mobility requirements of members of the U.S. Armed Services and their families. Service members are frequently required to relocate to duty locations around the globe based on the needs of the particular service to which they belong, with little regard to how the relocation may affect the service member’s family. As a result, the assignment of a service member to a duty location in Florida may place the service member’s spouse in the untenable position of having to choose between giving up the practice of law to relocate with the service member and continuing to practice law in the jurisdiction where he or she is already licensed.”

The Court closed by expressing its gratitude for the sacrifices made by service members and their families: “It is our hope that the adoption of these new rules will assuage some of the hardships associated with service in the U.S. Armed Services. At a minimum, our adoption of these new rules gives form to the abiding gratitude we all share for the men and women who voluntarily serve in the U.S. Armed Services and the sacrifices endured by their families.” In re: Amendments to the Rules Regulating The Florida Bar and the Rules of the Supreme Court Relating to Admissions to the Bar – Military Spouse Rules, __ So.3d __ (Fla., No. SC18-158, 7/19/2018), 2018 WL _______.

Professional Ethics Committee considers issues relating to charging interest on cost advances in contingent fee cases, use of “doctor” as title by retired lawyers, disclosure of improper acts by client who is guardian, responding to negative online reviews, and representation in juvenile matters. [Added 6/18/18]

At its meeting in Orlando on June 15, 2018, the Florida Bar Professional Ethics Committee considered a number of wide-ranging ethical issues, including: charging interest to clients on cost advances in contingent fee cases; use of the title “doctor” by a retired lawyer; whether a lawyer may or must disclose apparent wrongdoing that was engaged in by a guardian who is represented by the lawyer; whether, or how, a lawyer may publicly respond to negative online reviews posted by former clients; and issues in juvenile representation raised by a report from the Special Committee on Child and Parent Representation.

Interest on costs advances. In the context from an appeal of a staff opinion, the Committee debated whether it should be ethically permissible for a lawyer to charge interest on costs advanced by the lawyer in contingent fee cases. Florida Ethics Opinion 86-2 permits lawyers to charge lawful interest on “liquidated” fees and costs. Opinion 86-2 did not distinguish between contingent and non-contingent fee cases. A motion to withdraw the staff opinion and issue an opinion concluding that it was permissible for a lawyer to charge a lawful rate of interest on costs advances when a lawyer has borrowed the money used to make the advances failed. The matter was referred to a subcommittee for further study.

Use of title “doctor” by retired lawyers. Bar staff had declined to issue an opinion on the question of whether it would be ethically permissible for a retired lawyer to refer to himself as “doctor” in conversation and correspondence. The Committee affirmed the staff’s action.

Disclosure of apparent wrongdoing by client/guardian. Bar staff had opined that an inquiring lawyer who represented a guardian could not disclose what appeared to be wrongdoing by the guardian due to the lawyer’s obligation of confidentiality to the client. The Committee voted to withdraw the staff opinion.

Responding to negative online reviews. Bar staff had informed an inquiring attorney that it was not permissible to disclose confidential information in responding to a negative online review by a former client. The Committee affirmed the staff opinion.

Juvenile representation issues. The Committee heard presentations from 2 members of the Bar’s Special Committee on Child and Parent Representation. The Board of Governors had asked the Committee to review the Report prepared by the Special Committee, which had asked the Board to endorse the recommendations in the Report. The matter was referred to a subcommittee for study.

Watch sunEthics.com for further developments.

Following Supreme Court’s directive, Bar petitions for rule change to prohibit lawyers from accepting referrals from “qualifying providers” that refer to more than one profession for same incident. [Added 6/5/18]

In March 2018 the Florida Supreme Court amended the lawyer advertising rules by replacing the rules on lawyer referral services with rules addressing “qualifying providers,” a term that embraces both traditional lawyer referral services and internet-based services that connect clients with lawyers. By a 4-3 vote, however, the Court also directed the Bar to submit proposed rules within 90 days that would bar lawyers from accepting referrals from any entity that refers to more than one type of professional for the same incident or transaction. In re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7 (Lawyer Referral Services), 238 So.3d 164 (Fla. 2018).

In its directive to the Bar, the majority referred to a recommendation made by a 2011 special committee that relied on a handful of anecdotes: “We therefore direct the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s first recommendation.”

The dissenting opinion disagreed with the majority’s decision directing the Bar to propose rules banning multiple-profession referrals. The multiple-profession referral ban was directed at only 2 identified referral services and was based on a “nearly six-year old recommendation." While recognizing “the potential mischief that could flow from doctor/lawyer cross-referral relationships,” the dissenting opinion noted that “those relationships exist and appear to be common.” It further suggested that any potential danger that would be present in a medical-legal referral service would also exist in “direct doctor/lawyer referral relationships – which no one has ever suggested could or should be barred.”

On June 5, 2018, the Bar filed the rule change petition as directed by the Court. The Bar's petition reminded the Court that the Bar “did not agree” with the special committee’s recommendation and “continues to have concerns about this Court’s directive as expressed in the bar’s earlier petition.” In that prior petition, the Bar stated that “the few anecdotal instances reported to the special committee to support its recommendations may be insufficient to pass constitutional scrutiny by a federal court.”

The proposed rule change would permit a lawyer to accept a referral from a qualifying provider only if the qualifying provider “does not receive any benefit or consideration, monetary or otherwise, from either the lawyer or any other person, entity, or service for the referral or attempted referral of clients to both that lawyer and that other person, entity, or service for any type of professional service arising from the same incident, transaction, or circumstance[.]” The Florida Bar’s Petition to Amend Rule Regulating The Florida Bar 4-7.22, (Fla., No. SC18-881, filed June 5, 2018).

Supreme Court amends mediator rules to provide for publication of advisory opinions on website. [Added 3/26/18]

The Florida Supreme Court amended Rule 10.910 of the Rules for Certified and Court-Appointed Mediators “to allow the Dispute Resolution Center (DRC) greater latitude in publishing advisory opinions of the Mediator Ethics Advisory Committee (MEAC) by removing the specification that the opinions be published in the DRC’s newsletter.” Under the amended rule, the opinions may be published on the DRC’s website. The change is effective immediately. In re: Amendments to Florida Rule for Certified and Court-Appointed Mediators 10.910, __ So.3d __ (Fla., No. SC17-935, 3/15/2018), 2018 WL 1324757.

Supreme Court amends rules regulating referral services to expressly recognize their applicability to all client-lawyer matching services, and further orders Bar to prepare rules restricting services that refer to more than one professional service. [Added 3/9/18]

Issuing an opinion in a case that it had previously dismissed without prejudice, the Supreme Court overhauled rules governing lawyer referral services and other services that connect or “match” prospective clients with lawyers. The Court took 2 significant actions: (1) it approved the rules that the Bar had submitted in 2016 regarding the operation of “qualifying providers,” a term that embraces many popular internet-based services that connect clients with lawyers; and (2) it directed the Bar to submit proposed rules within 90 days that would bar lawyers from accepting referrals from any entity that refers to more than one type of professional for the same incident or transaction.

Regarding approval of “qualifying provider” regulations, the substantive changes are to Rule 4-7.22, with conforming changes to several other rules (4-7.12, 4-7.13, 4-7.15) and deletion of one rule (4-7.23). Key amendments include:

Scope and definitions. The term “lawyer referral service” is broadened to “qualifying provider.” The intent is to expressly include online matching or lead-generating services services. Revised Rule 4-7.22(b) defines qualifying provider as “any person, group of persons, association, organization, or entity that receives any benefit or consideration, monetary or otherwise, for the direct or indirect referral of prospective clients to lawyers or law firms,” including, but not limited to: (1) “matching” prospective clients with lawyers or law firms; (2) group or pooled advertising programs that use a common telephone number or website; (3) publishing in any media a listing of lawyers or law firms; or (4) providing “tips or leads” for clients to lawyers or law firms. Pro bono referral programs and local or voluntary bar association listings are excluded from this definition.

Responsibilities of participating lawyers. Lawyers may not participate with a qualifying provider unless the provider complies with applicable Rules Regulating The Florida Bar. A participating lawyer “is responsible for the qualifying provider’s compliance with” Rule 4-7.22 if: (1) “the lawyer does not engage in due diligence in determining the qualifying provider’s compliance” before beginning participation; or (2) the Bar “notifies the lawyer that the qualifying provider is not in compliance and the lawyer does not cease participation” within 30 days. The revised Comment to Rule 4-7.22 discusses “due diligence,” but does not address how the Bar will determine “compliance” for purposes of notifying lawyers.

Qualifying provider compliance. Revised Rule 4-7.22(d)(6) prohibits lawyers from participating with a qualified provider unless the provider provides them “with documentation that the qualifying provider is in compliance with” Rule 4-7.22.

Referrals to other professions or services. Revised Rule 4-7.22(d)(4) prohibits lawyers from participating with a qualified provider if the provider directly or indirectly requires the lawyer to refer or connect prospective clients to any other person or entity for other services or places “any economic pressure or incentive on the lawyer to make such referrals.” Under the revised Comment to Rule 4-7.22, accepting referrals must not interfere with the lawyer’s professional judgment in representing clients and a lawyer “may not refer clients to the qualifying provider, a beneficial owner of the qualifying provider, or an entity owned by the qualifying provider or a beneficial owner of the qualifying provider, unless the requirements of rules 4-1.7 and 4-1.8 are met and the lawyer provides written disclosure of the relationship to the client and obtains the client’s informed consent confirmed in writing.”

Fees charged by qualifying providers. Revised Rule 4-7.22(d)(2) continues the current prohibition against lawyers participating with a non-Bar-sponsored qualified provider if the provider receives a fee or charge that is a division or sharing of fees. The revised Comment to Rule 4-7.22 identifies what is considered improper fee sharing: “A fee calculated as a percentage of the fee received by a lawyer, or based on the success or perceived value of the case, would be an improper division of fees. Additionally, an improper division of fees occurs when the qualifying provider directs, regulates, or influences the lawyer’s professional judgment in rendering legal services to the client.”

Registration with Florida Bar. Revised Rule 4-7.22(d)(5) now requires lawyer referral services to file a list of participating lawyers with the Bar annual (rather than quarterly). Revised Rule 4-7.22(e)(1) requires that each participating lawyer notify the Bar within 15 days of “agreeing to participate or ceasing participation with” a qualifying provider.

Name used by qualifying provider. Revised Rule 4-7.22(d)(11) prohibits lawyers from participating with a qualified provider if the provider uses a name or other communication “that could lead prospective clients to reasonably conclude that the qualifying provider is a law firm or directly provides legal services to the public.”

Some current requirements eliminated. The revised rules eliminate some requirements that formerly applied regarding private lawyer referral services, including: the required “lawyer referral service” and lawyers-pay-to-participate disclosures in advertisements; and the requirement that participating lawyers be covered by legal malpractice insurance.

Four members of the Court, however, went further with respect to services that refer clients to more than one professional service for the same incident or transaction. Referring to a recommendation made by a 2011 special committee that relied on anecdotes, the 4-3 majority stated: “We therefore direct the Bar to submit a petition within ninety days proposing amendments to rule 4-7.22, and any other rule necessary, to implement the Special Committee’s first recommendation.”

The dissenting opinion disagreed with the majority’s decision directing the Bar to propose rules banning multiple-profession referrals. The dissent recognized “the potential mischief that could flow from doctor/lawyer cross-referral relationships,” but noted that “those relationships exist and appear to be common.” It further suggested that any potential danger that would be present in a medical-legal referral service would also exist in “direct doctor/lawyer referral relationships – which no one has ever suggested could or should be barred.” In re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7 (Lawyer Referral Services), __ So.3d __ (Fla., No. SC16-1470, 3/8/2018), 2018 WL 1193467.

Supreme Court amends Evidence Code, recognizing that communications between lawyer and client acting as fiduciary are protected by attorney-client privilege. [Added 2/20/18]

In 2011 the Florida Legislature eliminated the common law fiduciary exception to the attorney-client privilege. The Supreme Court, however, decided not to adopt, to the extent it was procedural, a corresponding amendment to the Evidence Code (chapter 2011-183, section 1, Laws of Florida, which created F.S. 90.5021). See In re Amendments to Florida Evidence Code, 144 So.3d 536 (Fla. 2014).

In 2017 the Florida Bar’s Probate Rules Committee and the Code and Rules of Evidence Committee, supported by the Board of Governors, petitioned the Court to reconsider its 2014 decision. The Court granted the request by adopting chapter 2011-183, section 1, Laws of Florida, to the that it is procedural.

New F.S. 90.5021, which is retroactively effective June 21, 2011, provides: “Fiduciary lawyer-client privilege. -- (1) For the purpose of this section, a client acts as a fiduciary when serving as a personal representative or a trustee as defined in ss. 731.201 and 736.0103, an administrator ad litem as described in s. 733.308, a curator as described in s. 733.501, a guardian or guardian ad litem as defined in s. 744.102, a conservator as defined in s. 710.102, or an attorney in fact as described in chapter 709. (2) A communication between a lawyer and a client acting as a fiduciary is privileged and protected from disclosure under s. 90.502 to the same extent as if the client were not acting as a fiduciary. In applying s. 90.502 to a communication under this section, only the person or entity acting as a fiduciary is considered a client of the lawyer. (3) This section does not affect the crime or fraud exception to the lawyer-client privilege provided in s. 90.502(4)(a).” In re: Amendments to the Florida Evidence Code – 2017 Out-of-Cycle Report, __ So.3d __ (Fla., No. SC17-1005, 1/25/2018), 2018 WL 549179.

Board of Governors approves proposed rule change to increase CLE requirements in “professionalism.” [Added 2/13/18]

At its January 2018 meeting in Tallahassee, the Board of Governors approved a change to Rule 6-10.3, regarding CLE credits in professionalism. The rule currently requires five hours in ethics, professionalism, mental health, and substance abuse in each 3-year, 33-credit CLE reporting cycle. The revised rule would specify that one of those five hours be in professionalism.

The Board will submit the proposed rule change to the Florida Supreme Court for its consideration and possible approval.

Board of Governors decides it is permissible for lawyer to ask client to pay premium on “litigation cost protection” insurance policy in event of recovery for client in contingent fee case. [Added 2/9/18]

At its January 2018 meeting, the Board of Governors considered an appeal of a Professional Ethics Committee decision. The Committee had affirmed a Bar Staff Opinion responding to an inquiry from lawyers who had asked this question: “May [a lawyer] advance, as a cost (to be reimbursed by the client at the close of litigation), a premium for an insurance policy that covers the risk of losing the money that has been spent by [a lawyer], on behalf of the client, on litigation costs in the event that case is lost at trial?” The insurance policy would pay only if the case was tried to a zero recovery. The premium for a policy would be 7% of whatever amount of coverage the lawyer requested, up to a maximum of $250,000.

The Board voted 23-17 to reverse the Committee’s decision and directed Bar staff to issue an opinion to the inquiring lawyers permitting the practice under very specific conditions.

Staff Opinion 37289 (Revised) stated that the question presented was a “close” one because of the conduct at issue would create potential conflicts of interest between lawyer and client. The Staff Opinion describes the conflicts and other ethical concerns in detail, and concludes that certain specific conditions must be satisfied before a lawyer buys the coverage and has the client pay the premium in the event of recovery. Among other things, the lawyer must: reasonably believe that the litigation cost protection insurance coverage serves the client’s best interests; fully explains the product to the client; tell clients that other lawyers might advance costs without having the client buy the litigation cost protection policy. Additionally, the lawyer must follow the requirements of Rule 4-1.8(a), which include giving the client an opportunity to review the policy, advising the client in writing that it would be desirable to seek independent counsel, and getting the client’s written informed consent at the outset of the case. Florida Bar Staff Opinion 37289 (Revised) [see article in February 15, 2018 issue of Florida Bar News].

Bar and Board of Bar Examiners file revised petition asking Supreme Court to adopt rules providing for temporary authorization for spouses of active duty military personnel to practice law in Florida. [Added 2/7/18]

In 2017 the Florida Bar petitioned the Supreme Court for approval of rules to allow lawyer spouses of active duty military personnel to practice law in Florida under certain conditions. The Board of Bar Examiners filed a companion petition. The Bar’s proposed rules would have created Chapter 21 of the Rules Regulating The Florida Bar and contained requirements for an applicant to be eligible for “military spouse authorization to engage in the practice of law in Florida,” including: being the spouse of a full-time active duty member of the U.S. armed forces or reserves; holding a J.D. degree from an ABA-accredited law school; admission to the bar of another state after passing a written exam; good standing in all bars to which the applicant is admitted; not being subject to lawyer discipline; not having failed the Florida Bar exam within the past 5 years, or having been denied admission for character and fitness reasons; and residing in Florida with the service member. A lawyer certified to practice under the proposed rules would have the same privileges as any Florida Bar member, except that a lawyer who was not engaged in the practice of law for at least 3 years must affiliated with a Florida Bar member mentor.

The Supreme Court declined to approve the rules, and dismissed the petitions. The Court directed the Bar and the Bar Examiners to “file a joint petition . . . that imposes additional restrictions on those requesting authorization to practice law in Florida as the spouse of a member of the United States Armed Forces. Such restrictions must include a time limit on the duration of the authorization and must require that all persons who receive authorization associate, either through participation in a law firm or through mentorship, with a member of the Bar who is eligible to practice law in Florida for the duration of the authorization.” In re: Amendments to the Rules Regulating The Florida Bar – Chapter 21 Military Spouse Authorization to Engage in the Practice of Law in Florida, __ So.3d __ (Fla., SC17-156, 17-230, 12/14/2017), 2017 WL 6379469.

The joint petition was filed by the Bar and the Board in January 2018. It contained the same rules that were proposed in the former petition, with the two notable changes as directed by the Court: (1) proposed Rule 21-4.1(b) requires that a lawyer authorized by the new rules must be “employed by or in a mentorship relationship with” a Florida bar member (and notes that the Bar’s Military Affairs Committee will establish a “mentor network”); and (2) proposed Rule 21-6.1(a)(1)(F) provides that the authorization to practice will terminate 5 years after the authorization is granted.

Florida Bar Board of Governors determines that “Avvo Advisor” program is considered a “lawyer referral service” under Bar rules. [Added 1/2/18]

At its December 2017 meeting in Amelia Island, the Florida Bar Board of Governors determined that the “Avvo Advisor” program is considered a “lawyer referral service” under Florida Bar rules. Responding to an inquiry from a Florida lawyer, the Board concluded “that Avvo Advisor meets the definition of a lawyer referral service when it offers to connect a consumer directly to a lawyer for advice, advertises that a consumer may ‘get advice from a top-reviewed lawyer in one affordable phone call,’ allows the consumer to either choose a lawyer from a list of participating lawyers or have Avvo choose the lawyer for them, the lawyer connects directly with the prospective client, and there is a $39 charge for a 15-minute consultation with a participating lawyer in which the full $39 is paid to the lawyer, who then pays $10 of this fee to Avvo as a ‘marketing fee.’”

The Board’s decision is discussed in the January 1, 2018, issue of the Florida Bar News entitled “Bar tells Avvo Advisor is it a lawyer referral service.”

Supreme Court rejects proposed rules for temporary authorization to practice law in Florida for spouses of active duty military personnel. [Added 12/26/17

In February 2017 the Florida Bar petitioned the Florida Supreme Court for approval of rules that would allow lawyer spouses of active duty military personnel to practice law in Florida under certain conditions. The Florida Board of Bar Examiners filed a companion petition that would establish the application fee for a person seeking authorization under the Bar’s proposed rules.

The Bar’s proposed rules would contain a number of requirements for an applicant to be eligible for “military spouse authorization to engage in the practice of law in Florida,” including: being the spouse of a full-time active duty member of the U.S. armed forces or reserves; holding a J.D. degree from an ABA-accredited law school; admission to the bar of another state after passing a written exam; good standing in all bars to which the applicant is admitted; not being subject to lawyer discipline; not having failed the Florida Bar exam within the past 5 years, or having been denied admission for character and fitness reasons; and residing in Florida with the service member. Further, a lawyer certified to practice under the proposed rules would have the same privileges as any Florida Bar member, except that a lawyer who has not been engaged in the practice of law for at least 3 years must affiliated with a Florida Bar member who will serve as a mentor.

The Supreme Court dismissed the petitions. The Court directed the Bar and the Bar Examiners to “ file a joint petition within ninety days of the date of this order that imposes additional restrictions on those requesting authorization to practice law in Florida as the spouse of a member of the United States Armed Forces. Such restrictions must include a time limit on the duration of the authorization and must require that all persons who receive authorization associate, either through participation in a law firm or through mentorship, with a member of the Bar who is eligible to practice law in Florida for the duration of the authorization.”

Two justices dissented. They would have adopted the rules as proposed. In re: Amendments to the Rules Regulating The Florida Bar – Chapter 21 Military Spouse Authorization to Engage in the Practice of Law in Florida, __ So.3d __ (Fla., SC17-156, 17-230, 12/14/2017), 2017 WL 6379469.

Board of Governors approves Florida Ethics Opinion 17-1 regarding fee-sharing with law firms in jurisdictions with rules that permit non-lawyer ownership in law firms. [Added 12/24/17]

At its meeting in Amelia Island on December 7-8, 2017, the Bar’s Board of Governors approved Florida Ethics Opinion 17-1, which had been approved by the Professional Ethics Committee in June 2017.

Opinion 17-1 resulted from a request from the Bar’s Vision 2016 Commission and a directive from the Board of Governors. Opinion 17-1 concludes that is it ethically permissible for Florida Bar members to co-counsel and divide fees with out-of-state lawyers or law firms located in jurisdictions in which partial non-lawyer ownership of law firms is authorized. This conclusion is in accord with opinions from the ABA and other states, and protects Florida lawyers who associate with firms in other states on client matters from concerns over unintentional violations of fee-sharing rules.

Opinion 17-1 specifically states that it does not address several situations: “[T]his opinion does not address a Florida Bar member becoming a partner, shareholder, associate, or other formal arrangement in a law firm that is permitted to have nonlawyer ownership in its home jurisdiction and does so in compliance with the rules of its home jurisdiction. Neither does this opinion address the issue of a Florida Bar member who also is admitted to practice in another jurisdiction where nonlawyer ownership is permitted joining a law firm with nonlawyer owners under the rules of the other jurisdiction.”

Professional Ethics Committee concludes that it is unethical for lawyer to require client to pay cost of lawyer’s insurance to cover litigation costs in contingent fee cases. [Added 12/20/17]

At its October 2017 meeting, the Florida Bar Professional Ethics Committee approved a staff opinion concluding that it would be unethical for a lawyer to require a client to pay the cost of the lawyer’s insurance to cover litigation costs in contingent fee cases.

The inquiring lawyers were principals of a company that provides “litigation cost protection,” which reimburses lawyers for litigation costs and expenses advanced if there ultimately is no recovery in the case. The asked the Bar whether the insurance premium could be charged to the client for whose case the insurance was purchased if there was a recovery and the cost was disclosed to the client in the contingent fee agreement. The Bar’s staff opinion concluded that the premium cost could not ethically be charged to the client because it was a business expense of the lawyer rather that an expense of litigation.

After considering the issue over the course of 2 meetings, the Professional Ethics Committee voted to affirm the staff opinion.

Board of Governors will consider whether to approve proposed advisory ethics opinion on fee-sharing with law firms in jurisdictions with rules that permit non-lawyer ownership in law firms. [Added 12/6/17]

At its meeting in Amelia Island on December 7-8, 2017, the Bar’s Board of Governors is scheduled to consider Proposed Advisory Opinion (PAO) 17-1, which was approved by the Professional Ethics Committee in June 2017.

PAO 17-1 resulted from a request from the Bar’s Vision 2016 Commission and a directive from the Board of Governors. PAO 17-1 concludes that is it ethically permissible for Florida Bar members to co-counsel and divide fees with out-of-state lawyers or law firms located in jurisdictions in which partial non-lawyer ownership of law firms is authorized. This conclusion is in accord with opinions from the ABA and other states, and would protect Florida lawyers who associate with firms in other states on client matters from concerns over unintentional violations of fee-sharing rules.

PAO 17-1 may be notable for situations that it does not address, specifically stating: “[T]his opinion does not address a Florida Bar member becoming a partner, shareholder, associate, or other formal arrangement in a law firm that is permitted to have nonlawyer ownership in its home jurisdiction and does so in compliance with the rules of its home jurisdiction. Neither does this opinion address the issue of a Florida Bar member who also is admitted to practice in another jurisdiction where nonlawyer ownership is permitted joining a law firm with nonlawyer owners under the rules of the other jurisdiction.” Proposed Advisory Opinion 17-1.

Supreme Court approves rule amendments regarding soliciting gifts or fiduciary appointments from clients, notifying clients when leaving a law firm, contacting prospective clients, settling malpractice claims with unrepresented clients, holding trust funds in credit unions, protecting trust funds when third parties claim an interest, emeritus attorneys, authorized house counsel, and foreign legal consultants; Court rejects proposed change to rules on using “specialist” or “expert” in advertising. [Added 11/21/17]

                      In October 2016 the Florida Bar filed 3 petitions for rule amendments with the Supreme Court. One of the petitions proposed substantive changes to several rules and comments. The Supreme Court has acted on that petition, approving some of the proposed changes, modifying two others, and rejecting a proposed change to an advertising rule. The rule changes are effective February 1, 2018. Key action by the Court included:

            Gifts and fiduciary appointments from clients. As amended, Rule 4-1.8(c) prohibits lawyers from soliciting any gifts from clients; as stated in the Bar’s petition, “[i]t is inappropriate for a lawyer to solicit a gift from a client regardless of size.” (The current rule prohibits lawyers from soliciting any “substantial” gift (testamentary or otherwise) from a client.) Additionally, the Comment to Rule 4-1.8 was amended to specify that a lawyer may prepare a document that appoints the lawyer, the lawyer’s firm, or a relative of the lawyer to a “fiduciary office” (such as personal representative or trustee) only if “the client is properly informed, the appointment does not violate rule 4-1.7, the appointment is not the product of undue influence or improper solicitation by the lawyer, and the client gives informed consent, confirmed in writing.” The lawyer should advise the client in writing “that a person who serves as a fiduciary is entitled to compensation, and that the lawyer may be eligible to receive compensation for serving as a fiduciary in addition to any attorneys’ fees that the lawyer or the lawyer’s firm may earn for serving as a lawyer for the fiduciary.”

            Notifying clients when leaving a firm. Existing Rule 4-5.8 sets out procedures for lawyers who leave firms or law firms that dissolve. The Court approved changes to the Comment to Rule 4-5.8, which the Bar proposed to address frequently asked questions. The text of the rule remains virtually unchanged, but changes to the Comment include:
     --  When a lawyer leaves a firm (or there are other changes to firm composition), the departing lawyer and the firm “should engage in bona fide, good faith negotiations within a reasonable period of time” after the change is known or occurs, and notice to clients must be given “within a reasonable period of time”
     --  Notice to clients may be made by telephone, but “proof of compliance with the requirements of this rule may be difficult unless the notification is in writing”
     --  Notice of a change should be given to “current clients for whom the departing lawyer has provided significant legal services with direct client contact,” but no notice need be given to clients with whom the departing lawyer had no direct contact
     --  To comply with the rule, “both departing lawyers and the law firm should be given access to the names and contact information of all clients for whom the departing lawyer has provided significant legal services and with whom the lawyer has had direct contact”
     --  When neither the departing lawyer nor the firm intend to continue representing a client, the client may be notified of this via a joint notice or separately (if the parties cannot agree on a joint notice), but any obligations to give notice, protect the client’s interests on withdrawal, and obtain court permission where needed “may apply to both the departing lawyer and lawyers remaining in the firm"

            Contacting prospective clients – solicitation. After the Board of Governors decided that texting prospective clients is not considered prohibited solicitation but instead is permitted if done in compliance with the advertising rules, the Bar asked the Court to change Rule 4-7.18(a) to redefine prohibited solicitation to include “contact in person, by telephone, [or] by electronic means that include real-time communication face-to-face such as video telephone or video conference.” The Court approved those changes.

            Contacting prospective clients – advertising. The Court amended Rule 4-7.18(b) to relax the current requirement that each page of a direct mail advertisement be marked “advertisement.” Under the amended rule, the “advertisement” mark must appear only on “each separate enclosure.” The amended rule further specifies that, on a self-mailing brochure or pamphlet, the “advertisement” mark must be included on the address panel of the brochure or pamphlet, on the inside of the brochure or pamphlet, and on each separate enclosure. The amended rule also clarifies that the requirements contained in subdivision (b)(2) of Rule 4-7.18 do not apply to communications made at a prospective client’s request.

            Settling claims for malpractice. In response to a comment filed by a bar member, the Court modified the Bar’s proposed changes to Rule 4-1.8(h), which addresses both a lawyer’s attempt to prospectively limit his or her malpractice liability to clients and the lawyer’s conduct in settling a malpractice claim with a client or former client. As amended, the rule continues the restriction on a lawyer’s ability to make an agreement with a client prospectively limiting the lawyer’s liability for malpractice, and continues to forbid a lawyer from settling a malpractice claim with an unrepresented client or former client unless the lawyer first advises that person in writing that “independent representation is appropriate” in making the settlement.

            Trust accounts in credit unions. The Court amended Rule 5-1.1(a)(1) to permit lawyers to hold trust funds in federally insured credit unions.

            Obligations regarding disputed funds held in trust. The Bar proposed changing the Comment to Rule 5-1.1 to add citations to 3 disciplinary cases and an ethics opinion in an attempt to give guidance to lawyers who hold trust funds in which both the client and a third party claim an interest (e.g., personal injury lawyer holding settlement funds claimed by both client and client’s medical provider). The Court approved the addition of the citations but, in response to a comment from a bar member, did not include the parenthetical explanations of the cases proposed by the Bar.

            Paralegals working for non-Florida lawyers. Amended Rule 10-2.1 authorizes paralegals to work for out-of-state or foreign lawyers engaged in the authorized practice of law in Florida.

            UPL advisory opinions. The Court amended Rule 10-9.1 regarding advisory UPL opinions, including prohibiting the issuance of advisory opinions “on any matter currently the subject of an unlicensed practice of law or grievance investigation” by the Bar.

            Emeritus pro bono lawyers. In response to proposals by the Bar recommended by the Court’s Commission on Access to Civil Justice, Chapter 12 was amended to expand the pool of lawyers available to provide pro bono services in Florida. As amended, Chapter 12 “will now permit inactive or retired Bar members, inactive or retired lawyers who practiced in any other state or territory of the United States or the District of Columbia, former judges, current or former law professors, and authorized house counsel to serve as emeritus lawyers and perform this important service.”

            Authorized House Counsel. The Court approved the Bar’s proposal to allow “both lawyers licensed to practice law in any United States jurisdiction other than Florida, and those authorized to practice as a lawyer or counselor in foreign jurisdiction,” to serve as authorized house counsel pursuant to Chapter 17.

            REJECTED CHANGE: Advertising as a “specialist” or “expert.” The existing Bar rule on this issue was held unconstitutional in Searcy v. Florida Bar, 140 F.Supp.3d 1290 (N.D. Fla. 2015). As a result, the Bar proposed amendments to Rule 4-7.14 that would permit a lawyer to use terms like “specialist” or “expert” if the lawyer was: board certified by the Florida Bar, another state bar, or an “organization whose specialty certification program was approved by” the ABA or the Florida Bar; or, if the lawyer is not certified, “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.” Under the Bar’s proposal, lawyers who are not certified but whose claimed specialization or expertise falls within an area of practice under the Florida Certification Plan would have to include in their ads “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.” Similarly, lawyers who are certified under an ABA-approved plan that has not been approved by the Florida Bar would have to state in ads that they are “not board certified.”

            The Court rejected the Bar’s proposed amendments and referred the matter back to the Bar for more study: “We are concerned that the Bar’s proposal here does not sufficiently address the district court’s decision, and that the language requiring that a lawyer’s experience be ‘reasonably comparable’ to the Florida Certification Plan will prove to be problematic because it could lead to differing and inconsistent applications. Because we believe that this important issue requires further study, we decline to adopt the Bar’s proposed amendments to rule 4-7.14, and we refer this matter to The Florida Bar for additional consideration.”

            REJECTED CHANGE: Malpractice disclosure for Foreign Legal Consultants. The Court revised some requirements for a Foreign Legal Consultant under Chapter 16 as proposed by the Bar, but rejected one proposed change: the Court declined to delete the requirement that foreign legal consultants give clients a letter disclosing the extent of their malpractice insurance, as well as the fact that clients are not eligible to make claims on the Client Security Fund. “We believe that these disclosures serve an important role in protecting clients.”

The amendments are effective February 2018. In re: Amendments to the Rules Reregulating The Florida Bar (Biennial Petition), __ So.3d __ (Fla., No. SC16-1961, 11/9/2017), 2017 WL 5185198.

Hoping to increase access to justice, Supreme Court approves relaxed conflict of interest rules to apply in short-term, limited representation carried out through non-profit organization programs. [Added 10/23/17]

In March 2017 the Bar petitioned the Supreme Court for approval of two rule changes designed to make it easier and more attractive for lawyers to provide short-term, limited representation through non-profit organization programs. The Court approved the rule changes, noting that they “are intended to encourage lawyers to engage in these limited representations, which will increase access to justice at a time when legal aid funding and staff cannot accommodate all individuals who need legal representation.”

New Rule 4-6.6 is the primary rule. When a lawyer works through a program sponsored by a non-profit organization, court, government agency, bar association, or ABA-approved law school to provide “short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter,” the conflict of interest rules are relaxed. Rules 4-1.7 and 4-1.9(a) apply “only if the lawyer knows that the representation of the client involves a conflict of interest.” Similarly, conflicts are imputed within a firm under Rule 4-1.10 only if the lawyer providing the services “knows that another lawyer associated with the lawyer in a law firm” has a disqualifying conflict under Rules 4-1.7 or 4-1.9(a).

Amended Rule 4-1.2(c) modifies the client consent requirement. Although the client’s informed consent to the limited representation is still be required, the consent may be oral instead of in writing.

The amendments are effective November 20, 2017. In re: Amendments to The Rules Regulating The Florida Bar – Rule 4-1.2 and 4-6.6, __ So.3d __ (Fla., No. SC17-458, 10/29/2017), 2017 WL 4684220.

Supreme Court rejects proposed changes to rules that would recognize 3 types of representation (lead counsel, additional counsel, and limited representation counsel), without prejudice to submission of “more individualized and refined proposals.” [Added 9/15/17]

The Supreme Court rejected proposed amendments to the Florida Rules of Judicial Administration, Rules of Criminal Procedure, Rules of Appellate Procedure, and Rules of Juvenile Procedure. The proposals were submitted by the Florida Bar’s Rules of Judicial Administration Committee, Criminal Procedure Rules Committee, and Appellate Court Rules Committee (“Rules Committees”). The Court declined to adopt any of the proposals, “without prejudice to the filing of more individualized and refined proposals.”

The proposed amendments to the Rules of Judicial Administration would have recognized 3 types of representations “creating the designations of lead counsel (the attorney principally responsible for the representation of a party); additional counsel (coverage and attorneys in a law firm or governmental agency); and limited representation counsel (an attorney for a party or nonparty who provides limited representation).” Each type of representation would have its own rules for appearance and termination of appearance.

The Court explained that “how counsel appear in a case and different attorneys’ level of involvement in a case vary among practice areas and the different courts throughout the state.” While observing that the attempt to develop comprehensive rules in this area was “laudable,” the Court concluded that “more refined rules that address these matters for each of the various practice areas should be considered; and there should be more active involvement of and communication between all the affected rules committees before new proposals are finalized.”

Additionally, the Court was concerned that “the attempt to merge the work of the Vision 2016 Commission concerning limited representation counsel for pro se litigants with the work of the Rules of Judicial Administration Committee in developing classifications and procedures for the lead and additional counsel designations and a definition of attorney of record resulted in confusing procedures when there is both a lead and a limited representation counsel in a case.”

Justice Lawson specially concurred. In re: Amendments to the Florida Rules of Judicial Administration, Florida Rule of Criminal Procedure 3.010, and Florida Rule of Appellate Procedure 9.440, __ So.3d __ (Fla., No. SC16-1062, 9/7/2017), 2017 WL 3910751.

Professional Ethics Committee publishes proposed advisory opinion addressing dividing fees with out-of-state lawyers who work in firms that have non-lawyer partners. [Added 7/1/17]

At its June 2017 meeting, the Florida Bar Professional Ethics Committee voted to approve Proposed Advisory Opinion (“PAO”) 17-1. The PAO grew out of a request from the Bar’s Vision 2016 Commission and a directive from the Board of Governors. PAO 17-1 concludes that is it ethically permissible for Florida Bar members to co-counsel and divide fees with out-of-state lawyers or law firms located in jurisdictions in which partial non-lawyer ownership of law firms is authorized.

The PAO expressly cautions that it does not address several specific situations: “[T]his opinion does not address a Florida Bar member becoming a partner, shareholder, associate, or other formal arrangement in a law firm that is permitted to have nonlawyer ownership in its home jurisdiction and does so in compliance with the rules of its home jurisdiction. Neither does this opinion address the issue of a Florida Bar member who also is admitted to practice in another jurisdiction where nonlawyer ownership is permitted joining a law firm with nonlawyer owners under the rules of the other jurisdiction.”

Interested Florida Bar members may provide written comments on PAO 17-1 by August 15, 2017, by submitting them to the Florida Bar Ethics Counsel. Proposed Advisory Opinion 17-1.

Supreme Court amends rules of professional conduct and family law procedure to facilitate use of the collaborative law process in family law cases. [Added 5/18/17]

The Florida Supreme Court approved new Rule of Professional Conduct 4-1.19 and amended Family Law Rule of Procedure 12.745 to facilitate use of the “collaborative law process” in dissolution of marriage, paternity, and other family law actions. The Court described the collaborative law process as “a contractual, voluntary, and nonadversarial dispute resolution process, occurring between represented parties, to resolve some family law matters.”

The proposed rules were sent to the Court following the passage of the Collaborative Law Act (Ch. 2016-93, Laws of Florida). The Act provided that it would not take effect until 30 days after the Supreme Court adopted rules of procedure and professional responsibility consistent with the Act.

A version of the proposed rules originally was filed in 2011. The Court declined to approve those proposals because of possible legislative action regarding the collaborative law process. In re Amendments to the Florida Family Law Rules of Procedure, 84 So.3d 257 (Fla. 2012). Following the 2016 legislative action, the Bar and the Rules Committee again proposed rule amendments. At oral argument, concerns were raised about the cost of this voluntary process. As a result, the Court directed the Florida Bar and the Family Law Rules Committee to file a revised proposal. The Court adopted the revised proposal with some modifications. The new rules become effective on July 1, 2017.

New Rule of Professional Conduct 4-1.19. Subdivision (a) requires a lawyer to obtain a client’s informed consent to use the collaborative law process after disclosure of relevant information, including the “benefits and risks” of the process, the fact that participation is voluntary and that the client may terminate participation for any reason, the limitations on the lawyer’s ability to represent the client in subsequent legal proceedings if the collaborative law process is terminated, and “the fees and costs the client can reasonably expect to incur in the collaborative law process, including the fees of the lawyers, mental health professionals, and financial professionals.”

Subdivision (b) requires a written agreement signed by all participating lawyers and clients that, among other things, specifies that the collaborative law process will terminate if any client pursues court action in the matter and that “the clients understand that their lawyers may not represent the clients or any other person before a court in a proceeding related to the collaborative law matter except as provided by court rule.”

Subdivision (c) provides that, before agreeing to represent a client in the collaborative law process, the lawyer “must reasonably inquire whether a prospective client has a history of any coercive or violent relationship with another party in a family law matter.” The lawyer may not represent the client in a collaborative law matter if the client has a history of any coercive or violent relationship with another party, unless certain criteria are met. Additionally, throughout the matter the lawyer “must make reasonable efforts to continue to assess whether a coercive or violent relationship exists.”

Amended Family Law Rule of Procedure 12.745. The amended rule establishes rules of procedure for the collaborative law process. Section (f) of this proposed rule makes it clear that lawyers who represent clients in a collaborative law matter, and other lawyers in their firms, are disqualified from thereafter representing any party in any related proceeding except to request court approval of a settlement reached during the collaborative law process or in specified emergency situations. In re: Amendments to Rule Regulating The Florida Bar 4-1.19 and Florida Family Law Rule of Procedure 12.745 (Collaborative Law Process), __ So.3d __ (Fla., No. SC16-1685, 5/18/2017), 2017 WL _______.

Supreme Court dismisses without prejudice Bar’s petition to amend rules regulating lawyer referral services. [Added 5/3/17]

By order dated May 3, 2017, the Florida Supreme Court dismissed without prejudice the Bar’s petition to amend the rules regulating lawyer referral services. The Court’s short order is reproduced below.

“Previously, in In re Amend. to Rule Reg. The Fla. Bar 4-7.22 – Lawyer Referral Services, 175 So.3d 779, 781 (Fla. 2015), the Court rejected amendments to Rule Regulating the Florida Bar 4-7.22 proposed by The Florida Bar and directed the Bar to propose amendments that ‘preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar.’ In this case, the Bar proposes amendments to rule 4-7.22 that do not comply with the Court’s direction concerning lawyer referral services that are not owned or operated by a member of the Bar and that seek to expand the scope of the rule to include ‘matching services’ and other similar services not currently regulated by the Bar.

"The Court having considered the Bar’s prior petition, the amendments proposed in this case, the comments filed, the Bar’s response, and having had the benefit of oral argument, the Bar’s petition in this case is hereby dismissed without prejudice to allow the members of this Court to engage in informed discussions with the Bar and those who are in favor or against the proposed regulation of matching and other similar services. The Court lacks sufficient background information on such services and their regulation at this time.

"No rehearing will be entertained by this Court.” In Re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7 (Lawyer Referral Services), Case No. SC16-1470, Order dated May 3, 2017.

Bar asks the Supreme Court to approve amendments to relax conflict rules when lawyers provide short-term, limited representation through non-profit organization, court, agency, bar association, and law school programs. [Added 4/13/17]

In March 2017 the Florida Bar petitioned the Supreme Court for approval of two rule changes designed to make it easier and more attractive for lawyers to provide short-term, limited representation through non-profit organization program.

Proposed new Rule 4-6.6 is the primary rule. When a lawyer works through a program sponsored by a non-profit organization, court, government agency, bar association, or ABA-approved law school to provide “short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation,” the conflict of interest rules will be relaxed. Rules 4-1.7 and 4-1.9(a) will apply “only if the lawyer knows” that the representation will involve a conflict. Similarly, conflicts will be imputed under Rule 4-1.10 only if the lawyer providing the services “knows that another lawyer associated with the lawyer in a law firm” has a conflict under Rules 4-1.7 or 4-1.9(a).

Rule 4-1.2(c) would be amended to modify the client consent requirement. Although the client’s informed consent to the limited representation would still be required, the consent could be oral instead of in writing.

Watch sunEthics.com for updates.

Bar petitions Supreme Court for approval of rules that would allow lawyer spouses of active duty military personnel to practice in Florida for limited time under certain conditions. [Added 4/12/17]

In February 2017 the Florida Bar asked the Supreme Court to approve a set of rules (proposed Chapter 21, Rules Regulating The Florida Bar) that would allow lawyer spouses of active duty military personnel to practice in Florida under certain conditions. Key requirements for an applicant to be eligible for “military spouse authorization to engage in the practice of law in Florida” include:

-- Being the spouse of a full-time active duty member of the U.S. armed forces or reserves;

     -- Holding a J.D. degree from an ABA-accredited law school;

     -- Being admitted to the bar of another state after passing a written exam;

     -- Being in good standing in all bars to which the applicant is admitted;

     -- Not being subject to lawyer discipline;

     -- Not having failed the Florida Bar exam within the past 5 years, or having been denied admission for character and fitness reasons; and

     -- Residing in Florida with the service member.

          A lawyer certified to practice under these proposed rules would have the same privileges as any Florida Bar member, except that a lawyer who has not been engaged in the practice of law for at least 3 years must affiliated with a Florida Bar member who will serve as a mentor.
          Watch sunEthics.com for updates.

Professional Ethics Committee adopts advisory opinion on criminal defense lawyers telling clients about company that would finance lawyer’s legal fees through loans to clients. [Added 3/10/17]

The Professional Ethics Committee approved Florida Ethics Opinion 16-2 in response to an inquiry from a Florida lawyer about involvement with a finance company that advances attorney’s fees for criminal cases. In the program inquired about, the lender loans amounts from $5,000 to $15,000. The lender charges a financing fee of between 5% and 15% of the loan amount, and also charges interest at a rate that varies with the borrower’s credit score. The loan transaction is between the finance company and the lawyer’s client. The loan amount, minus the financing fee, is provided to the lawyer. The Committee concluded that this does not violate the rule against splitting legal fees with non-lawyers (Rule 4-5.4(a)). The lawyer does not recoup the finance charge from the client, as doing so would violate Rule 4-1.5(h). The lawyer receives nothing from the finance company other than the fee for representing the client.

The Committee concluded that it was permissible for the lawyer to provide clients with information about the finance company: “[T]the inquirer may provide clients with information about the financing company under the circumstances set forth above if the inquirer does not charge participating clients any higher fee, does not recoup the finance charge from the client, and receives no benefit from the financing company for any client’s participation other than the inquirer’s fees for representation for which the client will repay the finance company. Finally, in order for the inquirer to provide clients with information about the financing company, the terms of the loan must comply with applicable law, which is outside the scope of an ethics opinion.”

Professional Ethics Committee addresses third-party financing of criminal defense legal fees and diving fees with out-of-state lawyers who work in firms that have non-lawyer partners. [Added 2/2/17]

At its January 2017 meeting in Orlando, the Professional Ethics Committee addressed issues of interest. A sunEthics.com summary is below.

Financing criminal defense fees. In November 2016 the Committee published for comment Proposed Advisory Opinion (PAO) 16-2 in response to a Florida lawyer’s inquiry about involvement with a finance company that advances attorney’s fees for criminal cases. In PAO 16-2 the Committee described the operation of the company’s loan program and concluded that it was permissible for the lawyer to inform clients about the company: “[T]the inquirer may provide clients with information about the financing company under the circumstances set forth above if the inquirer does not charge participating clients any higher fee, does not recoup the finance charge from the client, and receives no benefit from the financing company for any client’s participation other than the inquirer’s fees for representation for which the client will repay the finance company.” One comment was received following publication. The Committee considered it and voted to affirm PAO 16-2 as drafted. The commenter has 30 days to request review by the Board of Governors.

Fee division with out-of-state law firms. Responding to a request from the Bar’s Vision 2016 Commission and a directive from the Board of Governors, the Committee voted to draft for consideration a proposed advisory opinion (PAO) that would permit Florida Bar members to divide fees with out-of-state lawyers who practice in jurisdictions in which partial non-lawyer ownership of law firms is authorized. The PAO will expressly state that Florida Bar rules prohibit any non-lawyer ownership of law firms.

Watch sunEthics.com for updates

Florida Bar petitions Supreme Court for amendments to rules regarding soliciting gifts or fiduciary appointments from clients, settling malpractice claims with unrepresented clients, notifying clients when leaving a law firm, using “specialist” or “expert” in advertising, contacting prospective clients, keeping trust funds in credit unions, and protecting trust funds when third parties claim an interest in them. [Added 11/23/16]

On October 26, 2016, the Florida Bar filed three petitions for rule amendments with the Florida Supreme Court. One petition contains various “housekeeping” changes and corrections (Case No. SC-1962). Another petition contains proposed changes to the Law Practice School Practice Program (Case No. SC-1963). The third petition (Case No. SC-1961) contains proposed substantive changes to several rules and comments. Below is a sunEthics.com summary of significant proposed changes.

Gifts and fiduciary appointments from clients. Current Rule 4-1.8(c) prohibits lawyers from soliciting any “substantial” gift (testamentary or otherwise) from a client. The proposed amendment would prohibit lawyers from soliciting any gifts from clients; as the Bar stated in its petition, “[i]t is inappropriate for a lawyer to solicit a gift from a client regardless of size.” The proposed amendment to the Comment to Rule 4-1.8 would specify that a lawyer may prepare a document that appoints the lawyer, the lawyer’s firm, or a relative of the lawyer to a “fiduciary office” (such as personal representative or trustee) only if “the client is properly informed, the appointment does not violate rule 4-1.7, the appointment is not the product of undue influence or improper solicitation by the lawyer, and the client gives informed consent, confirmed in writing.” Additionally, the lawyer should advise the client in writing “that a person who serves as a fiduciary is entitled to compensation, and that the lawyer may be eligible to receive compensation for serving as a fiduciary in addition to any attorneys’ fees that the lawyer or the lawyer’s firm may earn for serving as a lawyer for the fiduciary.”

Settling claims for malpractice. Current Rule 4-1.8(h) addresses both a lawyer’s attempt to prospectively limit his or her malpractice liability and the lawyer’s conduct in settling a malpractice claim with a client or former client. The current version of the rule severely restricts a lawyer’s ability to make an agreement with a client prospectively limiting the lawyer’s liability for malpractice, and further requires that a lawyer may not settle a malpractice claim with an unrepresented client or former client without first advising that person in writing that “independent representation is appropriate” in making the settlement. The proposed change to the rule would change the meaning of the rule (perhaps unintentionally) by prohibiting a lawyer from settling “a claim for prospective malpractice” with an unrepresented client or former client without first advising in writing that independent representation is appropriate (emphasis added). If this change is approved, it is unclear what standard will apply to the settlement of a claim for malpractice that is not “prospective.”

Notifying clients when leaving a firm. The Bar is often asked about application of Rule 4-5.8, and so has proposed changes to the Comment in order to address some of these issues. The text of the rule itself would remain virtually unchanged. Proposed changes to the Comment include:

When a lawyer leaves a firm (or there are other changes to firm composition), the departing lawyer and the firm “should engage in bona fide, good faith negotiations within a reasonable period of time” after the change is known or occurs, and notice to clients must be given “within a reasonable period of time”
Notice to clients made be made by telephone, but “proof of compliance with the requirements of this rule may be difficult unless the notification is in writing”
Clients to whom notice of a change must be given are “current clients for whom the departing lawyer has provided significant legal services with direct client contact,” but no notice need be given to clients with whom the departing lawyer had no direct contact
To comply with the rule, “both departing lawyers and the law firm should be given access to the names and contact information of all clients for whom the departing lawyer has provided significant legal services and with whom the lawyer has had direct contact”
When neither the departing lawyer nor the firm intend to continue representing a client, the client may be notified of this via a joint notice or separately (if the parties cannot agree on a joint notice), but any obligations to give notice, protect the client’s interests upon withdrawal, and obtain court permission where needed “may apply to both the departing lawyer and lawyers remaining in the firm”

Advertising as a “specialist” or “expert.” The Bar’s existing rule was held unconstitutional in Searcy v. Florida Bar, 140 F.Supp.3d 1290 (N.D. Fla. 2015). In response, the Bar has proposed amendments to Rule 4-7.14. The proposed changes would permit a lawyer to use terms such as “specialist” or “expert” if the lawyer is: board certified by the Florida Bar, another state bar, or an “organization whose specialty certification program has been approved by” the ABA or the Florida Bar; or, if the lawyer is not certified, “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.” Lawyers who are not certified but whose claimed specialization or expertise falls within an area of practice under the Florida Certification Plan must include in their ads “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.” Similarly, lawyers who are certified under an ABA-approved plan that has not been approved by the Florida Bar must note in ads that they are “not board certified.”

Contacting prospective clients – solicitation. Following up on a Board of Governors decision that texting prospective clients is no longer considered prohibited as solicitation but instead is permitted if done in compliance with the advertising rules, the Bar has asked the Court to change Rule 4-7.18(a). The proposed rule would redefine prohibited solicitation to include “contact in person, by telephone, [or] by electronic means that include real-time communication face-to-face such as video telephone or video conference.”

Contacting prospective clients – advertising. The proposed amendment to Rule 4-7.18(b) would relax the current requirement that each page of a direct mail advertisement be marked “advertisement.” Instead, the “advertisement” mark must appear only on “each separate enclosure.”

Trust accounts in credit unions. The proposed change to Rule 5-1.1(a)(1) would permit lawyers to hold trust funds in federally insured credit unions.

Obligations regarding disputed funds held in trust. The proposed change to the Comment to Rule 5-1.1 would add citations to 3 disciplinary cases and an ethics opinion in an effort to give guidance to lawyers who hold trust funds in which both the client and a third party claim an interest (e.g., personal injury lawyer holding settlement funds claimed by both client and client’s medical provider).

Florida Bar petitions Supreme Court for amendments to law school practice program and authorized house counsel rules. [Added 11/22/16]

On October 26, 2016, the Florida Bar filed three petitions for rule amendments with the Florida Supreme Court. One petition contains various “housekeeping” changes and corrections (Case No. SC-1962). Another petition contains proposed changes to the Law Practice School Practice Program (Case No. SC-1963) and the third (Case No. SC-1961) contains various other proposed substantive rule changes, including proposed changes to the authorized house counsel rules (Chapter 17, Rules Regulating The Florida Bar).

Law School Practice Program (Chapter 11). Responding to concerns raised by law schools and the Young Lawyers Division, the Bar’s Board of Governors voted to ask the Supreme Court to change the rules regarding character and fitness approval for law students who apply to become certified as legal interns under Chapter 11. The rules currently require a full bar admission background investigation to be satisfactorily completed before a student may be certified as a legal intern. The proposed changes would reduce that requirement to a Level 2 criminal background investigation, which ordinarily takes 1-3 weeks as compared to 6-9 months for the full investigation.

Authorized House Counsel (Chapter 17). Proposed changes to Chapter 17 would allow persons authorized to practice law in a foreign country to be certified by the Supreme Court to act as Authorized House Counsel when working for a business organization located in Florida.

Florida Bar Professional Ethics Committee publishes proposed advisory opinions on waiving advanced costs in personal injury cases and on criminal defense lawyers telling clients about company that would finance lawyer’s legal fees. [Added 10/26/16]

At its October 2016 meeting in Tampa, the Professional Ethics Committee voted to publish the 2 proposed advisory opinions (PAOs) summarized below. Interested bar members may file comments on the PAOs before December 15 by writing to Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300.

Waiving costs in personal injury cases. A Florida lawyer asked the Bar whether it would be ethically permissible to not only waive the attorney’s fee but also waive some or all of the costs the lawyer had advanced on behalf of a client in a personal injury case in which there had been a recovery. The case was settled for an amount that only slightly exceeds the amount of costs advanced by the lawyer. The lawyer is not taking a fee and would like to reduce the amount of costs the client owes the lawyer so that the client may receive some of the proceeds after outstanding medical liens and subrogated interests have been resolved.

In PAO 16-1 the Committee concluded that the proposed conduct is ethically permissible. Rule 4-1.8(e) is inapplicable. Both Rule 4-1.8(e) and Florida Ethics Opinion 96-1 “were intended to prohibit agreements made at the outset of representation for the lawyer to be unconditionally responsible for costs of litigation.” That did not occur here. Further, forgiving costs at the end of the case “will not affect the inquirer’s independent professional judgment during the representation, including giving advice on settlement.

Informing client of company that will finance criminal defense lawyer’s fee. A Florida lawyer asked the Bar about involvement with a finance company that advances attorney’s fees for criminal cases. In PAO 16-2 the Committee described the operation of the company’s loan progran and concluded that it was permissible for the lawyer to inform the client about the company: “[T]the inquirer may provide clients with information about the financing company under the circumstances set forth above if the inquirer does not charge participating clients any higher fee, does not recoup the finance charge from the client, and receives no benefit from the financing company for any client’s participation other than the inquirer’s fees for representation for which the client will repay the finance company. Finally, in order for the inquirer to provide clients with information about the financing company, the terms of the loan must comply with applicable law, which is outside the scope of an ethics opinion.”

Florida Bar petitions the Supreme Court for approval of rules to facilitate collaborative law process in family law. [Added 10/11/16]

In September 2016 the Florida Bar petitioned the Supreme Court for approval of a new Rule of Professional Conduct and amendments to the Family Law Rules of Procedure to facilitate use of the “collaborative law process” in dissolution of marriage, paternity, and other family law actions.

The proposed rules were submitted to the Court in connection with the passage of the Collaborative Law Act (Ch. 2016-93, Laws of Florida) by the Florida Legislature. The Act does not take effect until 30 days after the Supreme Court adopts rules of procedure and professional responsibility consistent with the Act.

Proposed Rule of Professional Conduct 4-1.19. According to the Bar’s petition, proposed Rule 4-1.19 “requires the lawyer to obtain the client’s informed consent after disclosure of specific information before representing a client in the collaborative law process; prohibits the lawyer from representing a client in the collaborative law process unless all participating lawyers and clients sign an agreement setting forth specific requirements; requires the lawyer to assess domestic violence issues initially and continually; and prohibits the lawyer from representing a client in a collaborative law matter where domestic violence issues are present except under specified circumstances.”

Proposed Family Law Rule of Procedure 12.745. This proposed rule establishes rules of procedure governing the collaborative law process. Section (f) of this proposed rule makes it clear that lawyers who represent clients in a collaborative law matter, and lawyers in their firms, are disqualified from thereafter representing any party in any related proceeding except to request court approval of a settlement reached during the collaborative law process or in specified emergency situations.

Watch sunEthics.com for updates.

Supreme Court rejects third Florida Bar proposal to authorize lawyers to handle “extraordinary” lien resolution services on referral from personal injury lawyer. [Added 10/7/16]

The Florida Supreme Court rejected the Florida Bar’s latest proposal for adoption of a rule change that would permit personal injury lawyers who have cases requiring “extraordinary” lien resolution or subrogation services to engage a separate lawyer to handle those aspects of the cases. The lien resolution lawyer would charge a separate fee that, when combined with the primary lawyer’s fees for the underlying case, could not exceed the Rule 4-1.5(f)(4) contingent fee schedule for personal injury and wrongful death matters unless court approval was obtained.

The Bar previously proposed a lien resolution services rule that would have allowed lawyers who handled “extraordinary” lien resolution services on a referral from a personal injury lawyer to do so for a separate fee that did not require court approval and did not count toward the maximum allowable fee charged by the personal injury lawyer. The Court rejected that proposal, commenting that “lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case.” In re: Amendments to the Rules Regulating The Florida Bar (Biannual Report), 101 So.3d 807, 808 (Fla. 2012).

The Bar filed a revised proposal in 2014, but withdrew it after oral argument. See In re: Amendments to Rule Regulating The Florida Bar 4-1.5 – Fees and Costs for Legal Services, 175 So.3d 276 (Fla. 2015).

The Bar’s third proposal attempted to address concerns of the Court. For example, the Bar added a provision that would have more specifically defined “extraordinary” services and would have required court approval if the combined fees of the primary lawyer and the lien resolution lawyer were to exceed the Rule 4-1.5(f)(4) maximum contingent fee schedule for personal injury and wrongful death matters. Despite the changes, the Court again rejected the Bar’s proposed rule.

The Court explained: “On balance, we wish to reemphasize that lawyers representing clients in personal injury, wrongful death, or other cases where there is a contingent fee should, as part of the representation, also represent those clients in resolving medical liens and subrogation claims related to the underlying case. This should be done at no additional charge to the client beyond the maximum contingency fee, even if the attorney outsources this work to another attorney or non-attorney. Although it may be true that, given the increased complexity of modern litigation, there will be some cases where the amount of work required to resolve a lien is more than initially anticipated, the notion of the percentage fee contract contemplates that there will be some cases that are profitable for the lawyer handling the claim and others that are unprofitable. That risk and reward is built into the contingency fee contract. If the circumstances of a particular case are such that the fee generated under the contingency fee agreement is expected to be insufficient for the work of resolving any outstanding lien, the attorney and client can seek leave of court pursuant to rule 4-1.5(f)(4)(B)(ii) of the Rules Regulating the Florida Bar to obtain an increased fee appropriate for the circumstances of the specific case.”

Supreme Court amends ethics rules to address technological competence and requires 3 CLE hours in technology every 3 years (increasing total required CLE hours to 33 every 3 years). [Added 9/29/16]

Responding to a petition filed in April 2016 by the Florida Bar, the Supreme Court approved technology-related revised to 2 Rules Regulating The Florida Bar. The rule changes are effective January 1, 2017. Key provisions include:

Rule 4-1.1 (Competence). The Court amended the Comment to Rule 4-1.1 to specify that competent representation of clients may “involve the association or retention of a non-lawyer advisor of established technological competence” and “also involves safeguarding confidential information relating to the representation, including, but not limited to, electronic transmissions and communications.” In order to maintain the required level of competence, lawyers must stay abreast of developments in technology.

New technology CLE requirements. The Court amended the continuing legal education regulations in Rule 6-10.3 to add a requirement that lawyers complete a minimum of 3 hours of CLE on technology every 3 years. This increases the number of CLE hours required every 3 years from 30 to 33. In re: Amendments to Rules Regulating The Florida Bar 4-1.1 and 6.10.3, __ So.3d __ (Fla., No. SC16-574, 9/29/2016), 2016 WL _______.

Board of Governors petitions Supreme Court for approval of changes to rules governing referral services and other entities that match potential clients with lawyers. [Added 8/16/16]

On August 15, 2016, the Florida Bar Board of Governors filed a petition asking the Florida Supreme Court to approve changes to the rules governing referral services and other entities that match potential clients with lawyers. The substantive proposed changes are to Rule 4-7.22, with conforming changes to several other rules (4-7.12, 4-7.13, 4-7.15) and deletion of one rule (4-7.23). A sunEthics.com summary of significant proposed changes appears below.

Scope and definitions. Under the proposed rules, the term “lawyer referral service” would be broadened to “qualifying provider.” The intent is to include online matching or lead-generating services in addition to traditional referral services. Proposed Rule 4-7.22(b) defines qualifying provider as “any person, group of persons, association, organization, or entity that receives any benefit or consideration, monetary or otherwise, for the direct or indirect referral of prospective clients to lawyers or law firms,” including, but not limited to: (1) “matching” prospective clients with lawyers or law firms; (2) group or pooled advertising programs, as those are defined under existing Rule 4-7.22(c); (3) publishing in any media a listing of lawyers or law firms; or (4) providing “tips or leads” for clients to lawyers or law firms. Proposed rule 4-7.22(c) excludes from this definition pro bono referral programs and local or voluntary bar association listings.

Responsibilities of participating lawyers. Under proposed Rule 4-7.22(a), lawyers may not participate with a qualifying provider unless it complies with applicable Rules Regulating The Florida Bar. A participating lawyer “is responsible for the qualifying provider’s compliance with” Rule 4-7.22 if: (1) “the lawyer does not engage in due diligence in determining the qualifying provider’s compliance” before beginning participation with the provider; or (2) the Bar “notifies the lawyer that the qualifying provider is not in compliance and the lawyer does not cease participation” with the provider within 30 days. Proposed changes to the Comment to Rule 4-7.22 discuss “due diligence,” but do not address how the Bar would determine “compliance” for purposes of notifying lawyers who would then cease participation.

Qualifying provider compliance. Proposed Rule 4-7.22(d)(6) would prohibit lawyers from participating with a qualified provider unless the provider provides participating lawyers “with documentation that the qualifying provider is in compliance with” Rule 4-7.22.

Referrals to other professions or services. Proposed Rule 4-7.22(d)(4) would prohibit lawyers from participating with a qualified provider if the provider directly or indirectly requires the lawyer to refer or connect prospective clients to any other person or entity for other services or places “any economic pressure or incentive on the lawyer to make such referrals.” Proposed changes to the Comment to Rule 4-7.22 specify that accepting referrals “must not interfere with the lawyer’s professional judgment in representing clients and that a lawyer “may not refer clients to the qualifying provider, a beneficial owner of the qualifying provider, or an entity owned by the qualifying provider or a beneficial owner of the qualifying provider, unless the requirements of rules 4-1.7 and 4-1.8 are met and the lawyer provides written disclosure of the relationship to the client and obtains the client’s informed consent confirmed in writing.”

Fees charged by qualifying providers. Proposed Rule 4-7.22(d)(2) would continue the current requirement that prohibits lawyers from participating with a non-Bar-sponsored qualified provider if the provider receives a fee or charge that is considered a division or sharing of fees. Proposed changes to the Comment to Rule 4-7.22 would clarify what is considered improper fee sharing: “A fee calculated as a percentage of the fee received by a lawyer, or based on the success or perceived value of the case, would be an improper division of fees. Additionally, a fee that constitutes an improper division of fees occurs when the qualifying provider directs, regulates, or influences the lawyer’s professional judgment in rendering legal services to the client.”

Registration with Florida Bar. Under current rules, lawyer referral services must file a list of participating lawyers with the Bar on a quarterly basis. Proposed Rule 4-7.22(d)(5) would change this to an annual filing. Additionally, proposed Rule 4-7.22(e)(1) would require that each participating lawyer notify the Bar within 15 days of “agreeing to participate or ceasing participation with” a qualifying provider.

Name used by qualifying provider. Proposed Rule 4-7.22(d)(11) would prohibit lawyers from participating with a qualified provider if the provider uses a name or other communication that could lead prospective clients to reasonably conclude that the qualifying provider is a law firm or directly provides legal services to the public.”

Current requirements to be eliminated. The proposed rules would eliminate some requirements that currently apply regarding private lawyer referral services. These include: the required “lawyer referral service” and lawyers-pay-to-participate disclosures in advertisements; and the requirement that participating lawyers be covered by legal malpractice insurance.

Board of Governors approves rule changes to expand number of “emeritus” attorneys available to handle pro bono cases. [Added 8/15/16]

At its July 2016 meeting in Miami Beach, the Florida Bar Board of Governors unanimously voted to approve changes to Chapter 12, Rules Regulating The Florida Bar, which governs “emeritus” lawyers. Emeritus lawyers are authorized to handle pro bono cases.

Under the current rules, only lawyers retired from the Florida Bar or other state bars are eligible to be emeritus lawyers. Seeking to expand the pool of emeritus lawyers available to handle pro bono cases, the Board approved rule changes to add the following to the list of lawyers who may serve as emeritus lawyers: inactive Florida Bar members; retired judges; current and former full-time law professors; and authorized house counsel (see Chapter 17, Rules Regulating The Florida Bar).

The proposed rule change must be approved by the Supreme Court in order to become effective. The Bar expects to file the proposed rule changes with the Court in October.

Watch sunEthics.com for updates.

Board of Governors approves rule change to permit IOTA trust accounts to be held in credit unions. [Added 8/11/16]

At its July 2016 meeting in Miami Beach, the Florida Bar Board of Governors approved changes to the trust accounting rules that would add federally-insured credit unions to the list of financial institutions in which IOTA trust accounts may be held. Currently, IOTA funds may be held only in banks and savings and loans.

The proposed change to Rule 5-1.1 must be approved by the Supreme Court in order to become effective. The Bar expects to file the proposed rule change with the Court in October.

Watch sunEthics.com for updates.

Board of Governors approves changes to rules governing lawyers who participate with entities that connect potential clients with lawyers. [Added 8/2/16]

At its meeting in Miami Beach on July 29, 2016, the Florida Bar Board of Governors voted overwhelmingly to approve changes to the rules governing lawyers’ involvement with entities that connect potential clients with lawyers. The Board’s proposed revisions to Rule 4-7.22 will be filed with the Florida Supreme Court on August 15, 2016. Any changes to the rule must be approved by the Court.

The proposed changes would apply only to non-bar-sponsored referral services (proposed Rule 4-7.22(c)).

The current rules address private, for-profit “lawyer referral services” and “lawyer directories.” The proposed rule replaces those terms with the concept of a “qualifying provider,” which is broadly defined to cover “any person, group of persons, association, organization, or entity that receives any benefit or consideration, monetary or otherwise, for the direct or indirect referral of prospective clients to lawyers or law firms” (proposed Rule 4-7.22(b)).

The proposed rule mandates that lawyers may ethically work with qualifying providers only under certain conditions. Many of those conditions are similar to those contained in the current rules. Some of the proposed changes include:

-- the qualifying provider may not “directly or indirectly require” lawyers to connect clients with other persons or entities for other services, and may not put “economic pressure or incentive” on the lawyer to do so (proposed Rule 4-7.22(d)(4));

-- the qualifying provider must provide participating lawyers with documentation showing that it complies with bar rules (this is an interesting requirement in view of the fact that the Bar does not, and will not, “approve” referral services or qualifying providers) (proposed Rule 4-7.22(d)(6));

-- the requirement that lawyers who participate with qualifying providers carry malpractice insurance is eliminated (lawyers generally are not required to have malpractice insurance);

-- participating lawyers must notify the Bar of their involvement or termination of involvement with a qualifying provider within 15 days of beginning or ceasing participation (proposed Rule 4-7.22(e)(e));

-- participating lawyers are responsible for a qualifying providers compliance with the rules if they fail to use due diligence before joining up with a qualifying provider or fail to disengage from a provider after being notified by the Bar of the qualifying provider’s non-compliance (the rule does not specify how the Bar determines a provider’s non-compliance) (proposed Rule 4-7.22(e)(2)); and

-- participating lawyers may pay qualifying providers for referrals as long as such payments do not constitute fee-sharing (for example, payments that are a percentage of a legal fee are improper, while a pay-per-click or pay-per-lead payment may be permissible) (proposed Rule 4-7.22(d)(2) and Comment).

Watch sunEthics.com for updates.

Supreme Court amends Fla.R.App.P. 9.140(g) to address circumstances when sentencing error is identified in course of Anders proceeding. [Added 6/30/16]

In June 2015 the Supreme Court asked its Criminal Court Steering Committee to consider whether the Rules of Appellate Procedure should be amended “to address the circumstances when a sentencing error is identified in the course of an Anders v. California, 386 U.S. 738 (1967), review.” In response to a petition filed by the Steering Committee, the Court amended Rule 9.140(g) as follows. “The existing language in subdivision (g) is renumbered subdivision (g)(1) and given the title ‘Briefs on the Merits.’ Subdivision (g)(1) includes initial briefs filed pursuant to new subdivision (g)(2)(A), which addresses the circumstances when an arguable issue is identified in the course of an Anders review. In addition, the word ‘transmission’ is substituted for the word ‘service.’ New subdivision (g)(2)(A) codifies Anders case law. New subdivision (g)(2)(B) specifically addresses the handling of unpreserved sentencing, disposition, or commitment order errors, and allows for a motion to be filed in the trial court to correct the error. Specifically, subdivision (g)(2)(B) governs whether the brief should be struck for filing of a [Fla.R.Crim.P.] 3.800(b)(2) motion to correct an unpreserved sentencing error, or a [Fla.R.Juv.P.] 8.135(b)(2) motion to correct an unpreserved disposition or commitment error. Finally, the last sentence in subdivision (g)(2)(B) allows the court to set deadlines in order to keep the case on track for timely disposition.” In re: Amendments to Florida Rule of Appellate Procedure 9.140, __ So.3d __ (Fla., No. SC15-2296, 6/30/2016), 2016 WL _______.

Professional Ethics Committee acts on waiving costs in personal injury cases, finance companies that advance fees in criminal cases, and Florida lawyers working with non-Florida firms that permit non-lawyer ownership. [Added 6/22/16]

At its meeting in Orlando on June 18, 2016, the Professional Ethics Committee took action on several issues of interest to Florida lawyers. A sunEthics.com summary of these actions appears below.

Waiving costs in personal injury cases. A Florida lawyer asked the Bar’s Ethics Department whether it would be ethically permissible to not only waive the attorney’s fee but also waive some or all of the costs the lawyer had advanced on behalf of a client in a personal injury case in which there had been a recovery. The Bar staff concluded that the costs waiver was not permissible because Rule 4-1.8(e) prohibits financial assistance to a client. The Professional Ethics Committee overruled the staff opinion and voted to publish Proposed Advisory Opinion (“PAO”) 16-1, concluding that the waiver was permissible. PAO 16-1 was published in the July 15, 2016, issue of the Florida Bar News, and interested bar members may submit comments to the Committee regarding the proposed opinion within 30 days of the publication date.

Finance companies advancing fees in criminal cases. A Florida lawyer asked the Bar’s Ethics Department about involvement with a finance company that advances attorney’s fees for criminal cases. The Committee voted to draft an opinion for consideration that addresses issues presented by the request. The Committee will review the draft at its next meeting, which is tentatively scheduled for October 2016 in Tampa.

Working with non-Florida firms that permit non-lawyer ownership. At the request of the Vision 2016 Bar Admissions Committee, the Professional Ethics Committee voted to seek permission from the Board of Governors to publish a proposed advisory opinion addressing an issue presented when Florida lawyers work on cases with firms outside of Florida. The proposed advisory opinion would conclude that it is ethically permissible for Florida Bar members to divide fees with out-of-state lawyers with whom bar members are otherwise authorized to divide fees, even though those lawyers are in firms in which there is nonlawyer ownership because nonlawyer ownership is allowed in that jurisdiction.

Board of Governors approves changes to Rule 4-1.8 concerning gifts from clients to lawyers and the naming of lawyers as personal representatives or trustees. [Added 6/2/16]

At its May 2016 meeting, the Board of Governors approved changes to Rule 4-1.8 regarding gifts from clients to lawyers and the naming of lawyers as personal representatives or trustees. The changes were proposed by the Bar’s Real Property Probate and Trust Law Section. The proposed rule changes are expected to be filed with the Supreme Court in the fall of 2016.

Soliciting gifts. Rule 4-1.8(c) presently prohibits lawyers from soliciting any “substantial” gifts from clients. The proposed change deletes the word “substantial,” making it unethical for a lawyer to solicit any gift from a client (unless the client is a close relative of the client, such as a parent, child, or spouse).

Soliciting fiduciary appointments. The Comment to Rule 4-1.8 currently addresses the potential conflict presented by a lawyer preparing a document (such as a will) that names the lawyer as a fiduciary such as a personal representative or trustee. The proposed change strengthens the language in the Comment to clarify that this situation always presents a conflict under Rule 4-1.7 that requires the client’s informed consent, confirmed in writing.

Watch sunEthics.com for updates.

Bar petitions Supreme Court to add technology-related provisions to competence rule and to require additional hours of CLE devoted to technology. [Added 5/30/16]

On April 4, 2016, the Bar filed a petition asking the Supreme Court to approve several technology-related revisions to the Rules Regulating the Florida Bar. Key provisions include the following.

Rule 4-1.1 (Competence). The proposed amendment to the Comment to Rule 4-1.1 would specify that competent representation of clients may “involve the association or retention of a non-lawyer advisor of established technological competence” and “also involves safeguarding confidential information relating to the representation, including, but not limited to, electronic transmissions and communications.” In order to maintain a level of competence, lawyers must stay abreast of developments in technology.

New CLE requirements. The proposal would amend the continuing legal education regulations (Rule 6-10.3) to add a requirement that lawyers complete a minimum of 3 hours of CLE on technology every 3 years. If approved, this will increase the number of CLE hours required every 3 years from the current 30 to 33.

Watch sunEthics for further developments regarding these proposals.

Board of Governors will vote on changes to trust accounting rules to allow trust accounts to be held in credit unions and clarify lawyers’ duties to protect funds in which non-clients may have interest. [Added 4/13/16]

At its meeting in Palm Beach in May 2016, the Board of Governors will vote on several proposed changes to the Rules Regulating The Florida Bar, including changes to the trust accounting rules. The trust account proposals include the following.

Trust accounts in credit unions. Rule 5-1.1 would be amended to add federally insured credit unions to the list of approved institutions for lawyer trust accounts.

Duties to non-clients who claim an interest in trust funds. The Comment to Rule 5-1.1 would be amended to provided examples of situations where a lawyer must protect and acknowledge a third party’s alleged interest in trust account funds. One example states: “Under certain circumstances lawyers may have a legal duty to protect funds in the lawyer's trust account that have been assigned to doctors, hospitals or other health care providers directly or designated as Medpay by an insurer. [Citing to Florida Bar v. Silver, 788 So.2d 958 (Fla. 2001); Florida Bar v. Krasnove, 697 So.2d 1208 (Fla. 1997); Florida Bar v. Neely, 587 So.2d 465 (Fla. 1991); Florida Ethics Opinion 02-4.]”

A second example, deals with lawyers acting as escrow agents: “The obligations of a lawyer under this chapter are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves only as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction and is not governed by this rule. However, where a lawyer is an escrow agent and represents a party to a transaction involving the escrowed funds, the Supreme Court of Florida has held that lawyers acting as escrow agents have a fiduciary duty to protect the interests of all parties having an interest in escrowed funds whether the funds are in a lawyer's trust account or a separate escrow account. [Citing Florida Bar v. Golden, 455 So.2d 1286 (1990); Florida Bar v. Hines, 39 So.3d 1196 (Fla. 2010); Florida Bar v. Marrero, 187 So.3d 1020 (Fla. 2015).]”

Supreme Court amends Rule of Judicial Administration 2.535 to clarify that live court reporters must be used in all death penalty trials and capital postconviction proceedings. [Added 3/28/16]

On its own motion, the Florida Supreme Court amended Fla.R.Jud.Admin. 2.535 to clarify its intent. To ensure the accuracy of transcripts, “the rule requires the use of a live court reporter in all trials in which the state seeks the death penalty and in all capital postconviction proceedings.” The revised rule became effective immediately, although the Court provided a 60-day period in which interested persons could file comments on the rule. In re: Amendments to Florida Rule of Judicial Administration 2.535, __ So.3d __ (Fla., No. SC16-330, 3/24/2016), 2016 WL 1165427.

Bar asks Supreme Court to approve rule specifying when and under what limited conditions personal injury lawyer may refer case requiring “extraordinary” lien resolution services to another lawyer who would perform those services. [Added 2/22/16]

The Supreme Court previously rejected the Bar’s proposals to allow lawyers who handled lien resolution services on a referral from a personal injury lawyer to do so for a separate fee that did not count toward the maximum allowable fee charged by the personal injury lawyer. See In re: Amendments to Rule Regulating The Florida Bar 4-1.5 – Fees and Costs for Legal Services, 175 So.3d 276 (Fla. 2015); In re: Amendments to the Rules Regulating The Florida Bar (Biannual Report), 101 So.3d 807 (Fla. 2012).

On January 15, 2016, the Bar filed with the Court a substantially revised version of a proposed lien resolution services rule. Key elements of proposed new Rule 4-1.5(f)(4)(E) include:

-- The lawyer handling the underlying personal injury or wrongful death case (the “primary lawyer”) must provide “ordinary” lien and subrogation resolution services as part the representation

-- The primary lawyer’s fee agreement with the client must state “whether the matter may involve extraordinary lien and subrogation resolution services requiring additional fees”

-- “Ordinary” lien and subrogation resolution services are services provided by the primary lawyer that include reasonable efforts to negotiate and resolve liens to either conclusion or impasse, but do not include filing or defending a separate proceeding to resolve these liens

-- “Extraordinary” lien and subrogation resolution services are services provided after impasse beyond the reasonable and ordinary negotiation of liens and subrogation claims that involve resolution of complex lien and subrogation claims (e.g., ERISA, Medicare, Medicaid, and statutory hospital liens) and may require the initiation and defense of separate proceedings

-- Any additional fees charged by the primary lawyer for lien and subrogation resolution services, when combined with the lawyer’s fees for the underlying case, may not exceed the Rule 4-1.5(f)(4) contingent fee schedule for personal injury and wrongful death matters

-- If the primary lawyer is unable to resolve a lien or subrogation issue, an “extraordinary lien and subrogation lawyer” may be brought in to handle those issues – but, if that lawyer’s fee combined with the primary lawyer’s fee would exceed the Rule 4-1.5(f)(4) fee schedule, the lawyers must obtain the client’s written informed consent to the fee and must get court approval of the fee when the additional lawyer is brought in

-- Notably, as part of the court approval process, the court not only must approve the fee but “may also adjust the fee of the primary lawyer, including so that the combined fee of both the primary lawyer and the extraordinary lien and subrogation lawyer do not exceed the contingent fee schedule for personal injury and wrongful death matters set forth in this rule”

The rule does not become effective unless and until the Supreme Court approves it. WatchsunEthics.com for updates.

Professional Ethics Committee votes to pursue adoption of advisory opinion regarding lawyer lobbying Legislature when lawyer’s partner is elected legislator. [Added 1/26/16]

At its meeting in Orlando on January 22, 2016, the Florida Bar Professional Ethics Committee considered a number of issues. One topic addressed by the Committee was possible reinstatement of Florida Ethics Opinion 67-5, regarding conflicts involved for a lawyer lobbying the legislature when the lawyer’s partner is a legislator. Opinion 67-5 was withdrawn by the Board of Governors in February 1999 because the legislature instituted its own conflict of interest policy for public officials. The Professional Ethics Committee voted to recommend that the Board of Governors direct the committee to consider adoption of a proposed advisory opinion on the topic of a lawyer lobbying the legislature when the lawyer’s partner is an elected member of the legislature.

On its own motion, Supreme Court amends Rule Regulating The Florida Bar 10-9.1 regarding advisory opinions in connection with civil suits alleging unlicensed practice of law. [Added 10/23/15]

The Florida Supreme Court, on its own motion, amended Rule Regulating The Florida Bar 10-9.1, which sets forth the procedures for issuance of advisory opinions on the unlicensed practice of law (“UPL”). Paragraph (c) of the rule addresses when an advisory opinion may be rendered in connection with a civil suit alleging UPL.

“In our opinion in The Florida Bar Re: Advisory Opinion – Scharrer v. Fundamental Administrative Services, No. SC14-1730 (Fla. Oct. 15, 2015), we clarified that the decision in Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905 (Fla. 2010), requires that a civil complaint alleging a cause of action for damages based on the unlicensed practice of law must allege that this Court has ruled that the specified conduct at issue is the unlicensed or unauthorized practice of law, and that, if this Court has not yet ruled that the actions at issue constitute unlicensed practice, the civil case may be dismissed without prejudice or stayed until the parties can seek such a determination. We also concluded that the language in Bar Rule 10-9.1(c), requiring that a civil suit be ‘voluntarily dismissed’ without prejudice, is inconsistent with Goldberg. Accordingly, we hereby amend Rule Regulating the Florida Bar 10-9.1(c) as set forth in the appendix to this opinion, to remove the requirement for a ‘voluntary’ dismissal.” In Re: Amendments to Rule Regulating The Florida Bar 10-9.1, __ So.3d __ (Fla., No. SC14-687, 10/15/2015), 2015 WL 6017300.

Board of Governors affirms Proposed Advisory Opinion 14-1 regarding duties of lawyers in advising clients to “clean up” their social media pages before litigation is filed. [Added 10/19/15]

At its October 2015 meeting in Jacksonville, the Florida Bar Board of Governors considered comments received from Bar members regarding

Florida Ethics Opinion 14-1. Opinion 14-1 addresses a lawyer’s ethical obligations in advising clients to “clean up” their social media pages before suit is filed in order to remove embarrassing information that the lawyer believes is not material to the likely litigation. PAO 14-1 was published in the February 15, 2015, issue of the Florida Bar News and affirmed by the Professional Ethics Committee in June 2015 after reviewing comments from interest Bar members.

The essential principles of the opinion are summarized in the closing paragraph of Opinion 14-1: “[T]he inquirer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the inquirer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved.”

Board of Governors votes unanimously to reject admission on motion to the Florida Bar, with or without reciprocity. [Added 10/16/15]

At its meeting in Jacksonville on October 16, 2015, the Florida Bar Board of Governors voted on a recommendation that had been made by a sub-committee of the Bar's Vision 2016 Commission. After studying the issue, the sub-committee had recommended that the Board consider approving some form of admission on motion to the Florida Bar. The Board voted unanimously to reject admission on motion, with or without reciprocity.

Supreme Court rejects proposed changes to lawyer referral service rules, instead directing Florida Bar to develop a proposal that would require for-profit referral services to be lawyer owned or operated. [Added 9/27/15]

The Florida Supreme Court rejected the Florida Bar’s proposed amendments to the rule regarding lawyer referral services, Rule 4-7.22.

In October 2014, the Bar filed a petition requesting that the Court amend Rule 4-7.22 in several respects. The proposals would have added requirements that apply when lawyers participate in lawyer referral services. The Bar’s petition resulted from recommendations by the Bar’s Special Committee on Lawyer Referral Services and mostly related to private (i.e., not bar-sponsored) referral services. Under the amendments proposed by the Bar and rejected by the Court, a lawyer may not accept referrals from a lawyer referral service unless: the service does not require, or economically pressure, lawyers to refer clients to anyone for other services (e.g., medical services); and does not use a misleading name (e.g., one indicating that the service can provide legal services). Additionally, the Bar’s rejected proposal provided that lawyers who accept referrals from a lawyer referral service must: designate a lawyer in the firm responsible for answering Bar inquiries; pay an administrative fee to the Bar; not make initial contact with a prospective client referred by the service in violation of advertising or solicitation rules; not refer clients to anyone in exchange for referrals from the service; not accept referrals that interfere with the lawyer’s independence of professional judgment; not refer clients to the service or its owners without complying with conflict of interest rules; and provide written disclosure to clients that they were referred from the service and, if the lawyer paid to receive referrals, provide written disclosure of that fact.

The Court appeared to base its concerns about “potential harm” to the public “from for-profit lawyer referral services that also refer clients to other businesses” on what it described as “anecdotes” from the Report of the Bar’s Special Committee on Lawyer Referral Services.

The Court directed the Bar “to propose amendments to rule 4-7.22 that preclude Florida lawyers from accepting referrals from any lawyer referral service that is not owned or operated by a member of the Bar. We further instruct the Bar to review any other rules or regulations that address lawyer referral services to determine whether new rules are necessary to implement our direction today. Based upon this review, the Bar may conclude that amendments to, or repeal of, other rules are required.” The Bar’s proposal is to be submitted to the Court on or before May 24, 2016. In re: Amendments to Rule Regulating The Florida Bar 4-7.22 – Lawyer Referral Services, __ So.3d __ (Fla., No. SC14-2126, 9/24/2015), 2015 WL 5601496.

Supreme Court approves stay and directs Florida Bar to submit new proposal for rule regarding fees for extraordinary lien resolution services. [Added 9/21/15]

In 2012 the Supreme Court rejected a proposal from the Bar that would have allowed a personal injury lawyer handling a case that required “extraordinary subrogation or lien resolution services” to refer that matter to someone outside the lawyer's law firm for these services, with that person or entity charging the client a separate fee (with the referring lawyer not sharing in that fee). The Court made it clear that it disagreed with the underlying premise. “After considering the concerns raised in the comment and the discussion at oral argument, we decline to adopt new subdivision (f)(4)(E). Indeed, we take this opportunity to clarify that lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case.” In re: Amendments to the Rules Regulating The Florida Bar (Biannual Report), 101 So.3d 807 (Fla. 2012).

The Bar reworked the lien resolution services proposal and submitted the revised version to the Court in in October 2014. After oral argument in May 2015, the Bar petitioned the Court for a stay to allow the Bar to submit a third proposal on the subject.

On September 17, 2015, the Court granted the Bar’s motion for stay, stating that the Bar “is directed to file a new petition with its alternative proposal on or before January 15, 2016.” In re: Amendments to Rule Regulating The Florida Bar 4-1.5 – Fees and Costs for Legal Services, __ So.3d __ (Fla., No. SC14-2112, 9/17/2015).

Supreme Court approves rule defining retainers, flat fees, and advance fees and specifying how they should be handled for trust accounting purposes. [Added 9/19/15]

In October 2014 the Florida Bar filed a petition asking the Supreme Court to approve changes to Rule 4-1.5 regarding attorney’s fees. On September 17, 2015, the Court approved one aspect of the Bar’s proposals. The revised rule is effective October 1, 2015.

The Court amended Rule 4-1.5 to provide definitions for “retainer,” “flat fee,” and “advance fee.” The Comment to Rule 4-1.5 was revised to specify how each of these types of fees should be treated for trust accounting purposes.

New Rule 4-1.5(e)(2)(A) defines a “retainer” as “a sum of money paid to a lawyer to guarantee the lawyer’s future availability.” It is “not payment for past legal services and is not payment for future services.”

New Rule 4-1.5(e)(2)(B) defines “flat fee” as “a sum of money paid to a lawyer for all legal services to be provided in the representation.” Consistent with the existing Comment to Rule 4-1.5, a flat fee may be designated as “non-refundable,” but it remains subject to the prohibition against excessive fees.

New Rule 4-1.5(e)(2)(C) defines an “advance fee” as “a sum of money paid to the lawyer against which the lawyer will bill the client as legal services are provided.”

Regarding trust account treatment of these types of fees, the revised Comment to Rule 4-1.5 specifies: “A nonrefundable retainer or nonrefundable flat fee is the property of the lawyer and should not be held in trust. If a client gives the lawyer a negotiable instrument that represents both an advance on costs plus either a nonrefundable retainer or a nonrefundable flat fee, the entire amount should be deposited into the lawyer’s trust account, then the portion representing the earned nonrefundable retainer or nonrefundable flat fee should be withdrawn within a reasonable time. An advance fee must be held in trust until it is earned.” In re: Amendments to Rule Regulating The Florida Bar 4-1.5 – Fees and Costs for Legal Services, __ So.3d __ (Fla., No. SC14-2112, 9/17/2015)

Florida Bar Board of Governors votes to add technology-related amendments to Rules of Professional Conduct and to adopt CLE requirements in technology. [Added 7/30/15]

At its meeting in Miami on July 25, 2015, a majority of the Florida Bar Board of Governors voted to pass 2 rule changes relating to lawyers and their knowledge of technology.

The Board overwhelmingly approved changes to the Comment to Rule of Professional Conduct 1.1, regarding competence in the practice of law. To become effective, these changes must be approved by the Florida Supreme Court. A new provision of the Comment would provide: “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.” A sentence in the existing Comment would be amended to add the underscored phrase: “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.” These rule changes will be submitted to the Supreme Court for approval at a later date.

A more controversial rule change also was approved by the Board in a close vote. If approved by the Supreme Court, Bar members will be required to take 3 hours of CLE every 3 years devoted to technology. To accommodate the new technology hours, the total number of CLE hours required for Florida lawyers would be increased to 33 hours every 3 years (from the present 30). The rule change will be submitted to the Supreme Court for approval at a later date.

Supreme Court denies petition to authorize Florida Bar to raise membership fees by up to $100 per year to be used for legal aid to the poor. [Added 7/9/15]

Using a procedure authorized under Rule 1-12(f), Rules Regulating The Florida Bar, 522 Bar members joined in a petition asking the Supreme Court to amend the Rules Regulating The Florida Bar. The proposed amendment to Rule 1-7.3 would authorize the Bar’s Board of Governors to raise annual membership fees by up to $100 in order to provide additional funding for the Legal Aid to the Poor Program of the Florida Bar Foundation. The Board of Governors opposed the proposed amendment.

The Supreme Court denied the petition “because we believe this issue requires further study and a more comprehensive approach.” The Court concluded that the proposal “does not present the type of comprehensive solution that is needed to address the crisis in funding for legal aid.”

Justice Pariente wrote a concurring opinion, concurred in by Chief Justice Labarga, explaining that she concurred in the majority’s decision to “deny the petition at this time” because “the petition does not require The Florida Bar to raise the annual membership fee, and the Bar has steadfastly opposed the approach suggested by the Petitioners.”

Justice Quince Quince and Justice Lewis each wrote dissenting opinions. In re: Amendments to Rule Regulating The Florida Bar 1-7.3, __ So.3d __ (Fla., No. SC14-1165, 7/9/2015), 2015 WL 4112407.

Professional Ethics Committee affirms Proposed Advisory Opinion 14-1 regarding duties of lawyers in advising clients to "clean up" their social media pages before litigation is filed. [Added 6/30/15]

At its meeting in Boca Raton on June 25, 2015, the Florida Bar Professional Ethics Committee considered comments received from Bar members regarding Proposed Advisory Opinion ("PAO") 14-1, which addresses a lawyer’s ethical obligations in advising clients to "clean up" their social media pages before suit is filed in order to remove embarrassing information that the lawyer believes is not material to the likely litigation. PAO 14-1 was previously published in the February 15, 2015, issue of the Florida Bar News along with a notice inviting comments from interest Bar members.

After considering the comments received, the Committee voted to make several slight modifications to PAO 14-1 and then unanimously approved the revised version. Persons who filed comments with the Committee have until approximately July 29, 2015, in which to request Board of Governors review of PAO 14-1. If no such requests are timely received, the opinion will become final.

The essential principles are summarized in the closing paragraph of PAO 14-1: "[T]he inquirer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, the inquirer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as the social media information or data is preserved."

Watch sunEthics.com for updates.

Supreme Court amends Rules Regulating The Florida Bar on lawyer discipline, confidentiality, trust accounting, professionalism, and others. [Added 6/12/15]

Responding to a petition from the Florida Bar as part of its biennial rules filing, the Supreme Court approved a number of changes to the Rules Regulating The Florida Bar. The Court also declined to approve some proposed changes. The changes are effective October 1, 2015. Below is a sunEthics summary of significant rule amendments.

Rule 3-5.1(e) (duration of suspension period). The revised rule deletes language referring to suspension for an indefinite period of time, instead authorizing suspension for a definite period or “until further order of the court.”

Rule 3-5.2(c)-(e) (funds frozen in trust account). The revised rule sets out procedures authorizing referees to determine entitlement to, and oversee disbursement of, funds frozen in a lawyer’s trust account pursuant to an emergency suspension or interim probation order.

Rule 3-5.3(c) (expansion of diversion in disciplinary cases). Previously a lawyer could have only one case every 7 years diverted out of the disciplinary system to a practice and professionalism program (e.g., advertising school, trust accounting school). The revised rule permits one diversion every 5 years “for the same type of rule violation.” A second diversion for a different type of violation cannot occur until one year after the initial diversion.

Rule 3-7.9(d) (consent judgments). The revised rule, adopted on the Court’s own motion, provides that a conditional plea entered into by a respondent and the Bar “may not permit a respondent to begin serving a suspension or disbarment until the Supreme Court of Florida issues an order or opinion approving the recommended discipline.”

Rule 3-7.10(b) (reinstatement procedures). The amended rule specifies that a suspended lawyer may not file a petition for reinstatement until he or she has served at least 80% of the suspension.

Rule 4-1.6(c)(6) (exception to confidentiality rule). This new exception to the lawyer-client confidentiality rule allows lawyers to reveal confidential information to “detect and resolve conflicts of interest between lawyers in different firms” that arise when lawyers change employers or when the composition or ownership of a firm changes. It applies only if revealing the information “would not comprise the attorney-client privilege or otherwise prejudice the client.”

Rule 4-1.6(e) (inadvertent disclosure of confidential information). The new rule requires a lawyer to make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, confidential information. The Court noted that, “as technology continues to evolve, lawyers must make reasonable efforts to prevent the unauthorized or inadvertent disclosure of confidential information.” The revised Comment identifies factors to consider in determining whether a lawyer has acted reasonably under the circumstances.

Rule 4-5.3, Comment (duties regarding nonlawyer assistants). A lawyer must make reasonable efforts to ensure that the conduct of nonlawyer assistants is compatible with the lawyer’s professional obligations. The revised Comment specifies that this duty applies regardless of whether the nonlawyer assistant is an employee or someone outside of the law firm, such as an investigative service, a document management company, or a cloud-based data storage provider.

Rule 5-1.1(a)(1) (depositing own money into trust account). The revised rule authorizes a lawyer to deposit his or her personal funds into the trust account to cover a shortage in the account. A lawyer who does this must immediately notify the Bar of the shortage, the cause for the shortage, and the amount deposited.

Rule 5-1.2(f) (trust account records of dissolved or sold firms). The revised rule specifies that the partners are responsible for retaining the trust account records when a firm dissolves. When a firm is sold the seller must make arrangement for retention of the firm’s trust account records.

Rule 6-12.3 (basic skills professionalism requirement). The professionalism component of the Basic Skills Course Requirement for newly admitted lawyers may now be completed online.

REJECTED proposal; Rule 5-1.2 (annual trust accounting compliance certificate). The Court rejected the proposal to eliminate the requirement that lawyers file an annual trust accounting certificate with the Bar. “We believe that the requirement that lawyers submit a yearly trust account certificate is an important and useful tool in ensuring that lawyers are aware of the trust accounting requirements, and that they affirm their compliance with those requirements. Accordingly, we take this opportunity to make clear that, as required in Bar Rule 5-1.2(d)(5), every member of The Florida Bar must file each year a trust accounting certificate showing his or her compliance with the trust accounting rules. The failure to file the trust accounting certificate will result in the lawyer being deemed delinquent and ineligible to practice.” In re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), __ So.3d __ (Fla., No. SC14-2088, 6/11/2015), 2015 WL 3617835.

Supreme Court approves “housekeeping” changes to the Rules of Professional Conduct regarding duties to prospective clients, misdirected electronic communications, and unauthorized practice of law. [Added 5/21/15]

Responding to a petition from the Florida Bar as part of its biennial rules filing, the Supreme Court approved a number of “housekeeping” changes to the Rules Regulating The Florida Bar. The changes are effective October 1, 2015. Below is a sunEthics summary of significant rule amendments.

Rule 4-1.18, Comment (consultation with prospective client). The rule was amended to add examples to help determine when a “consultation” with a prospective client has occurred. This is important because a lawyer who “consults” with and learns information from a prospective client can be conflicted out of representing someone adverse to that prospective client. One example is a lawyer whose advertising “specifically requests or invites the submission of information about a potential client” without cautionary disclaimers.

Rule 4-4.4(b) (inadvertently sent electronically stored information). This amendment clarifies that a lawyer who receives documents “or electronically stored information” that were inadvertently sent must promptly notify the sending lawyer. The Comment addresses duties regarding “metadata” embedded in electronic documents.

Rule 4-5.5, Comment (practice of law in Florida by out-of-state lawyers). Currently an out-of-state lawyer engages in the unlicensed practice of law by having “an office or other regular presence in Florida for the practice of law.” The amended Comment expands on what is meant by “regular presence.” For example, a lawyer licensed only in another state cannot open an office in Florida, even if the office is limited to the practice of the law of the state where the lawyer is licensed. Also, a lawyer licensed in another state who is admitted pro hac vice for a Florida case may not open an office in Florida to work on the case while it is pending. Additionally, an out-of-state lawyer’s presence in Florida “may be regular even if the lawyer is not physically present here.” In re: Amendments to Rules Regulating The Florida Bar (Biennial Petition Housekeeping), __ So.3d __ (Fla., No. SC14-2107, 5/21/2015), 2015 WL 2401253.

Supreme Court amends Rules of Appellate Procedure to implement mandatory statewide electronic records on appeal. [Added 5/16/15]

The Florida Supreme Court, acting on its own motion, amended Fla.R.App.P. 9.200 to implement mandatory statewide electronic records on appeal. The amendment is effective October 1, 2015.

The Court’s opinion explained some of the provisions of the amended rule: “The transcript of the trial must be kept separate from the remainder of the record on appeal. All pages of the remainder of the record, including the cover page, index, and progress docket, must be consecutively numbered. The entire record, except for the trial transcript, must be compiled into a single text searchable PDF file that must be bookmarked as provided in the rule and paginated to exactly match the pagination of the index of the record on appeal. All filings must be included in the PDF file in their unredacted form. The transcript of the trial must be converted into a second text searchable PDF file that must be paginated to exactly match the pagination of the index of the transcript of the trial filed under subdivision (b)(2) of rule 9.200.”

Additionally, the clerk of the lower court “must transmit the PDF files containing the record and trial transcript to the appellate court via the Florida Courts E-Filing Portal or in accordance with the appellate court’s administrative order governing transmission of the record.” In re: Amendments to Rule of Appellate Procedure 9.200, __ So.3d __ (Fla., No. SC15-765, 5/14/2015), 2015 WL 2236702.

Florida Bar Professional Ethics Committee publishes Proposed Advisory Opinion 14-1 on duties of lawyers in advising clients to “clean up” their social media pages before litigation is filed. [Added 2/4/15]

At its meeting in Orlando on January 23, 2015, the Florida Bar Professional Ethics Committee voted to publish Proposed Advisory Opinion (“PAO”) 14-1, which addresses a lawyer’s ethical obligations in advising clients to “clean up” their social media pages before suit is filed in order to remove embarrassing information that the lawyer believes is not material to the likely litigation.

The essentials of the Committee’s opinion are found in the closing paragraph of PAO 14-1: “In summary, a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.”

PAO 14-1 will be published in the February 15, 2015, issue of the Florida Bar News. Interested bar members will have 30 days from the date of publication in which to file comments on PAO 14-1. Timely comments will be considered by the Professional Ethics Committee at its next meeting.

Florida Bar withdraws its “Guidelines for Advertising Past Results” after federal court finds them unconstitutional. [Added 12/22/14]

The U.S. District Court for the Southern District of Florida granted summary judgment in favor of a lawyer who sued the Florida Bar seeking to invalidate the “Guidelines for Advertising Past Results” that were adopted by the Bar’s Board of Governors in December 2013. In May 2013 the Supreme Court approved Bar-proposed rules allowing lawyers to advertise past results. See Rules of Professional Conduct 4-7.13(b)(2) and 4-7.14 (adopted in In re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7, Lawyer Advertising Rules, 108 So.3d 609 (Fla. 2013). The Bar’s adoption of the “Guidelines,” however, effectively banned past results from “indoor and outdoor display and radio and television media.”

The court ruled that the Guidelines’ interpretation of the rules “to completely prohibit the use of past results in attorney advertising in indoor and outdoor display, television and radio media, contained in the section of the Guidelines titled ‘Unacceptable Media,’ is UNCONSTITUTIONAL in violation of the First Amendment to the United States Constitution.” Accordingly, the court enjoined the Bar “from enforcing Rules [of Professional Conduct] 4-7.13 and 4-7.14 to completely prohibit all reference to past results in attorney advertising in indoor and outdoor display, television and radio media.” Rubenstein v. Florida Bar, __ F.Supp.2d __ (S.D. Fla., No. 14-CIV-20786-BLOOM/Valle, 12/8/2014).

Florida Bar asks the Supreme Court to approve proposed rules on diversion in discipline cases, attorney’s fees, confidentiality obligations and exceptions, duties to prospective clients, supervision of nonlawyer assistants, unauthorized practice of law, lawyer referral services, and others. [Added 11/18/14]

On October 28, 2014, the Florida Bar made its biennial filing asking the Florida Supreme Court to approve changes to the Rules Regulating The Florida Bar. The Bar divided the proposals into 4 separate petitions. The “Biennial” petition (SC14-2088) deals with “those rules that the bar believes may require more consideration and reflection by the Court.” The “Housekeeping” petition (SC14-2107) deals primary with editorial and stylistic changes. The “Rule 4-1.5” petition (SC14-2112) addresses proposed changes to the rule governing attorney’s fees and costs. The “Rule 4-7.22” petition (SC14-2126) proposes changes to the rule regarding lawyer referral services.

Interested Bar members have 30 days in which to file comments on the proposed rule changes. Copies of the petitions and related materials can be found on the Supreme Court’s website.

Below is a sunEthics.com summary of significant proposals.

Rule 3-5.3(c) (expansion of diversion of disciplinary cases). Currently a lawyer may have no more than one case every seven years diverted out of the disciplinary system to a practice and professionalism program (e.g., advertising school, trust accounting school). This proposed amendment would expand the use of diversion by changing the limit to one case every five years “for the same type of rule violation.” A second diversion for a different type of violation could not occur, however, until one year after the initial diversion.

Rule 4-1.5(e)(2) (defining types of fees and their trust account treatment). This proposed amendment defines “retainer,” “flat fee,” and “advance fee.” A “retainer” is a payment to secure a lawyer’s availability; it is not payment for past or future services. A “flat fee” is a payment for all legal services to be provided in a representation. An “advance fee” is a payment given before services are rendered and held in trust by the lawyer to be billed against when the services are provided. Retainers and flat fees may be made nonrefundable by agreement with the client; such fees belong to the lawyer on receipt and so do not go into the trust account. The Comment to Rule 4-1.5 notes that nonrefundable fees remain subject to the prohibition against excessive fees.

Rule 4-1.5(f)(4)(E) (extraordinary lien and subrogation resolution services). This proposal is a second try at adopting a rule that would allow the “primary” lawyer handling a personal injury or wrongful death case to bring in another lawyer to handle “extraordinary” lien or subrogation resolution services for a separate fee. The primary lawyer cannot share in the fee charged by the lawyer handling the lien or subrogation services. The fee charged by the other lawyer for lien or subrogation services does not count against the maximum continent fee cap mandated by Rule 4-1.5(f), but written client consent must be obtained if the combined fees would exceed the fee schedule applicable to the primary lawyer’s fee. (The Comment to Rule 4-1.5 notes that the primary lawyer has an obligation to handle these matters in ordinary cases.)

Rule 4-1.5, Comment (contingent fees in domestic relations cases). This amendment clarifies that, in a domestic relations matter, any “bonus provision or additional fee to be determined at a later time and based on results obtained” violates the prohibition on contingent fees in domestic relations cases. Rule 4-1.6(c)(6) (exception to confidentiality rule). This amendment adds a new exception to the lawyer-client confidentiality rule that allows lawyers to reveal confidential information to “detect and resolve conflicts of interest” that arise when lawyers move between law firms or when the composition or ownership of a law firm changes. This new exception applies only if revealing the information “would not comprise the attorney-client privilege or otherwise prejudice the client.”

Rule 4-1.6(e) (inadvertent disclosure of confidential information). This new provision requires a lawyer to make reasonable efforts to prevent inadvertent or unauthorized disclosure of, or unauthorized access to, confidential information. The Comments discusses factors to be considered in determining whether the lawyer has acted reasonably under the circumstances.

Rule 4-1.18, Comment (consultation with prospective client). The amendment offers examples to help determine when a “consultation” with a prospective client has occurred. This is important because a lawyer who “consults” with and learns information from a prospective client can be conflicted out of representing someone adverse to that prospective client. An example given is a lawyer whose advertising “specifically requests or invites the submission of information about a potential client” without cautionary disclaimers.

Rule 4-4.4(b) (inadvertently sent electronically stored information). This amendment clarifies that a lawyer who receives either documents “or electronically stored information” that was inadvertent sent must promptly notify the sending lawyer. The Comment addresses duties regarding “metadata” embedded in electronic documents.

Rule 4-5.3, Comment (duties regarding nonlawyer assistants). A lawyer has a duty to make reasonable efforts to ensure that the conduct of his or her nonlawyer assistants is compatible with the lawyer’s professional obligations. This amendment makes it clear that this duty applies regardless of whether the nonlawyer assistant is an employee or someone outside of the law firm, such as an investigative service, a document management company, or a cloud-based data storage provider.

Rule 4-5.5, Comment (practice of law in Florida by out-of-state lawyers). An out-of-state lawyer engages in the unlicensed practice of law by having “an office or other regular presence in Florida for the practice of law.” The Comment to Rule 4-5.5 expands on what is meant by a “regular presence” in Florida. For example, a lawyer licensed only in another state cannot open an office in Florida, even if the office is limited to the practice of the law of the state where the lawyer is licensed. Also, a lawyer licensed in another state who is admitted pro hac vice for a Florida case may not open an office in Florida to work on the case while it is pending. Additionally, an out-of-state lawyer’s presence in Florida “may be regular even if the lawyer is not physically present here.”

Rule 4-7.22 (lawyer referral services). This amended rule adds requirements that apply when lawyers participate in lawyer referral services. The amendments resulted from recommendations made by the Bar’s Special Committee on Lawyer Referral Services and relate primarily to private (i.e., not bar-sponsored) lawyer referral services. Among other things, a lawyer may not accept referrals from a lawyer referral service unless: the service does not require, or economically pressure, participating lawyers to refer clients to anyone for other services (e.g., medical services); and does not use a misleading name (such as one that indicates that the service can provide legal services). Additionally, lawyers who accept referrals from a lawyer referral service must: designate a lawyer in the firm responsible for answering Bar inquiries; pay an administrative fee to the Bar; not make initial contact with a prospective client referred by the service in violation of advertising or solicitation rules; not refer clients to anyone in exchange for referrals from the service; not accept referrals if it interferes with the lawyer’s independence of professional judgment; not refer clients to the service or its owners without complying with conflict of interest rules; and provide written disclosure to clients that they were referred from the service and, if the lawyer paid to receive referrals, provide written disclosure of that fact.

Supreme Court adopts minimum standards for lead counsel in capital postconviction proceedings and prohibits defendants sentenced to death from representing themselves in postconviction proceedings. [Added 7/7/14]

Acting in response to proposals submitted by the Capital Postconviction Proceedings Subcommittee of the Criminal Court Steering Committee, the Florida Supreme Court enacted changes to several sets of court rules. Two noteworthy changes were made to the Florida Rules of Criminal Procedure. First, the Court added new subdivision (k) to Rule 3.112, establishing minimum qualifications for lead counsel in capital postconviction proceedings. “Specifically, the lead attorney must have been a member of any state Bar for at least five years, and must have at least three years of experience with postconviction litigation. Additionally, the lead counsel must have participated in a total of five proceedings in any of the following categories: (a) capital trials; (b) capital sentencings; (c) capital postconviction evidentiary hearings; (d) capital collateral postconviction appeals; or (e) capital federal habeas corpus proceedings. At least two of the five proceedings must have been capital postconviction evidentiary hearings or postconviction appeals, or federal habeas proceedings.” The Court disagreed with comments submitted by Capital Collateral Regional Counsel, which urged an additional requirement of experience in handling federal habeas petitions. Instead, the Court stated that the rule it adopted “strikes the appropriate balance between requiring that attorneys have relevant experience, and adopting qualifications standards so stringent that it may prove difficult to find qualified lead counsel in some circuit.” This new rule applies to lawyers appointed or retained after April 1, 2015.

The second change is the addition of new subdivision (b)(6) (“Appointment of Postconviction Counsel”) to rule 3.851 to provide that a defendant sentenced to death may not represent himself or herself in a capital postconviction case in state court. “A defendant sentenced to death does not have a right to self-representation on direct appeal under either the United States or Florida Constitutions, and we have previously held that we will not accept pro se filings in direct appeals in capital cases. . . . We have also held that defendants sentenced to death may not appear pro se in any postconviction appeals. . . . [W] now extend the prohibition against self-representation to include postconviction proceedings in the trial court.” This new rule applies to all postconviction motions filed on or after January 1, 2015. In re: Amendments to the Florida Rules of Judicial Administration; the Florida Rules of Criminal Procedure; and the Florida Rules of Appellate Procedure – Capital Postconviction Rules, __ So.3d __ (Fla., No. SC13-2381, 7/3/2014).

At meeting on Friday June 27, 2014, Professional Ethics Committee approves allowing nonlawyers to affix electronic signatures to documents for lawyers and tables action on issues relating to lawyers advising clients to “clean up” their social media pages before suit is filed. [Added 7/25/14]

At its meeting in Orlando on June 27, 2014, the Professional Ethics Committee addressed several issues of interest.

The Committee approved revisions to existing Opinion 87-11, which originally held that a lawyer may not authorize a nonlawyer to sign the lawyer’s name to notices of hearing and other pleadings. In view of the Supreme Court’s rules regarding electronic filings and electronic signatures (see, e.g., Fla.R.Jud.Admin. 2.515), the Committee amended the opinion to state that “regarding electronic signatures alone that a lawyer may permit a nonlawyer employee to affix the lawyer’s electronic signature using the format indicated by subdivision (c)(1)(C)” of Rule 2.515. Proposed Advisory Opinion 87-11 (Reconsideration) will be published in the Florida Bar News for comment by interested bar members. The text of the proposed opinion also is reproduced below.

On another issue, the Committee considered a draft opinion regarding the ethical obligations relating to lawyers advising clients to “clean up” their social media pages before suit is filed. The Committee will continue to study the issue. At its meeting in Orlando on June 27, 2014, the Professional Ethics Committee will address a number of issues. On the agenda is consideration of draft Proposed Advisory Opinion 14-1, which concerns a lawyer’s ethical obligations in advising clients to “clean up” their social media pages before suit is filed in order to remove embarrassing information that the lawyer believes is not material to the likely litigation.

PROFESSIONAL ETHICS OF THE FLORIDA BAR Proposed Advisory Opinion 87-11 (Reconsideration) [June 27, 2014] A Florida Bar member has asked the committee to reconsider Florida Ethics Opinion 87-11, in light of recent changes to Rule of Judicial Administration 2.515 regarding electronic signatures. In Florida Ethics Opinion 87-11, the committee opined that “an attorney should not under any circumstances permit nonlawyer employees to sign notices of hearing” citing the lawyer’s obligation to comply with rules of court and to avoid assisting in the unlicensed practice of law. Since that opinion was written, the Supreme Court of Florida has required that all documents be filed electronically. In re Amendments to the Florida Rules of Civil Procedure et al., 102 So.3d 451 (Fla. 2012). Subsequent to that order, the Rules of Judicial Administration were amended to address electronic signatures. In re Amendments to the Florida Rules of Judicial Administration et al., 102 So.3d 505 (Fla. 2012). New Rule of Judicial Administration 2.515 states as follows: (a) Attorney Signature. Every pleading and other document of a party represented by an attorney shall be signed by at least 1 attorney of record in that attorney's individual name whose current record Florida Bar address, telephone number, including area code, primary e-mail address and secondary e-mail addresses, if any, and Florida Bar number shall be stated, and who shall be duly licensed to practice law in Florida or who shall have received permission to appear in the particular case as provided in rule 2.510. The attorney may be required by the court to give the address of, and to vouch for the attorney's authority to represent, the party. Except when otherwise specifically provided by an applicable rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by the attorney that the attorney has read the pleading or other document; that to the best of the attorney's knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading or other document had not been served. (b) Pro Se Litigant Signature. A party who is not represented by an attorney shall sign any pleading or other paper and state the party's address and telephone number, including area code. (c) Form of Signature. (1) The signatures required on pleadings and documents by subdivisions (a) and (b) of this rule may be: (A) original signatures; (B) original signatures that have been reproduced by electronic means, such as on electronically transmitted documents or photocopied documents; (C) electronic signatures using the “/s/,” “s/,” or “/s” formats by or at the direction of the person signing; or (D) any other signature format authorized by general law, so long as the clerk where the proceeding is pending has the capability of receiving and has obtained approval from the Supreme Court of Florida to accept pleadings and documents with that signature format. *** In light of the new rule of judicial administration, the committee is of the opinion regarding electronic signatures alone that a lawyer may permit a nonlawyer employee to affix the lawyer’s electronic signature using the format indicated by subdivision (c)(1)(C) above. The committee cautions that although the lawyer may delegate the electronic signing of the document under the rule of judicial administration, the lawyer must “review and be responsible for the work product” as required by Rule 4-5.3(c). Thus, lawyers may only direct a nonlawyer to affix the electronic signature permitted by the rule after reviewing and approving the document to be filed. The committee’s conclusion in Florida Ethics Opinion 87-11, that generally a nonlawyer may not sign pleadings, otherwise remains unchanged.

Florida Bar Board of Governors will not prosecute lawyers who give advice to clients regarding operating medical marijuana business that is legal under state, but not federal, law. {added 6/16/14]

At its May 2014 meeting the Florida Bar Board of Governors addressed the issue of how to treat lawyers who may advise clients about operating medical marijuana businesses that may be legal under state law but still illegal under federal law. Rule of Professional Conduct 4-1.2(d) provides that lawyers may not counsel or assist a client in conduct that the lawyer knows or reasonably should know is criminal or fraudulent.

After discussing a possible rule amendment or issuance of an ethics opinion, the Board decided to adopt the following policy on the subject: “The Florida Bar will not prosecute a Florida Bar member solely for advising a client regarding the validity, scope, and meaning of Florida statutes regarding medical marijuana or for assisting a client in conduct the lawyer reasonably believes is permitted by Florida statutes, regulations, orders, and other state or local provisions implementing them, as long as the lawyer also advises the client regarding related federal law and policy.”

For more information, see this article in the June 15, 2014, issue of the Florida Bar News.

Supreme Court amends the Rules of Criminal Procedure by adopting minimum standards for lawyers in felony cases (including postconviction matters). [Added 5/27/14]

The Florida Supreme Court adopted new Florida Rule of Criminal Procedure 3.113 as proposed by the Court’s Criminal Court Steering Committee. New rule 3.113 “is intended to implement the Florida Innocence Commission’s recommendation that the criminal rules be amended to require that any attorney who is practicing law in a felony case complete at least a two-hour course regarding the law of discovery and Brady [v. Maryland, 373 U.S. 83 (1963)] responsibilities.” Trial judges will give effect to the rule “by not appointing counsel, or removing counsel, in the event that counsel is not in compliance with the rule.”

New rule 3.113 becomes effective on May 15, 2016. In re: Amendments to the Florida Rules of Criminal Procedure – Rule 3.113, __ So.3d __, 39 Fla.L.Weekly S326 (Fla., No. SC13-552, 5/15/2014), 2014 WL 1923498.

Supreme Court approves most rule changes requested by Florida Bar, including revisions to rules governing conflicts and paying witnesses, but rejects proposal to restrict activities of suspended and disbarred lawyers. [Added 3/29/14]

Responding to a petition filed by the Florida Bar in October 2012, the Florida Supreme Court approved all but one of the Bar’s requested rule changes. The amendments to the Rules Regulating The Florida Bar are effective June 1, 2014. Below is a sunEthics summary of notable changes. In re: Amendments to the Rules Regulating The Florida Bar (Biennial Report), __ So.3d __ (Fla., SC12-2234, 3/27/2014).

Rule 4-1.7(d) (conflicts, current clients). This rule was amended “to clarify that family relationships that must be considered as creating conflicts between lawyers include relationships by blood or marriage.” Rule 4-1.7(d) prohibits lawyers related by blood, adoption, or marriage as a parent, child, sibling, or spouse from representing conflicting interests without the clients’ informed consent. In addition to amending the rule, the Court directed the Bar “to study the rule further and consider whether the current categories should be broadened beyond parent, child, sibling, and spouse to include other significant relationships.”

Rule 4-1.9, Comment (conflicts, former clients). The Comment to Rule 4-1.9 was amended to delete an example of misuse of confidential information concerning a former client. The following sentence was deleted: “For example, a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s spouse in seeking a divorce.”

Rule 4-3.4(b) (paying witnesses). Rule 4-3.4(b) was revised to permit lawyers to pay non-expert witnesses for “time spent preparing for, attending, or testifying at proceedings” (new language italicized). This amendment may broaden the ability of lawyers to pay witnesses; the former rule only allowed “reimburse[ment] . . . for preparing for, attending, or testifying at proceedings.

Rule 5-1.2(c) (trust accounting). Every firm with more than one lawyer must have a written plan for compliance with trust accounting rules, and this plan must be “disseminated to each lawyer in the firm.” The rule also sets out requirements for reporting trust account problems within the firm and, if a satisfactory response is not received, to the Bar.

REJECTED proposal; Rule 3-6.1 (activities of suspended/disbarred lawyers). The Bar asked the Court to amend Rule 3-6.1 "to prohibit suspended attorneys and former attorneys who have been disbarred, or whose disciplinary resignations or revocations have been allowed, from representing clients in administrative proceedings and before administrative agencies which allow nonlawyer agents or 'qualified representatives' to represent clients in certain circumstances." The Court rejected this proposal, concluding that it does "not have the authority to prohibit a lawyer from doing non-legal work." In re: Amendments to the Rules Regulating The Florida Bar (Biennial Report), __ So.3d __ (Fla., SC12-2234, 3/27/2014).



Florida Ethics Opinion 12-4, concerning title insurers’ audits of lawyers’ trust accounts under Florida law, becomes final.  [Added 3/14/14]    
 Florida Ethics Opinion 12-4 is now a final advisory opinion.  The opinion answers questions concerning a lawyer’s ethical obligations in light of both the Rules of Professional Conduct and Fla.Stat. sec. 626.8473(8).  The statute requires lawyers to maintain funds received in the capacity of a “title or real estate settlement agent” in a separate trust account and to “permit the account to be audited by its title insurers, unless maintaining funds in the separate account for a particular client would violate applicable rules of The Florida Bar.”    
 The Committee responded to two questions asked by an inquiring member of the Florida Bar. These two questions were:
 “Question 1:  Is an attorney permitted to allow a title insurance company to audit the firm’s special trust account used exclusively for real estate and title transactions without the informed consent of the clients who have no involvement with that particular title insurance company?” 
 “Question 2:  If an attorney is not ethically permitted to allow a title insurer to audit the special trust account without the clients’ informed consent because the special trust account involves unrelated transactions, but new section 626.8473(8), Florida Statutes, requires that attorney to allow the audit, does the attorney abide by the ethics rules or the statute?”    
 The Committee’s responses to these questions are summarized in the opinion's final paragraph:  “[T]he inquirer may not permit multiple title insurance companies to audit a single trust account used exclusively for real estate and title transactions, unless the lawyer reasonably concludes that permitting the audits would serve the affected clients’ interests and the affected clients have not prohibited disclosure of the information.  The inquirer may permit a title insurer to audit a single trust account used exclusively for client transactions insured by the title insurer requesting the audit.  The answer to the inquirer’s second question offers three alternatives that may harmonize the inquirer’s obligations under the applicable Rules Regulating The Florida Bar and the statute if the lawyer concludes that permitting the audits is not necessary to serve the affected clients’ interests or if affected clients’ have prohibited the lawyer from disclosing the information.” 


Professional Ethics Committee will consider proposed advisory opinion regarding lawyer’s duty to preserve evidence on social media pages.  [Added 1/31/14]    
 At its meeting in January 2014 the Professional Ethics Committee considered an inquiry from a lawyer who asked about the ethical obligations involved in advising clients to “clean up” their social media pages before litigation is filed to remove embarrassing information that the lawyer believes is not material to the potential litigation.  The Committee voted to direct the staff to draft a proposed advisory opinion concluding that, once a lawyer is aware of the possibility of litigation, the lawyer has a duty under Rule 4-3.4 to preserve evidence and not counsel clients to destroy evidence in social media.   
 The 4 questions to be addressed in the draft advisory opinion are:  "1) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are related directly to the incident for which the lawyer is retained; 2) Pre-litigation, may a lawyer advise a client to remove posts, photos, videos, and information from social media pages/accounts that are not related directly to the incident for which the lawyer is retained; 3) Pre-litigation, may a lawyer advise a client to change social media pages/accounts privacy settings to remove the pages/accounts from public view; and 4) Pre-litigation, must a lawyer advise a client not to remove posts, photos, videos and information whether or not directly related to the litigation if the lawyer has advised the client to set privacy settings to not allow public access?"    
 The draft proposed advisory opinion will be considered at the Committee’s next meeting, which will be held in March or April of 2014.  Watch sunEthics.com for updates. 

Florida Bar adopts “Guidelines” that severely restrict lawyers’ ability to advertise their past results.  [Added 12/23/13]  -- 
 In December 2013 the Florida Bar Board of Governors approved “Guidelines for Advertising Past Results.”  In May 2013 the Florida Supreme Court rules allowing lawyers to advertise their past results.  See Rules of Professional Conduct 4-7.13(b)(2) and 4-7.14 (adopted in In re: Amendments to the Rules Regulating The Florida Bar – Subchapter 4-7, Lawyer Advertising Rules, 108 So.3d 609 (Fla. 2013).  But with the adoption of these new Guidelines for Advertising Past Results, the Bar has effectively banned the use of past results in “indoor and outdoor display and radio and television media.” 
 For billboard, radio, and TV advertising, the Guidelines state that “the Bar generally will not approve advertisements in such media that include references to past results.”    
Website advertising may continue to include references to past results, but the Guidelines now mandate how those results may be used. If an ad indicates that a client received a specific dollar amount, the ad may list only the “net amount” received by the client. Interestingly, the “net” amount is defined as the amount after deductions for attorneys’ fees and litigation-related expenses, but “[m]edical expenses that are reimbursed to the client or paid on behalf of the client may be included in the net amount.”  The ad may have this disclaimer: “After deduction of attorneys’ fees and expenses.”    
 If the ad includes a dollar amount that is not linked to a specific client, the dollar amount may be the “gross amount” before deductions.  In that event, the ad must have this disclaimer: “Before deduction for attorneys’ fees and expenses.”    The Guidelines also specify how structured settlement amounts may be used.    
All ads that have dollar amounts listed “must include the following prominently disclaimer prominently displayed unless objectively verifiable documentation to the contrary can be produced: ‘Most cases result in a lower recovery. It should not be assumed that your case will have as beneficial a result.’”    
 The Guidelines also prohibit the advertising of “collective or aggregate results” under the rationale that they are inherently misleading under Rule 4-7.13.    The Guidelines are effective immediately.  For previously-approved ads that will no longer comply in light of the new Guidelines, the Bar plans to contact advertisers and give them approximately 30 days to discontinue using the ads.  See Rule 4-7.19(f)(4). 

Gifts to lawyers that violate Rule of Professional Conduct 4-1.8(c) are void per new Probate Code provision.  [Added 11/27/13]  --  
 Effective October 1, 2013, a new provision in the Florida Probate Codes effectively voids written instruments purporting to make gifts to lawyers that violate Rule 4-1.8(c) of the Florida Rules of Professional Conduct.   
 Subsection (a) of F.S. 732.806 provides:  “Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift.”  (Rule 4-1.8(c) provides:  “A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. . . .”)    
 Subsection (b) provides:  “This section is not applicable to a provision in a written instrument appointing a lawyer, or a person related to the lawyer, as a fiduciary.”  (The Comment to Rule 4-1.8 provides that Rule 4-1.8(c) “does not prohibit a lawyer from seeking to have the lawyer or a partner or associate of the lawyer named as personal representative of the client's estate or to another potentially lucrative fiduciary position.”)    The statute goes on to define terms like “related,” “written instrument,” and “gift.” 

Supreme Court amends offer of judgment rule to clarify that partial proposals for settlement are not authorized.  [Added 11/27/13]  --  In re: Amendments to the Florida Rules of Civil Procedure, __ So.3d __, 38 Fla.L.Weekly S836 (Fla., No. SC13-74, 11/14/2013), 2013 WL 6164572.   

Board of Governors approves ethics opinion regarding lawyers’ use of “cloud computing.”  [Added 8/7/13]  --
 In July 2013 the Florida Bar Board of Governors approved Florida Ethics Opinion 12-3.  The opinion concludes that it is ethically permissible for lawyers to use “cloud computing” if they take reasonable precautions to protect confidential information.  The final paragraph of Opinion 12-3 summarizes: “[L]awyers may use cloud computing if they take reasonable precautions to ensure that confidentiality of client information is maintained, that the service provider maintains adequate security, and that the lawyer has adequate access to the information stored remotely.  The lawyer should research the service provider to be used.” 

Court was not required to admit evidence of any rule of professional conduct claimed to have been violated by legal malpractice defendant.  [Added 7/16/13]  --  Greenwald v. Eisinger, Brown, Lewis & Frankel, P.A., 118 So.3d 867 (Fla. 3d DCA 7/10/2013).  

Supreme Court adopts rules regulating use of electronic devices by jurors and others in court.  [Added 7/8/13]  --  In re: Amendments to the Florida Rules of Judicial Administration – Rule 2.451 (Use of Electronic Devices), 118 So.3d 193 (Fla. 7/3/2013). 

Supreme Court adopts “Code for Resolving Professionalism Complaints” effective immediately.  [Added 6/7/13]  --  In re: Code for Resolving Professionalism Complaints, 116 So.3d 280 (Fla. 6/6/2013). 

Supreme Court adds new Rule of Juvenile Procedure governing withdrawal in dependency and termination of parental rights cases.  [Added 5/31/13]  --  In re: Amendments to the Florida Rules of Juvenile Procedure, 115 So.3d 286 (Fla. 5/23/2013). 

Supreme Court amends criminal and appellate procedure rules relating to postconviction proceedings.  [Added 4/21/13]  --  In re: Amendments to the Florida Rules of Criminal Procedure and the Florida Rules of Appellate Procedure, __ So.3d __, 38 Fla.L.Weekly S884, (Fla., No. SC11-1679, 12/5/2013), 2013 WL 6331351. 

Supreme Court amends the proposal for settlement rule (1.442).  [Added 4/17/13]    
 The Florida Supreme Court amended Fla.R.Civ.P. 1.442, concerning proposals for settlement.  The Court stated that the "amendment clarifies that a notice of acceptance of a proposal for settlement must be served within thirty days of service of the proposal, and new rule 2.514(b), which allows an additional five days to act after service by mail or e-mail, does not apply."  The amendment is effective upon release of the Court's opinion, although the Court gave interested persons 60 days in which to file comments about it.  In re: Amendments to Florida Rule of Civil Procedure 1.442, 112 So.3d 1209 (Fla. 4/11/2013). 

Florida Supreme Court approves major revisions to the Florida Bar lawyer advertising rules, including website regulations.  [Added 1/31/13]  --     
 The Florida Supreme Court approved extensive revisions to the lawyer advertising rules that had been proposed by the Florida Bar.  Among other things, the proposed rules subject lawyer and law firm websites to regulations that govern other forms of lawyer advertising.  Click here to view the Court's opinion.  The rule changes are effective May 1, 2013.  In re: Amendments to the Rules Regulating The Florida Bar - Subchapter 4-7, Lawyer Advertising Rules, 108 So.3d 609 (Fla. 1/31/2013).    The Court adopted the rules as proposed by the Bar, with two exceptions.  First, instead of changing the text under the existing rule numbers, the Court deleted the old rules and their numbers and gave new numbers to the rules as  revised.  The Court was concerned that without this modification "use of the same rule numbers could create confusion in case law for many years" in view of the fact that the new rules "are substantially different from the current rules."    Second, the Court adopted slightly different language than proposed by the Bar in Rule 4-7.13(b)(10), which deals with the use of "a judicial, executive, or legislative branch title by a current, former, or retired judicial, executive, or legislative branch official who is currently engaged in the practice of law."  The Court explained:  "We have determined that the use of such a title is not inherently misleading if it is accompanied by clear modifiers and the title is placed subsequent to the person’s name.  For example, a former judge may not state 'Judge Doe (retired)' or 'Judge Doe, former circuit judge.'  However, she may state 'Jane Doe, Florida Bar member, former circuit judge' or 'Jane Doe, retired circuit judge.'"    A sunEthics.com summary of significant changes appears below.   The new rules (as re-numbered by the Court) and their titles are:  Rule 4-7.11 (Application of Rules); 4-7.12 (Required Content); 4-7.13 (Deceptive and Inherently Misleading Advertisements); 4-7.14 (Potentially Misleading Advertisements); 4-7.15 (Unduly Manipulative or Intrusive Advertisements); 4-7.16 (Presumptively Valid Content); 4-7.17 (Payment for Advertising and Promotion); 4-7.18 (Direct Contact with Prospective Clients); 4-7.19 (Evaluation of Advertisements); 4-7.20 (Exemptions From the Filing and Review Requirement); 4-7.21 (Firm Names and Letterhead); 4-7.22 (Lawyer Referral Services); and 4-7.23 (Lawyer Directory).Rule 4-7.11 (Application of Rules).  The advertising rules apply to "all forms of communication in any print or electronic forum."  This includes "websites, social networking, and video sharing media."  Regarding websites of multistate law firms, the Comment explains that the Florida advertising rules do not apply "to portions of a multistate firm’s website that relate to the provision of legal services in jurisdictions other than Florida."     The advertising rules apply to all lawyers, whether admitted in Florida or not, "who advertise that the lawyer provides legal services in Florida or who target advertisements for legal employment at Florida residents."  Regarding ads in "national media" (e.g., cable television), the rules do not apply "if the disclaimer 'cases not accepted in Florida' is plainly noted in the advertisement." Rule 4-7.12 (Required Content).  All ads must contain the name of  the lawyer, law firm, lawyer referral service, or lawyer directory responsible for the ad, as well as the "city, town, or county of 1 or more bona fide office locations of the lawyer who will perform the services advertised."  If the cases being advertised for will be referred to another lawyer or firm, the ad must so state.  Any required information must appear in each language used in the ad.  (These requirements are in the current rules.)Rule 4-7.13 (Deceptive and Inherently Misleading Advertisements).  This Rule defines deceptive or inherently misleading ads, and provides a non-exclusive list of deceptive or inherently misleading statements.  The list is significant primarily because of what the rule permits.    References to past results are permitted if "objectively verifiable."  (The Comment points out that the affected client must give informed consent, even where "some or all of the information a lawyer may wish to advertise is in the public record.")    Comparisons or characterizations of the advertiser's "skills, experience, reputation or record" are permitted if "objectively verifiable."    The rule that required all non-lawyer spokespersons to be identified as such in ads has been replaced by a rule requiring a "prominently displayed" notice ("Not an employee or member of law firm") where the person's voice or image "creates the erroneous impression that the person speaking or shown is the advertising lawyer or a lawyer or employee" of the advertiser.    Ads containing "dramatizations" of actual or fictitious events must contain a "prominently displayed" disclaimer, and a disclaimer must be "prominently displayed" when an actor "acting as a spokesperson" for the advertiser portrays someone "purporting to be engaged in a particular profession or occupation."    The rule generally allows the use of testimonials.  Certain testimonials, however, are not permitted:  "(A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results."  The Comment defines "testimonial" as "a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation."    Finally, ads may not contain an advertising lawyer's "judicial, executive or legislative branch title, unless accompanied by clear modifiers and placed subsequent to the person's name, in reference to a current, former or retired judicial, executive, or legislative branch official currently engaged in the practice of law."  (The Comment clarifies that "an accurate representation of one’s judicial, executive, or legislative experience is permitted in reference to background and experience in bios, curriculum vitae and resumes, if accompanied by clear modifiers and placed subsequent to the person's name."). Rule 4-7.14 (Potentially Misleading Advertisements).  For the first time, the advertising rules explicitly regulate "potentially misleading" ads.  The non-exclusive list of potentially misleading ads in this Rule includes:    -- Ads subject to "varying reasonable interpretations, 1 or more of which would be materially misleading when considered in the relevant context;"    -- Ads "that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;" and    -- Ads with references to "membership in or recognition by an entity that purports to base such membership or organization on a lawyer’s ability or skill, unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria" and draws from "a reasonable cross-section of the legal community the entity purports to cover."     Significantly, the Rule provides that an ad may be rendered permissible through the inclusion of "information or statements that adequately clarify the potentially misleading issue." Rule 4-7.15 (Unduly Manipulative or Intrusive Advertisements).  This Rule prohibits ads that are "unduly manipulative or intrusive."  An ad is "unduly manipulative" if it:  (a) has features designed to "solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client;" (b) uses an "authority figure such as a judge or law enforcement officer, or an actor portraying an authority figure, to endorse or recommend the lawyer or act as spokesperson for the lawyer;" (c) uses the voice of image of a "celebrity" (except a local announcer who regularly records ads and does not endorse the advertiser); or (d) "offers consumers an economic incentive to employ the lawyer or review the lawyer’s advertising" (except for discounted fees).    Neither the proposed Rule nor its Comment attempt to define what would be considered "intrusive" or "unduly intrusive."  Similarly, "authority figure" is not defined.   Rule 4-7.16 (Presumptively Valid Content).  This Rule lists certain information that is "presumed not to violate" the advertising rules.  The items listed are almost identical that those in the current rules.  One notable addition allows the inclusion of membership in and positions held in any state bar (the current rule is limited to Florida Bar membership and positions held).Rule 4-7.17 (Payment for Advertising and Promotion).  This Rule continues the prohibitions against (a) a lawyer paying the costs of ads by a lawyer not in the same firm (the Comment notes that firms may advertise jointly if all required information is included) and (b) a lawyer giving anything of value in exchange for a recommendation of the lawyer's services.  A new prohibition is added as subdivision (c):  "A lawyer may not permit a nonlawyer to pay all or a part of the cost of an advertisement by that lawyer."Rule 4-7.18 (Direct Contact with Prospective Clients).  This Rule continues to prohibit most in-person solicitation.      The rules governing direct mail (including email) communication with prospective clients is extended to all written communications seeking professional employment (not just "unsolicited" ones as provided for in the current rule).  Most of the specific requirements for direct mail communications remain the same.  The most significant change is that the word "Advertisement" must appear on each page of the communication (instead of only the first page).  Rule 4-7.19 (Evaluation of Advertisements).  This Rule requires that all ads (except websites) be filed with the Bar 20 days in advance of their first use. (The current rule requires pre-filing of only television and radio ads.)  The new Rule expressly prohibits the filing of "an entire website" for review.  A lawyer, however, "may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website," even though these are not required to be filed.    The current rule mandates that the Bar's finding that an ad is in compliance is binding on the Bar in a grievance proceeding (absent a misrepresentation not apparent from the face of the ad).  Significantly, the new Rule allows the Bar to retract a finding of compliance at its pleasure, even when the underlying rules have not changed.  Continued dissemination of the no-longer-approved ad would subject the advertiser to discipline.    The Rule creates a limited safe harbor "take-down" period for websites.  A lawyer is subject to discipline for a non-complying website "only after 15 days have elapsed since the date" that the Bar sent a notice of noncompliance to the lawyer's official Bar address.    The ad review fees remain at $150 per timely-filed ad and $250 per late-filed ad.Rule 4-7.20 (Exemptions From the Filing and Review Requirement).  The exemptions from the filing-and-review requirement remain substantially unchanged.  A "written or recorded communication requested by a prospective client" is exempt.  Although this communication itself is exempt from filing, the content of any such requested communication is subject to the advertising rules. (This is a change from the current rule, which provides that the ad rules do not apply to requested information.)    Additionally, the new Rule provides that websites are not required to be filed for review.Rule 4-7.21 (Firm Names and Letterhead).  This Rule leaves the standards governing firm names and letterhead unchanged.  The Comment adds that a sole practitioner's use of "and Associates," "Group," or "Team" is impermissible because it "implies that more than one lawyer is employed in the advertised firm and is therefore misleading."Rule 4-7.22 (Lawyer Referral Services).  This Rule imposes a new requirement on the operation and advertising of lawyer referral services by mandating that all lawyer referral service ads affirmatively state "that lawyers who accept referrals from it pay to participate in the lawyer referral service."  (This is in addition to the affirmative "lawyer referral service" disclosure that is required.)Rule 4-7.23 (Lawyer Directory).  This new Rule recognizes, for the first time, a "lawyer directory."  This is defined as:  "[A]ny person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers."  Traditional telephone directories, and voluntary bar associations that list members on a website or in a publication, do not come within the definition.    Many of the regulations that apply to lawyer referral service ads also apply to "lawyer directories;" notable exceptions are:  there is no requirement for lawyers listed in a "lawyer directory" to be covered by malpractice insurance; and there is no requirement that the "lawyer directory" provide the Florida Bar with a list of participating lawyers.  In re: Amendments to the Rules Regulating The Florida Bar - Subchapter 4-7, Lawyer Advertising Rules, 108 So.3d 609 (Fla. 1/31/2013). 

Board of Governors concludes that criminal plea offers conditioned on waivers of ineffective assistance of counsel and prosecutorial misconduct are unethical.  [Added 12/14/12]    
 At its meeting at Amelia Island on December 7, 2012, the Florida Bar Board of Governors approved Florida Ethics Opinion 12-1.  The opinion concludes that a criminal defense lawyer has an unwaivable conflict of interest that precludes the lawyer from advising a client whether to accept a plea offer requiring the client to waive any past or future ineffective assistance of counsel by the defense lawyer or to waive any claims of prosecutorial misconduct.  Opinion 12-1 also concludes that it is unethical for a prosecutor to make such an offer. 

Board of Governors advises that lawyers may permit trusted, properly supervised nonlawyers to file documents via E-Portal using the lawyer's access credentials.  [Added 12/14/12]    
 At its meeting at Amelia Island on December 7, 2012, the Florida Bar Board of Governors approved Florida Ethics Opinion 12-2.  The opinion concludes that it is ethically permissible for a lawyer to provide his or her access credentials to the E-Portal to trusted, properly supervised nonlawyer employees so that the employees may electronically file court documents on the lawyer's behalf.  The lawyer is ultimately responsible for the filing.  Opinion 12-2 also advises that the lawyer should immediately change the lawyer’s password if the nonlawyer leaves the lawyer’s employ or shows untrustworthiness in the use of the E-Portal. 

Florida Supreme Court amends family law form to implement disclosure requirements for non-lawyers who help parties complete forms.  [Added 11/20/12]  --  In re: Amendments to the Family Law Rules of Procedure, 104 So.3d 314 (Fla. 2012). 

Florida Supreme Court amends Family Law Rules of Procedure, specifying that “proposals for settlement” are not used in family law matters.  [Added 10/5/12]  --  In re: Amendments to the Florida Family Law Rules of Procedure, 101 So.3d 360 (Fla. 2012). 

Professional Ethics Committee tackles plea waivers conditioned on waiving ineffective assistance claims, non-lawyers' use of court filing E-portal, and other issues.  [Added 9/30/12]    
 The Bar’s Professional Ethics Committee met on September 21, 2012, during the Bar's Midyear Meeting in Orlando.  Among the actions taken by the Committee’s agenda are the following:    Criminal plea offers conditioned on waivers of ineffective assistance of counsel and prosecutorial misconduct.  The Committee previously published Proposed Advisory Opinion ("PAO) 12-1, which concluded that a criminal defense lawyer has a conflict of interest that prevents the lawyer from advising a client whether to accept a plea offer requiring the client to waive any past or future ineffective assistance of counsel by the lawyer, and that it is impermissible for a prosecutor to make such an offer.  After considering comments received from Bar members, the Committee voted to affirm PAO 12-1.  If none of those commenters requests Board of Governors review by October 24, 2012, PAO 12-1 will become final.    Non-lawyers using a lawyer's E-portal access credentials to file documents.  At the request of the Board of Governors, the Committee addressed the question of whether, and under what circumstances, a lawyer may permit a supervised non-lawyer to use the lawyer’s access credentials (i.e., log-in name and password) in order to electronically file documents with a court using the E-Portal.  The Committee voted to approve Proposed Advisory Opinion ("PAO") 12-2, which concludes that a properly supervised and directed non-lawyer may use the lawyer's credentials to file documents via the E-Portal.  Of course, the lawyer remains responsible for the non-lawyer’s conduct and, accordingly, a prudent lawyer will monitor the non-lawyer’s activity and immediately change the password if the non-lawyer leaves the lawyer’s employ or demonstrates unreliability in using the E-Portal.  PAO 12-2 will be published in the Florida Bar News along with a notice inviting comment from interested bar members.  See Rule 4, Florida Bar Procedures for Ruling on Questions of Ethics.    Lawyers' use of cloud computing.  The Committee previously asked the Board of Governors for authorization to prepare a proposed advisory opinion addressing the use of cloud computing by lawyers.  The Board granted that authorization.  Due to time constraints, the Committee tabled further consideration of the issue until its next meeting.    Lawyer working for a non-profit organization run by non-lawyers that provides immigration services.  Due to time constraints, the Committee tabled further consideration of an appeal of a staff opinion issued to a lawyer who asked about the ethical propriety of practicing law as an employee of a non-profit organization run by non-lawyers, where the organization provides immigration services to clients.  The staff opinion concluded that the practice was ethically impermissible.    Application of Florida Statutes section 626.8473 (real estate settlement funds and separate trust accounts for title insurer audit purposes).  At its June meeting, the Committee discussed issues presented by subsection (8) of the new statute and directed staff to prepare a draft proposed advisory opinion for discussion purposes.  After hearing from speakers favoring and opposing the draft, the Committee tabled further consideration of the matter until its next meeting. 

Florida Supreme Court hears oral argument on proposed amendments to rules governing lawyer advertising, including websites.  [Added 9/9/12]    On Friday September 7, 2012, the Florida Supreme Court heard oral argument on an extensive set of amendments to the lawyer advertising rules that had been proposed by the Florida Bar.  Among other things, the proposed rules would subject lawyer and law firm websites to regulations that govern other forms of lawyer advertising.    To view a video recording of the oral argument from the Supreme Court’s website, click here.  To read the text of the proposed rules along with comments filed supporting and opposing the rules, go to the sunEthics.com "Proposed Changes to Florida Bar Rules" page) or to the Supreme Court’s “Rules Cases” page.  The case number is SC11-1327.    A sunEthics.com summary of significant proposed changes appears below.    The new rules and their titles are:  Rule 4-7.1 (Application of Rules); 4-7.2 (Required Content); 4-7.3 (Deceptive and Inherently Misleading Advertisements); 4-7.4 (Potentially Misleading Advertisements); 4-7.5 (Unduly Manipulative or Intrusive Advertisements); 4-7.6 (Presumptively Valid Content); 4-7.7 (Payment for Advertising and Promotion); 4-7.8 (Direct Contact with Prospective Clients); 4-7.9 (Evaluation of Advertisements); 4-7.10 (Exemptions From the Filing and Review Requirement); 4-7.11 (Firm Names and Letterhead); 4-7.12 (Lawyer Referral Services); and 4-7.13 (Lawyer Directory).Proposed Rule 4-7.1 (Application of Rules).  The proposed rules apply to "all forms of communication in any print or electronic forum."  This includes "websites, social networking, and video sharing media."  Regarding websites of multistate law firms, the proposed Comment explains that the Florida advertising rules do not apply "to portions of a multistate firm’s website that relate to the provision of legal services in jurisdictions other than Florida."     The proposed rules apply to all lawyers, whether admitted in Florida or not, "who advertise that the lawyer provides legal services in Florida or who target advertisements for legal employment at Florida residents."  Regarding ads in "national media" (e.g., cable television), the proposed rules do not apply "if the disclaimer 'cases not accepted in Florida' is plainly noted in the advertisement." Proposed Rule 4-7.2 (Required Content).  All ads must contain the name of  the lawyer, law firm, lawyer referral service, or lawyer directory responsible for the ad.  If the cases being advertised for will be referred to another lawyer or firm, the ad must so state.  Any required information must appear in each language used in the ad.  (These requirements are in the current rules.)Proposed Rule 4-7.3 (Deceptive and Inherently Misleading Advertisements).  The proposed Rule defines deceptive or inherently misleading ads, and provides a non-exclusive list of deceptive or inherently misleading statements.  The list is significant primarily because of what the proposed rule would permit.    References to past results are permitted if "objectively verifiable."  (The proposed Comment points out that the affected client must give informed consent, even where "some or all of the information a lawyer may wish to advertise is in the public record.")    Comparisons or characterizations of the advertiser's "skills, experience, reputation or record" are permitted if "objectively verifiable."    The current rule requiring all non-lawyer spokespersons to be identified as such in ads is replaced by a rule requiring a "prominently displayed" notice ("Not an employee or member of law firm") where the person's voice or image "creates the erroneous impression that the person speaking or shown is the advertising lawyer or a lawyer or employee" of the advertiser.  Ads containing "dramatizations" of actual or fictitious events must contain a "prominently displayed" disclaimer, and a disclaimer must be "prominently displayed" when an actor "acting as a spokesperson" for the advertiser portrays someone "purporting to be engaged in a particular profession or occupation" (e.g., doctor, lawyer, police officer).    For the first time in many years, the proposed rule generally allows the use of testimonials but does not permit testimonials:  "(A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results."  The proposed Comment defines "testimonial" as "a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation."    Finally, ads may not contain an advertising lawyer's "judicial, executive or legislative branch title with or without modifiers."  (The proposed Comment clarifies that "an accurate representation of one’s judicial, executive, or legislative experience is permitted in reference to background and experience in bios, curriculum vitae and resumes."). Proposed Rule 4-7.4 (Potentially Misleading Advertisements).  The proposed rules, for the first time, explicitly regulate "potentially misleading" ads.  The proposed Rule provides a non-exclusive list of potentially misleading ads that includes:    -- Ads subject to "varying reasonable interpretations, 1 or more of which would be materially misleading when 474 considered in the relevant context;"    -- Ads "that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;" and    -- Ads with references to "membership in or recognition by an entity that purports to base such membership or organization on a lawyer’s ability or skill unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria" and draws from "a reasonable cross-section of the legal community the entity purports to cover."     The proposed Rule also provides that an ad may be rendered permissible through the inclusion of "information or statements that adequately clarify the potentially misleading issue." Proposed Rule 4-7.5 (Unduly Manipulative or Intrusive Advertisements).  The proposed Rule prohibits ads that are "unduly manipulative or intrusive."  An ad is "unduly manipulative" if it:  (a) has features designed to "solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client;" (b) uses the voice of image of a "celebrity" (except a local announcer who regularly records ads and does not endorse the advertiser); or (c) "offers consumers an economic incentive to employ the lawyer or review the lawyer’s advertising" (except for discounted fees).    A late-filed proposed amendment would prohibit lawyer advertisements from using actors portraying "authority figures," such as police officers and judges, who are acting as spokespersons for the advertiser.  The term "authority figure" is not defined in the proposed rules or comments.    Neither the proposed Rule nor its Comment attempt to define what would be considered "intrusive" or "unduly intrusive."Proposed Rule 4-7.6 (Presumptively Valid Content).  The proposed Rules lists certain information that is "presumed not to violate" the advertising rules.  The items listed are almost identical that those contained in the current rules.  One notable addition allows the inclusion of membership in and positions held in any state bar (the current rule is limited to Florida Bar membership and positions held).Proposed Rule 4-7.7 (Payment for Advertising and Promotion).  The proposed Rule continues the prohibitions against (a) a lawyer paying the costs of ads by a lawyer not in the same firm (the Comment notes that firms may advertise jointly if all required information is included) and (b) a lawyer giving anything of value in exchange for a recommendation of the lawyer's services.  A new prohibition is added as subdivision (c):  "A lawyer may not permit a nonlawyer to pay all or a part of the cost of an advertisement by that lawyer."Proposed Rule 4-7.8 (Direct Contact with Prospective Clients).  The proposed Rule continues to prohibit most in-person solicitation.      The rules governing direct mail (including email) communication with prospective clients would be extended to all written communications seeking professional employment (not just "unsolicited" ones as provided for in the current rule).  Most of the specific requirements for direct mail communications remain unchanged.  The most significant change is that the word "Advertisement" must appear on each page of the communication (instead of only the first page).  Proposed Rule 4-7.9 (Evaluation of Advertisements).  The proposed Rule requires that all ads (except websites) be filed with the Bar 20 days in advance of their first use. (The current rule requires pre-filing of only television and radio ads.)  The proposed Rule prohibits the filing of "an entire website" for review.  A lawyer, however, "may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website," even though these are not required to be filed.    The current rule mandates that the Bar's finding that an ad is in compliance is binding on the Bar in a grievance proceeding (absent a misrepresentation not apparent from the face of the ad).  Significantly, the proposed Rule would allow the Bar to retract a finding of compliance at its pleasure, even when the underlying rules have not changed.  Continued dissemination of the no-longer-approved ad would subject the advertiser to discipline.    The proposed rule creates a limited safe harbor "take-down" period for websites.  A lawyer is subject to discipline for a non-complying website "only after 15 days have elapsed since the date" that the Bar sent a notice of noncompliance to the lawyer's official Bar address.    The ad review fees remain at $150 per timely-filed ad and $250 per late-filed ad.Proposed Rule 4-7.10 (Exemptions From the Filing and Review Requirement).  The exemptions from the filing-and-review requirement remain substantially unchanged under the proposed Rule.  It specifies that "a written or recorded communication requested by a prospective client" is exempt.  Although the communication itself is exempt from filing, the content of any such requested communication is subject to the advertising rules. (This is a change from the current rule, which provides that the ad rules do not apply to requested information.)    Additionally, the proposed rule provides that websites are not required to be filed for review.Proposed Rule 4-7.11 (Firm Names and Letterhead).  The proposed Rule leaves the standards governing firm names and letterhead unchanged.  The proposed Comment adds that a sole practitioner's use of "and Associates," "Group," or "Team" is impermissible because it "implies that more than one lawyer is employed in the advertised firm and is therefore misleading."Proposed Rule 4-7.12 (Lawyer Referral Services).  The proposed imposes a new requirement on the operation and advertising of lawyer referral services by mandating that all lawyer referral service ads affirmatively state "that lawyers who accept referrals from it pay to participate in the lawyer referral service."  (This is in addition to the affirmative "lawyer referral service" disclosure that currently is required.)Proposed Rule 4-7.13 (Lawyer Directory).  The proposed Rule recognizes, for the first time, a "lawyer directory."  This is defined as:  "[A]ny person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers."  Traditional telephone directories, and voluntary bar associations that list members on a website or in a publication, do not come within the definition.    Many of the regulations that apply to lawyer referral service ads also apply to "lawyer directories;" notable exceptions are:  there is no requirement for lawyers listed in a "lawyer directory" to be covered by malpractice insurance; and there is no requirement that the "lawyer directory" provide the Florida Bar with a list of participating lawyers.  

Florida Supreme Court amends court rules to implement mandatory e-filing and e-mail service in Florida courts.  [Added 6/27/12]    In two companion opinions the Florida Supreme Court amended and adopted various court rules to implement mandatory electronic filing of documents (e-filing) and electronic service (e-service) in proceedings in Florida trial and appellate courts.  Highlights of these opinions are set forth below.In re: Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure – Electronic Filing, 102 So.3d 451 (Fla. 2012).      The Supreme Court amended and adopted various court rules in what it called “a significant and important step toward our goal of a fully electronic court system by transitioning from permissive to mandatory electronic filing (e-filing).”  Key rules amended were Fla.R.Jud.Admin. 2.520 (Documents) and 5.525 (Electronic Filings).  “Rule 2.520 provides in general terms that all documents filed in any court shall be filed by electronic transmission in accordance with rule 2.525. In turn, rule 2.525 provides the specific procedures for electronic filing.”    In consideration of the “unique challenges facing each division or court,” a staggered schedule for implementation was adopted by the Court.  In the civil, probate, small claims, and family law divisions of the trial courts, as well as for appeals to the circuit courts in these categories of cases, mandatory e-filing becomes effective on April 1, 2013.  In the criminal, traffic, and juvenile divisions of the trial courts, as well as for appeals to the circuit court in these categories of cases, mandatory e-filing becomes effective on October 1, 2013 (except as may be otherwise provided by administrative order).  Finally, in the Supreme Court and in the district courts of appeal, mandatory e-filing becomes effective on October 1, 2012 (although clerks will not be required to electronically transmit the record on appeal until January 1, 2013).    The Court noted that “in all types of cases, pursuant to amended rule 2.525(d) self-represented parties and self-represented nonparties, including nonparty governmental or public agencies, and attorneys excused from e-mail service under [Fla.R.Jud.Admin.] 2.516 will be permitted, but not required, to file documents electronically.”In re: Amendments to the Florida Rules of Judicial Administration, the Florida Rules of Civil Procedure, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Rules of Traffic Courts, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure – E-mail Service Rule, 102 So.3d 505 (Fla. 2012).              “The central rule adopted in this case is new [Fla.R.Jud.Admin.] 2.516 (Service of Pleadings and Papers).  This rule was modeled after current [Fla.R.Civ.P.] 1.080 (Service of Pleadings and Papers) and includes many of the same provisions and requirements for service.  However, new rule 2.516 provides that all documents required or permitted to be served on another party must be served by e-mail.”  Upon appearing in a proceeding, a lawyer must designate a primary e-mail address for receiving service.  Thereafter, service on the lawyer must be made by e-mail.  There are limited exceptions to this requirement (e.g., a lawyer with no email or internet access may file a motion to be excused from the rule, pro se litigants are not required to use e-mail service).  E-mail service is deemed complete when the e-mail is sent.  Size limits on attachments and required language in the subject line of the e-mail are spelled out.    The rule changes have an effective date of September 1, 2012, but the Court declared that they would be “implemented as set forth in this opinion.”  For lawyers practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, e-mail service is mandatory effective September 1, 2012.  For lawyers practicing in the criminal, traffic, and juvenile divisions of the trial court, e-mail service is mandatory effective October 1, 2013.    The Court noted that “self-represented parties involved in any type of case in any Florida court, may, but are not required to, serve documents by e-mail” and that “[a]ttorneys excused from e-mail service are also not obligated to comply with the new e-mail service requirements.” 

Ethics Committee to consider issues including plea waivers conditioned on waivers of ineffective assistance claims, charging clients for costs, and cloud computing.  [Added 6/20/12]    The Bar’s Professional Ethics Committee will meet on June 22, 2012, during the Bar's Annual Meeting in Orlando.  Among the items on the Committee’s agenda are the following:    Criminal plea offers conditioned on waivers of ineffective assistance of counsel and prosecutorial misconduct.  The Committee considered whether:  (1) a criminal defense lawyer has a conflict of interest that prevents the lawyer from advising a client whether to accept a plea offer requiring the client to waive any past or future ineffective assistance claims; and (2) whether it is impermissible for a prosecutor to make such a plea offer.  The Committee discussed this matter at its September 2011 and February 2012 meetings.  At the September 2011 meeting the Committee directed Bar staff to prepare a draft advisory opinion concluding that a criminal defense lawyer has a conflict of interest that prevents the lawyer from advising a client whether to accept a plea offer that requires the client to waive any past or future ineffective assistance of counsel by the lawyer, and that it is ethically impermissible for a prosecutor to make such an offer.  At its June 2012 the Committee is expected to hear from speakers representing various prosecution and defense organizations.    Lawyer working for a non-profit organization run by non-lawyers that provides immigration services.  The Committee will resume consideration of an appeal of a staff opinion issued to a lawyer who asked about the ethical propriety of practicing law as an employee of a non-profit organization run by non-lawyers, where the organization provides immigration services to clients.  The staff opinion concluded that the practice was ethically impermissible.  At its February 2012 the Committee tabled consideration of the matter until its June 2012 meeting, in order to allow Bar staff an opportunity to conduct more research on the issue.    Charging  a percentage of billings as an “administrative charge” to cover costs.  The Committee will consider an appeal of a staff opinion issued to a lawyer who asked about the ethical propriety of charging clients 4% of the amount of fees billed to clients each month as an “administrative charge” to cover expenses such as copying, telephone, fax, postage, and courier services.  Bar staff concluded that this practice is ethically impermissible because it does not relate to the expenses actually expended.    Use of “cloud computing” in law practice.  The Committee will consider whether to seek authorization from the Board of Governors to adopt an advisory opinion regarding the use of “cloud computing” by Florida lawyers in their law practices. 

Florida Supreme Court’s Commission on Professionalism looks into adopting formal procedures to enforce professionalism standards.  [Added 5/9/12]    
 The Florida Supreme Court’s Commission on Professionalism is considering seeking adoption of formal procedures designed to enforce standards of professionalism among Florida lawyers.  The Commission will hold a public hearing at the Bar’s Annual Meeting on Thursday June 21, 2012, from 10:00 to noon at the Gaylord Palms Hotel in Orlando.    The Commission has published for comment a “Proposed Model for Resolving Professionalism Complaints” in the May 15 issue of the Florida Bar News.  Click here to see the Proposed Model.  A companion article in the Florida Bar News discusses the Commission’s concerns and goals.    Among other things, the “Proposed Model for Resolving Professionalism Complaints” would create a formal intake system for complaints that would be operated through the Bar’s existing Attorney Consumer Assistance and Intake Program (“ACAP”).  Complaints about lawyers’ professionalism could be resolved through involvement of ACAP staff attorneys or referral to a local professionalism panel in the offending lawyer’s area. 

Florida Supreme Court amends some rules as proposed by Bar, but rejects others including lien resolution services and trust account signatory rules.  [Added 4/12/12]    On October 15, 2010, the Florida Bar filed a regular-cycle rule change package with the Florida Supreme Court.  The Bar bifurcated its filing into 2 petitions, the first containing the more substantive changes and the second containing the "housekeeping" changes.  (The Court ruled on the "housekeeping" changes in July 2011.  In re: Amendments to the Rules Regulating The Florida Bar (Biannual Report Housekeeping), 67 So.3d 1037 (Fla. 2011).)    The Bar's proposed substantive changes addressed a variety of topics.  On April 12, 2012, the Court issued its opinion regarding the Bar's proposals.  The Court approved a number of the proposals, either as proposed or with modifications, but rejected others.  Below is a summary of significant actions.  The amendments are effective July 1, 2012.    Proposed rules that were APPROVED by the Court included:    Reporting misconduct of other lawyers and judges (Rule 4-8.3).  This amendment to Rule 4-8.3 creates an exception to the duty to report misconduct of other lawyers and judges when a lawyer gains the information "while serving as a mediator or mediation participant if the information is privileged or confidential under applicable law."  The addition to the Comment to Rule 4-8.3 explains:  "Generally, Florida statutes provide that information gained through a ‘mediation communication’ is privileged and confidential, including information which discloses professional misconduct occurring outside the mediation. However, professional misconduct occurring during the mediation is not privileged or confidential under Florida statutes."    Minimum trust account records (Rule 5-1.2(b)).  The amendment to Rule 5-1.2(b) requires that the name or case number of the client appear in the memo area of a trust account check and specifiesthe information that must be kept regarding electronic funds transfers.    Electronic wire transfers from trust accounts (Rule 5-1.2(d)).  This addition to Rule 5-1.2 (originally number (e) but now numbered as (d) due to the Court's rejection of proposed subdivision (d)) limits electronic wire transfers from a lawyer's trust account to:  "(1) money required to be paid to a client or third party on behalf of a client; (2) expenses properly incurred on behalf of a client, such as filing fees or payment to third parties for services rendered in connection with the representation; (3) money transferred to the lawyer for fees which are earned in connection with the representation and which are not in dispute; or (4) money transferred from one trust account to another trust account."    Pro hac vice appearances in Florida state courts by non-Florida lawyers (Comment to Rule 1-3.10).  The new Comment to Rule 1-3.10 provides information regarding "what constitutes an 'appearance' under this rule and how to calculate the number of appearances in any 365-day period."   The proposed Comment provides examples of calculations using specific dates of pro hac vice admission.  The Comment further points out that the pro hac vice limits are ""not applicable to appearances in federal courts sitting in Florida, as appearances before each of those courts are regulated by the rules applicable to those courts" and that "an appearance in a federal court sitting in Florida does not constitute an ‘appearance’ as contemplated by" Rule 1-3.10.    Maximum period of probation (Rule 3-5.1(c)).  This amendment to Rule 3-5.1(c) increases the maximum length of a disciplinary probation from 3 years to 5 years.    Disciplinary revocation of license to practice (Rule 3-5.1(g)).  This new subdivision of Rule 3-5.1 provides for a "disciplinary revocation" of a lawyer's license to practice that would be "tantamount to disbarment."  The revocation would be for a minimum period of 5 years.  "Disciplinary revocation" would replace and strengthen the "disbarment by consent" currently found in Rule 3-5.1(j).    Emergency suspension from practice (Rule 3-5.2(a)).  This amendment to Rule 3-5.2(a) allows for imposition of an emergency suspension when a lawyer is suspended or disbarred in a foreign jurisdiction.    UPL and form completion by nonlawyers (Rule 10-2.2).  This new rule was proposed by the Bar and adopted by the Court "to clarify and define the unlicensed practice of law when a nonlawyer is engaged in assisting self-represented litigants to complete legal forms."  The Court modified the rule as proposed by the Bar "to eliminate language that would allow a nonlawyer to sell legal forms and kits."     
 Proposed rules that were REJECTED by the Court included:    Attorney's fees and subrogation/lien resolution (Rule 1.5).  The Bar proposed a new subdivision of Rule 1.5 that would have required a lawyer to state in the attorney-client contract "an explanation of the scope of any subrogation or lien resolution services the lawyer will undertake at the conclusion of the primary matter."  When "extraordinary subrogation or lien resolution services" would be required, with the client's "informed written consent" the lawyer would have been able to refer the client to someone outside the lawyer's law firm for these services.  The person or entity performing those "extraordinary" services could charge the client a separate fee, but if charged by a lawyer that fee must comply with applicable provisions of Rule 1.5 and the original lawyer may not share in that fee.    The Court rejected this proposed rule and its related commentary and made it clear that it disagreed with the premise underlying the proposal.  "This subdivision would provide that a lawyer in a personal injury or wrongful death case charging a contingent fee must include in the fee contract information about the scope of the lawyer’s representation relating to subrogation and lien resolution services; the rule would also provide that some medical lien and subrogation claims may be referred to another attorney for resolution with the client’s informed consent.  . . .  After considering the concerns raised in the comment and the discussion at oral argument, we decline to adopt new subdivision (f)(4)(E).  Indeed, we take this opportunity to clarify that lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case."  (Emphasis added.)    Attorney's services and fees in wrongful death matters requiring probate or guardianship filings (Comment to Rule 1.5).  Along with rejecting the proposed lien-resolution rule, the Court rejected a proposed new provision to the Comment to Rule 1.5 that would have expressly stated that a lawyer handling a wrongful death matter in which an estate must be opened or a guardianship established may charge an additional fee for providing those services.  The rejected Comment also would have identified "ancillary services such as estate planning, bankruptcy, financial planning, public benefit planning, tax planning, real estate transactions, and medicare set-asides" as not being part of the personal injury or wrongful death matter subject to the contingent fee schedule.    Temporary practice in Florida by out-of-state lawyers following a major disaster (Proposed Rule 1-3.12; Rule 4-5.5(c)).  Proposed new Rule 1-3.12 would have authorized pro bono practice in Florida by out-of-state lawyers following a major disaster in Florida (as determined by the Florida Supreme Court), and would have authorized out-of-state lawyers to temporarily practice in Florida following a major disaster in their home jurisdiction.  The proposed amendment to Rule 4-5.5(c) would have provided that temporary practice pursuant to Rule 1-3.12 does not constitute the unlicensed practice of law in Florida.    The Court rejected these proposals.  "This rule [1-3.12] would allow lawyers from other jurisdictions to practice in Florida on a limited basis following a natural disaster.  Because we have concerns about how this rule would apply, we decline to adopt it. We also do not adopt proposed amendments to rule 4-5.5 (Unlicensed Practice of Law; Multijurisdictional Practice of Law), which would provide that lawyers authorized to practice law in another United States jurisdiction may provide legal services in Florida in accordance with rule 1-3.12."     Signing trust account checks (Proposed Rule 5-1.2(d)).  The proposed new provision to Rule 5-1.2 would have required that all trust accounts be signed by a lawyer, thus effectively eliminating the practice, approved in Florida Ethics Opinion 64-40 (Reconsideration), of allowing a trusted non-lawyer employee of a lawyer to be a signatory on the lawyer's trust account.  The proposed rule also would have prohibited lawyers from signing trust account checks in blank and from signing using a signature stamp (or similar means).    The Court rejected this proposed rule and referred the matter back to the Bar for further study.  "The most controversial of [the Bar's trust account rule] proposals is new subdivision (d) (Signing Trust Account Checks), which would require that a lawyer sign every trust account check with his or her actual signature, and would prohibit lawyers from using a signature stamp or signing a trust account check in blank.  Both the Bar and the Court received comments addressed to this proposal.  In general, the comments assert that the proposed rule imposes a significant and disproportionate burden on lawyers who practice solo or in very small firms.  We believe the commentors have raised some legitimate concerns.  Accordingly, we decline to adopt subdivision (d) at this time, and instead refer the matter back to the Bar for additional study.  In particular, the Bar should revise its proposal so as to accommodate the issues raised by solo practitioners and lawyers in small firms." In re: Amendments to the Rules Regulating The Florida Bar (Biannual Report), __ So.3d ___, 37 Fla.L.Weekly S275 (Fla., No. SC10-1967, 4/12/2012), 2012 WL 1207226. 

Supreme Court grants Bar's motion to amend proposed advertising rules pending before the Supreme Court since July 2011 but removes case from oral argument calendar.  [Added 2/20/12]    In an unusual move, the Florida Bar filed a motion asking the Florida Supreme Court to accept amendments to two proposed advertising rules that the Bar filed with the Court in July 2011.  Oral argument on the previously-filed rules was scheduled for March 7, 2012.  In approving and making this filing, the Bar's Board of Governors waived the usual procedural requirements for notice to the Bar membership and asked the Court to shorten the usual 30-day post-filing period for Bar members to file comments.    Essentially, the proposed new amendments would prohibit lawyer advertisements from using actors portraying "authority figures," such as police officers and judges, who are acting as spokespersons for the advertiser.  The term "authority figure" is not defined in the proposed rules or comments.    On February 14, 2012, the Court granted the Bar's motion.  On its own motion, the Court also removed the advertising rules case from the oral argument calendar.  It is not clear whether or when the matter will be re-set for oral argument. 

Florida Supreme Court amends judicial administration rules, including rules for selection and term of chief justice.  [Added 2/10/12]  --  In re: Implementation of Judicial Branch Governance Study Group Recommendations – Amendments to the Florida Rules of Judicial Administration, 121 So.3d 1 (Fla. 2012). 

Professional Ethics Committee approves child support representation opinion, defers action on plea offers conditioned on waivers, and addresses other issues.  [Added 2/7/12]    At its meeting in Orlando on February 3, the Florida Bar Professional Ethics Committee addressed the following topics:    Representation of parents by state lawyers in Title IV-D child support matters.  The Committee approved Proposed Advisory Opinion (“PAO”) 11-1 after making minor modifications suggested by the Department of Revenue ("DOR").  PAO 11 was adopted in response to an inquiry from the Eleventh Judicial Circuit State Attorney's Office.  By state law DOR is responsible for administering the Title IV-D child support program in Florida, and the state attorney's office represents DOR.  In carrying out its duties, DOR may find itself seeking to enforce a child support obligation against a non-custodial parent and later seeking a reduction of the same support order on that non-custodial parent’s behalf.  F.S. 409.2564(5) provides that “[a]n attorney-client relationship exists only between the department and the legal services providers in all Title IV-D cases.”  Replacing withdrawn Florida Ethics Opinion 92-2, PAO 11 concludes that the DOR lawyer owes the parent none of the ethical obligations that are premised on the existence of a lawyer-client relationship, including the obligations of loyalty and confidentiality and that, accordingly, there are no ethical limitations on the lawyer’s representation of DOR in DOR’s providing services to a parent, regardless of a prior representation in which the services were provided to the other parent.  (PAO 11 will become final in 30 days if neither the State Attorney's Office nor DOR request review by the Board of Governors.)    Criminal plea offers conditioned on waivers of ineffective assistance of counsel and prosecutorial misconduct.  The Committee considered whether:  (1) a criminal defense lawyer has a conflict of interest that prevents the lawyer from advising a client whether to accept a plea offer requiring the client to waive any past or future ineffective assistance claims; and (2) whether it is impermissible for a prosecutor to make such a plea offer.  The Committee deferred action on the matter until its June 2012 meeting.    Settlement offers conditioned on waivers of right to statutory attorney’s fees.  The Committee affirmed a staff opinion addressing a situation in which opposing counsel made an offer specifying the amount of fees and costs that would be paid to the inquiring lawyer’s client as part of a settlement.  The inquiring lawyer believed that the offer created a conflict of interest because the inquirer’s time and costs greatly exceeded the amount offered.    Marketing legal services through an online service.  The Committee considered issues presented by an online service that matches prospective clients with lawyers who are interested in their cases.  The Committee indicated that there were possible problems with fee sharing, confidentiality, and unauthorized practice.    Lawyer working for a non-profit organization run by non-lawyers that provides immigration services.   The Committee was asked to consider an appeal of a staff opinion issued to a lawyer who asked about the ethical propriety of practicing law as an employee of a non-profit organization run by non-lawyers, where the organization provides immigration services to clients.  The staff opinion concluded that the practice was impermissible.  The Committee tabled consideration of the matter until its June 2012 meeting.    Sharing fees with suspended lawyer.  The Committee determined not to modify or withdraw Florida Ethics Opinion 65-21 in light of Santini v. Cleveland Clinic Florida, 65 So.3d 22 (Fla. 4th DCA 2011).  (Santini suggests that a lawyer who withdrew from a contingent fee case before a recovery was obtained because the lawyer was suspended from practice is not entitled to a fee.) 

Some of Florida's lawyer advertising rules held unconstitutional by federal court.  [Added 10/5/11]    
 On remand from the Eleventh Circuit (see Harrell v. Florida Bar, 608 F.3d 1241 (11th Cir. 2010), the U.S. District Court for the Middle District of Florida held some of Florida's lawyer advertising rules to be unconstitutional and permanently enjoined the Bar from enforcing them.  The case was decided on motions for summary judgment filed by Plaintiffs (Jacksonville lawyer William Harrell, his law firm, Harrell and Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc.) and by the Bar.    Plaintiffs argued that 5 of the Bar's rules governing lawyer advertising are impermissibly vague and thus facially invalid under the Due Process Clause to the Fourteenth Amendment.  Those 5 rules are:  Florida Rule of Professional Conduct 4-7.2(c)(1)(G) (prohibits statements that 'promise results'); Rule 4-7.2(c)(2) (prohibits statements 'describing or characterizing the quality of the lawyer's services'); Rule 4-7.2(c)(3) (prohibits 'visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events' that are manipulative); Rule 4-7.5(b)(1)(A) (prohibits TV and radio ads containing any feature that is manipulative); and Comment to Rule 4-7.1 ('Regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in a nonsensational manner').      Plaintiffs further contended that two rules were unconstitutional as applied.  Those 2 rules are:  Rule 4-7.2(c)(2) (prohibits statements 'describing or characterizing the quality of the lawyer's services'); and Rule 4-7.5(b)(1)(C) (prohibits TV and radio ads containing 'any background sound other than instrumental music').    As explained more fully below, the court held:  -- Rule 4-7.2(c)(1)(G) (statements promising results) and Rule 4-7.2(c)(2) (statements characterizing quality of services) are constitutional; -- Rule 4-7.2(c)(3) (manipulative descriptions or portrayals) and Rule 4-7.5(b)(1)(A) (manipulative features in TV and radio ads) are unconstitutionally vague on their face;-- the Comment to Rule 4-7.1 (ads should provide only useful, factual information) is unconstitutionally vague on its face; -- Rule 4-7.5(b)(1)(C) (prohibiting TV and radio ads with any background sound other than instrumental music) was unconstitutional as applied to Plaintiffs; and-- Rule 4-7.2(c)(2) (prohibiting use of statement "Don't Settle for Less Than You Deserve") was unconstitutional as applied to Plaintiffs.    The court declined the Bar's implied invitation to refrain from ruling on the case until the Florida Supreme Court acts on the Bar's proposed revisions to the advertising rules (what the court called the "Revised Rules").  The Revised Rules were submitted to the Supreme Court on July 5, 2011.  (Click here to see sunEthics.com summary of the Revised Rules.)  The Revised Rules, if adopted by the Florida Supreme Court, will replace the prohibition on "manipulative" techniques and the blanket prohibition on background sounds with a rule that prohibits "unduly manipulative" sounds, images, or dramatizations.Facial challenge to Rule 4-7.2(c)(1)(G) (statements promising results) and Rule 4-7.2(c)(2) (statements characterizing quality of services).  The court upheld these rules.  In order to sustain a facial challenge, Plaintiffs were required to prove that "'the enactment is vague ‘not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.’'  See [Village of] Hoffman Estates [v. Flipside, Hoffman Estates, Inc.], 455 U.S. [489] at 495 n.7 [(1982)] (internal citation omitted) (quoting Smith v. Goguen, 415 U.S. 566, 578 (1974)) . . .  As such, [Plaintiffs] must show that the challenged provisions simply have 'no core.'  Hoffman Estates, 455 U.S. at 495 n.7 (internal quotation omitted)."    The Bar's broad interpretation of the challenged rules was not fatal.  Similarly, the fact that the Bar's application of these rules to various ads "often appears to turn on fine, and at times almost imperceptible, distinctions" did not render them unconstitutionally vague.  The court noted that over a 14-year period the Bar's Ethics Department render 52,741 advisory opinions on ads and "only a handful" were cited by Plaintiffs as examples of arguably inconsistent or conflicting decisions.  Thus, "in most cases a Rules application to a particular advertisement is plain."  (Footnote omitted.)  The availability of advisory opinions "bolstered" the constitutionality of the rules by allowing bar members to get assistance "where the marginal applications of the Rules may otherwise be unclear."    Consequently, the court concluded that "[b]ecause [Plaintiffs have] failed to demonstrate that the 'promises results' and 'quality of services' Rules have 'no core,' Hoffman Estates, 455 U.S. at 495 n.7, the Court finds that Bar Rules 4-7.2(c)(2) and 4-7.2(c)(1)(G) are not unconstitutionally vague."Facial challenge to Rule 4-7.2(c)(3) (manipulative descriptions or portrayals) and Rule 4-7.5(b)(1)(A) (manipulative features in TV and radio ads).  The court struck down these rules.  The rules do not define "manipulative" or include a standard by which to assess whether an ad is impermissibly manipulative.  This means that the rules fail to give bar members adequate notice of what is prohibited and gives the Bar "unbridled discretion" in deciding which ads it will prohibit as manipulative.  The court rejected the Bar's attempt to tie the meaning of "manipulative" to securities statutes.  Furthermore, "unlike the 'promises results' and 'quality of services' Rules, the availability of advisory opinions does not ameliorate the vagueness problem with 'manipulative.'  Because the 'manipulative' Rules lack any 'core' meaning, the availability of 'necessarily arbitrary opinions,' see Harrell [], 608 F.3d at 1264 n.8, does not render the Rules any less vague or restrain the Bar’s discretion in applying them.  Indeed, the Bar’s enforcement of these Rules demonstrates their arbitrary application.  Although the Bar attempts to explain the inconsistent applications, its explanations do not reveal any particular standard or definition that applies, but instead amount to case-by-case rationalizations without any connection to the language of the Rules."Facial challenge to the Comment to Rule 4-7.1 (ads should provide only useful, factual information).  The court struck down this provision.  Again, the rules do not define "useful" or set forth standards for determining whether what is or is not "useful" in an ad.  "Because lawyers of common intelligence could easily differ on what constitutes 'useful' information in an attorney advertisement, this provision fails to provide any notice, much less 'fair notice' of what is prohibited to the members of the Florida Bar.  See [International Society for Krishna Consciousness of Atlanta v.] Eaves, 601 F.2d [809] at 830-31 [5th Cir. 1979)]."As-applied challenge to Rule 4-7.2(c)(2) (prohibiting use of statement "Don't Settle for Less Than You Deserve").  The court held that application of this rule to prohibit Plaintiffs from using the slogan "Don't Settle for Less Than You Deserve" was unconstitutional under the facts of the case.  (Because this was an as-applied challenge, the court did not have before it the issue of whether the Bar constitutionally could prohibit all quality of service statements.)  The Bar failed to satisfy the Central Hudson test (see Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557 (1980)).  The Bar presented "no evidence, anecdotal or otherwise, that the phrase has misled the public or tarnished the reputation of the legal profession in the public’s eyes."  (Emphasis by court.)  The court rejected the Bar's attempt to cite to data purportedly showing generally that TV advertising lowers the public's respect for the legal system.As-applied challenge to Rule 4-7.5(b)(1)(C) (prohibiting TV and radio ads with any background sound other than instrumental music).  The court held that application of this rule as it would apply to Plaintiffs' proposed ads was unconstitutional.  The court rejected the Bar's contention that this rule must be read in pari materia with Rule 4-7.2(c)(16), which prohibits sounds in ads that are "deceptive, misleading, manipulative, or  . . . likely to confuse the listener."  Instead, the court stated that "the meaning of Rule 4-7.5(b)(1)(C) is plain – the Rule categorically bans all background sounds in television and radio advertisements except instrumental music."    The Bar failed to satisfy the third prong of the Central Hudson test because it did not directly and materially advance the substantial governmental interests of preventing the public from being misled and preventing the erosion of public confidence in the judicial system.  The Bar's reliance on a 1989 study of the effects of lawyer advertising on public opinion was unavailing, as it "falls far short of the type of 'concrete evidence' necessary to justify the Bar’s categorical restriction on background sounds.  See Mason [v. Florida Bar], 208 F.3d [952] at 958 [(11th Cir. 2000)]."  Harrell v. Florida Bar, ___ F.Supp.2d ___ (M.D.Fla., No. 3:08-cv-15-J-34 TEM, 9/30/2011). 

Florida Supreme Court amends Rules of Judicial Administration regarding withdrawal motions, pro hac vice admissions, electronic filing, and electronic testimony.  [Added 10/4/11]    The Florida Supreme Court amended the Rules of Judicial Administration effective January 1, 2012.  A sunEthics.com summary of the changes appears below.    Motions to withdraw.  Amended Rule 2.505(f) requires that a motion to withdraw filed by a party's counsel include the client's last known telephone number and email address.  The Court stated in its opinion that the amendment would "make it easier for the court [in which the withdrawal motion was filed] to maintain contact with a party who may have to proceed pro se after withdrawal of the attorney."    Pro hac vice admission.  Amended Rule 2.510(a) requires an attorney licensed in another state seeking pro hac vice admission in a Florida court "must make application in each court in which a case is filed even if a lower tribunal granted a motion to appear in the same case."  However, the amended rule goes on to specify that "[a]ppearances at different levels of the court system in the same case shall be deemed 1 appearance for the purposes of determining whether a foreign attorney has made more than 3 appearances within a 365-day period."    Electronic filing.  New Rule 2.525(g) requires that "[a]ll documents transmitted in any electronic form under this rule must comply with the accessibility requirements of Florida Rule of Judicial Administration 2.526."  In turn, new Rule 2.526 requires that electronically-filed documents that become judicial branch records must be formatted in a manner that is accessible to persons with disabilities.    Electronic testimony.  Looking toward the wider use of electronically-transmitted testimony, the Court amended Rule 2.530(d) to provide:  "A county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure."  In explaining this change, the Court stated that the amendment "will allow the various Florida Bar rules committees to consider whether their bodies of rules should be amended to allow for the use of communication equipment without the parties consent."  In re: Amendments to the Florida Rules of Judicial Administration, 73 So.3d 210 (Fla. 2011). 

Professional Ethics Committee adopts proposed advisory opinion regarding representation of Department of Revenue in child support cases.  [Added 9/30/11]    At its meeting in Orlando on September 21, the Florida Bar Professional Ethics Committee voted to take action on several items of interest to Florida lawyers including the following.    The Committee voted to publish for comment Proposed Advisory Opinion ("PAO") 11-1.  PAO 11-1 was adopted in response to an inquiry from the Eleventh Judicial Circuit State Attorney's Office.  By state law state Florida Department of Revenue ("DOR")  is responsible for administering the Title IV-D child-12 support program in Florida.  The state attorney's office represents DOR.  The law requires DOR to review child support obligations to determine whether the amounts remain consistent with current support guidelines and to seek adjustments when appropriate.  In carrying out its duties, DOR may find itself seeking to enforce a child support obligation against a non-custodial parent and later seeking a reduction of the same support order on that non-custodial parent’s behalf.  Fla.Stat. sec. 409.2564(5) provides that "[a]n attorney-client relationship exists only between the department and the legal services providers in all Title IV-D cases."    Former Florida Ethics Opinion 92-2 had concluded that, despite section 409.2564(5), "it would be unethical for an attorney who has received confidential information from one parent to later act adversely to that parent in a matter involving that confidential information "  In response to the inquiry from the State Attorney's Office, the Professional Committee withdrew Opinion 92-2 at its June 2011 meeting.  PAO 11-1 was adopted to replace the withdrawn opinion.  PAO 11-1 referenced Department of Revenue v. Collingwood, 43 So.3d 952 (Fla. 1st DCA 2010), and concludes:  "Because the parent as a matter of law is not a client of the lawyer representing DOR, that lawyer owes the parent none of the ethical obligations that are premised on the existence of a lawyer-client relationship, including the obligations of loyalty and confidentiality.  Accordingly, there are no ethical limitations on the lawyer’s representing DOR in its (DOR’s) providing services to a parent, regardless of a prior representation in which the services were provided to the other parent."  In PAO 11-1 the Committee acknowledged the existence of Fla.Stat. sec. 90.502(5) but stated that "[a]lthough the Committee believes that this provision does not in itself create a lawyer-client relationship between the lawyer and the recipient of DOR’s services, its impact is a legal question beyond the scope of an ethics opinion."    PAO 11-1 will be published in the Florida Bar News along with a notice inviting any interested Bar members to file comments for consideration by the Committee at its next meeting.  See Rule 4(d), Florida Bar Procedures for Ruling on Questions of Ethics. 

Florida Supreme Court approves "housekeeping" changes to Rules Regulating The Florida Bar.  [Added 7/11/11]    In response to a petition filed in October 2010, the Florida Supreme Court adopted a number of "housekeeping" changes to the Rules Regulating The Florida Bar.  (The Bar had filed 2 petitions, one with "housekeeping" changes and the other (Case No. SC10-1967) with more substantive changes.  The Court has not yet acted on the substantive change proposals.)    Most of the housekeeping changes address things like adding citations or slight changes to wording in rules.  One of the more interesting changes adds the following language to the Comment to Rule 5-1.1, regarding trust accounts:  "The Supreme Court of Florida has held that lawyer trust accounts may be the proper target of garnishment actions.  See Arnold, Matheny and Eagan, P.A. v. First American Holdings, Inc., 982 So.2d 628 (Fla. 2008)."    The changes are effective October 1, 2011.  In re: Amendments to the Rules Regulating The Florida Bar (Biannual Report Housekeeping), 67 So.3d 1037 (Fla. 2011). 

Florida Bar asks Florida Supreme Court to approve major changes to lawyer advertising rules.  [Added 7/6/11]    On July 5, 2011, the Florida Bar filing a petition asking the Florida Supreme Court to approve a comprehensive overhaul of the rules governing lawyer advertising.  The proposed rules, including their numbering and arrangement, represent a substantial revision of the rules that have applied to lawyer advertising and solicitation in recent years.  Any changes to the rules must be approved by the Court.     Click here to view the Bar's petition.  Click here to view the full text of the proposed rules.  Click here to see the proposed rules with the Bar's explanatory notes.    A sunEthics.com summary of some of the significant features of the proposed rules appears below.    The new rules and their titles are:  Rule 4-7.1 (Application of Rules); 4-7.2 (Required Content); 4-7.3 (Deceptive and Inherently Misleading Advertisements); 4-7.4 (Potentially Misleading Advertisements); 4-7.5 (Unduly Manipulative or Intrusive Advertisements); 4-7.6 (Presumptively Valid Content); 4-7.7 (Payment for Advertising and Promotion); 4-7.8 (Direct Contact with Prospective Clients); 4-7.9 (Evaluation of Advertisements); 4-7.10 (Exemptions From the Filing and Review Requirement); 4-7.11 (Firm Names and Letterhead); 4-7.12 (Lawyer Referral Services); and 4-7.13 (Lawyer Directory).Proposed Rule 4-7.1 (Application of Rules).  The proposed rules apply to "all forms of communication in any print or electronic forum."  This includes "websites, social networking, and video sharing media."  Regarding websites of multistate law firms, the proposed Comment explains that the Florida advertising rules do not apply "to portions of a multistate firm’s website that relate to the provision of legal services in jurisdictions other than Florida."     The proposed rules apply to all lawyers, whether admitted in Florida or not, "who advertise that the lawyer provides legal services in Florida or who target advertisements for legal employment at Florida residents."  Regarding ads in "national media" (e.g., cable television), the proposed rules do not apply "if the disclaimer 'cases not accepted in Florida' is plainly noted in the advertisement." Proposed Rule 4-7.2 (Required Content).  All ads must contain the name of  the lawyer, law firm, lawyer referral service, or lawyer directory responsible for the ad.  If the cases being advertised for will be referred to another lawyer or firm, the ad must so state.  Any required information must appear in each language used in the ad.  (These requirements are in the current rules.)Proposed Rule 4-7.3 (Deceptive and Inherently Misleading Advertisements).  The proposed Rule defines deceptive or inherently misleading ads, and provides a non-exclusive list of deceptive or inherently misleading statements.  The list is significant primarily because of what the proposed rule would permit.    References to past results are permitted if "objectively verifiable."  (The proposed Comment points out that the affected client must give informed consent, even where "some or all of the information a lawyer may wish to advertise is in the public record.")    Comparisons or characterizations of the advertiser's "skills, experience, reputation or record" are permitted if "objectively verifiable."    The current rule requiring all non-lawyer spokespersons to be identified as such in ads is replaced by a rule requiring a "prominently displayed" notice ("Not an employee or member of law firm") where the person's voice or image "creates the erroneous impression that the person speaking or shown is the advertising lawyer or a lawyer or employee" of the advertiser.  Ads containing "dramatizations" of actual or fictitious events must contain a "prominently displayed" disclaimer, and a disclaimer must be "prominently displayed" when an actor "acting as a spokesperson" for the advertiser portrays someone "purporting to be engaged in a particular profession or occupation" (e.g., doctor, lawyer, police officer).    For the first time in many years, the proposed rule generally allows the use of testimonials but does not permit testimonials:  "(A) regarding matters on which the person making the testimonial is unqualified to evaluate; (B) that is not the actual experience of the person making the testimonial; (C) that is not representative of what clients of that lawyer or law firm generally experience; (D) that has been written or drafted by the lawyer; (E) in exchange for which the person making the testimonial has been given something of value; or (F) that does not include the disclaimer that the prospective client may not obtain the same or similar results."  The proposed Comment defines "testimonial" as "a personal statement, affirmation, or endorsement by any person other than the advertising lawyer or a member of the advertising lawyer’s firm regarding the quality of the lawyer’s services or the results obtained through the representation."    Finally, ads may not contain an advertising lawyer's "judicial, executive or legislative branch title with or without modifiers."  (The proposed Comment clarifies that "an accurate representation of one’s judicial, executive, or legislative experience is permitted in reference to background and experience in bios, curriculum vitae and resumes."). Proposed Rule 4-7.4 (Potentially Misleading Advertisements).  The proposed rules, for the first time, explicitly regulate "potentially misleading" ads.  The proposed Rule provides a non-exclusive list of potentially misleading ads that includes:    -- Ads subject to "varying reasonable interpretations, 1 or more of which would be materially misleading when 474 considered in the relevant context;"    -- Ads "that are literally accurate, but could reasonably mislead a prospective client regarding a material fact;" and    -- Ads with references to "membership in or recognition by an entity that purports to base such membership or organization on a lawyer’s ability or skill unless the entity conferring such membership or recognition is generally recognized within the legal profession as being a bona fide organization that makes its selections based upon objective and uniformly applied criteria" and draws from "a reasonable cross-section of the legal community the entity purports to cover."     The proposed Rule also provides that an ad may be rendered permissible through the inclusion of "information or statements that adequately clarify the potentially misleading issue." Proposed Rule 4-7.5 (Unduly Manipulative or Intrusive Advertisements).  The proposed Rule prohibits ads that are "unduly manipulative or intrusive."  An ad is "unduly manipulative" if it:  (a) has features designed to "solicit legal employment by appealing to a prospective client’s emotions rather than to a rational evaluation of a lawyer’s suitability to represent the prospective client;" (b) uses the voice of image of a "celebrity" (except a local announcer who regularly records ads and does not endorse the advertiser); or (c) "offers consumers an economic incentive to employ the lawyer or review the lawyer’s advertising" (except for discounted fees).    Neither the proposed Rule nor its Comment attempt to define what would be considered "intrusive."Proposed Rule 4-7.6 (Presumptively Valid Content).  The proposed Rules lists certain information that is "presumed not to violate" the advertising rules.  The items listed are almost identical that those contained in the current rules.  One notable addition allows the inclusion of membership in and positions held in any state bar (the current rule is limited to Florida Bar membership and positions held).Proposed Rule 4-7.7 (Payment for Advertising and Promotion).  The proposed Rule continues the prohibitions against (a) a lawyer paying the costs of ads by a lawyer not in the same firm (the Comment notes that firms may advertise jointly if all required information is included) and (b) a lawyer giving anything of value in exchange for a recommendation of the lawyer's services.  A new prohibition is added as subdivision (c):  "A lawyer may not permit a nonlawyer to pay all or a part of the cost of an advertisement by that lawyer."Proposed Rule 4-7.8 (Direct Contact with Prospective Clients).  The proposed Rule continues to prohibit most in-person solicitation.      The rules governing direct mail (including email) communication with prospective clients would be extended to all written communications seeking professional employment (not just "unsolicited" ones as provided for in the current rule).  Most of the specific requirements for direct mail communications remain unchanged.  The most significant change is that the word "Advertisement" must appear on each page of the communication (instead of only the first page).  Proposed Rule 4-7.9 (Evaluation of Advertisements).  The proposed Rule requires that all ads (except websites) be filed with the Bar 20 days in advance of their first use. (The current rule requires pre-filing of only television and radio ads.)  The proposed Rule prohibits the filing of "an entire website" for review.  A lawyer, however, "may obtain an advisory opinion concerning the compliance of a specific page, provision, statement, illustration, or photograph on a website," even though these are not required to be filed.    The current rule mandates that the Bar's finding that an ad is in compliance is binding on the Bar in a grievance proceeding (absent a misrepresentation not apparent from the face of the ad).  Significantly, the proposed Rule would allow the Bar to retract a finding of compliance at its pleasure, even when the underlying rules have not changed.  Continued dissemination of the no-longer-approved ad would subject the advertiser to discipline.    The proposed rule creates a limited safe harbor "take-down" period for websites.  A lawyer is subject to discipline for a non-complying website "only after 15 days have elapsed since the date" that the Bar sent a notice of noncompliance to the lawyer's official Bar address.    The ad review fees remain at $150 per timely-filed ad and $250 per late-filed ad.Proposed Rule 4-7.10 (Exemptions From the Filing and Review Requirement).  The exemptions from the filing-and-review requirement remain substantially unchanged under the proposed Rule.  It specifies that "a written or recorded communication requested by a prospective client" is exempt.  Although the communication itself is exempt from filing, the content of any such requested communication is subject to the advertising rules. (This is a change from the current rule, which provides that the ad rules do not apply to requested information.)    Additionally, the proposed rule provides that websites are not required to be filed for review.Proposed Rule 4-7.11 (Firm Names and Letterhead).  The proposed Rule leaves the standards governing firm names and letterhead unchanged.  The proposed Comment adds that a sole practitioner's use of "and Associates," "Group," or "Team" is impermissible because it "implies that more than one lawyer is employed in the advertised firm and is therefore misleading."Proposed Rule 4-7.12 (Lawyer Referral Services).  The proposed imposes a new requirement on the operation and advertising of lawyer referral services by mandating that all lawyer referral service ads affirmatively state "that lawyers who accept referrals from it pay to participate in the lawyer referral service."  (This is in addition to the affirmative "lawyer referral service" disclosure that currently is required.)Proposed Rule 4-7.13 (Lawyer Directory).  The proposed Rule recognizes, for the first time, a "lawyer directory."  This is defined as:  "[A]ny person, group of persons, association, organization, or entity that receives any consideration, monetary or otherwise, given in exchange for publishing a listing of lawyers together in one place, such as a common Internet address, a book or pamphlet, a section of a book or pamphlet, in which all the participating lawyers and their advertisements are provided and the viewer is not directed to a particular lawyer or lawyers."  Traditional telephone directories, and voluntary bar associations that list members on a website or in a publication, do not come within the definition.    Many of the regulations that apply to lawyer referral service ads also apply to "lawyer directories;" notable exceptions are:  there is no requirement for lawyers listed in a "lawyer directory" to be covered by malpractice insurance; and there is no requirement that the "lawyer directory" provide the Florida Bar with a list of participating lawyers.    Watch sunEthics.com for updates (rule changes filed with the Florida Supreme Court are tracked on our "Proposed Changes to Florida Bar Rules" page). 

Florida Supreme Court amends Florida Rule of Criminal Procedure 3.850 effective July 1, 2011.  [Added 6/30/11]The Florida Supreme Court amended several rules of procedure regarding postconviction proceedings and belated appeals.  Highlights of the changes are reported below.    Regarding the time limits for seeking postconviction relief in noncapital cases, the Court amended Fla.R.Crim.P. 3.850(b) as follows:  "[W]e amend subdivision (b)(1) to include the requirement that any motion under the rule based upon a claim previously unknown to the defendant or his counsel that could not have been ascertained through the exercise of due diligence must be filed within two years of when the facts were or could have been discovered through due diligence.  Subdivision (b)(2) adds the requirement that for any motion raising a claim of a fundamental right held retroactive which was not established within the time for seeking postconviction relief, the rule 3.850 motion must be filed within two years of the date of the mandate of the decision announcing retroactivity.  Lastly, subdivision (b)(3) adds an additional two-year limitation period to the original period for seeking postconviction relief under the rule for motions alleging that the defendant retained counsel to file a timely rule 3.850 motion and counsel, through neglect, failed to file the motion."    The Court imposed a 50-page limit on postconviction motions in noncapital cases, and set out a procedure for imposing sanctions for filing frivolous or malicious pleadings.  See amended rules 3.850(c) and 3.850(m).    The Court also amended the Rules of Appellate Procedure 9.141 and 9.142, relating primarily to belated appeals.    The rule changes are effective July 1, 2011.  In re: Amendments to Florida Rules of Criminal Procedure 3.850 and 3.851; Amendments to Florida Rules of Appellate Procedure 9.141 and 9.142, 72 So.3d 735 (Fla. 2011). 

Florida Bar Professional Ethics Committee withdraws Opinion 92-2 and declines to modify Opinion 79-7 (Reconsideration).  [Added 6/25/11]    At its meeting in Orlando on June 24, 2011, the Florida Bar Professional Ethics Committee addressed a number of interesting ethics issues.  Among the actions taken by the Committee were:Voted to withdraw Florida Ethics Opinion 92-2.  This opinion had concluded that, despite state statutes declaring that a lawyer for the (former) Department of Health and Rehabilitative Services represents the Department and not the parent seeking child support services through the Department, a Department lawyer who received confidential information from the parent could not later act adversely to that parent in a matter involving the confidential information.  The Committee acted on a request from the State Attorney's Office for the 11th Judicial Circuit.Voted to deny a request to modify Florida Ethics Opinion 79-7 (Reconsideration).  The opinion concludes, inter alia, that a lawyer who drafts pleadings for a pro se litigant must indicate on the pleadings that they were "prepared with the assistance of counsel."  A bar member had asked the Committee to modify the opinion by requiring disclosure of the assisting lawyer's identity.Voted to postpone until the September 2011 meeting consideration of a request for an opinion addressing the ethical propriety of a criminal prosecutor's offer to defense counsel of a plea agreement that includes a provision waiving claims of ineffective assistance of defense counsel.Voted to affirm a staff opinion addressing the ethical duties of a lawyer who learned that affidavits filed by the lawyer's client, the plaintiff in thousands of mortgage foreclosure cases over the past 20 years, were not correct.  Broadly stated, the staff opinion concluded that the lawyer was ethically obligated to disclose this information to the court in both pending and closed cases. 

Florida Bar Board of Governors approves major changes to lawyer advertising rules.  [Added 5/2811]    At its meeting in Key West on May 27, 2011, the Florida Bar Board of Governors voted to approve a comprehensive overhaul of the rules governing lawyer advertising that will now go to the Florida Supreme Court.  The proposed rules, including their numbering and arrangement, represent a substantial revision of the rules that have applied to lawyer advertising and solicitation in recent years.  The proposed rules will be submitted to the Florida Supreme Court on or about July 5, 2011.  Any changes to the rules must be approved by the Court. 

Florida Bar Board of Governors approves ethics opinion addressing how decedent's lawyer should respond to requests for confidential information.  [Added 4/4/11]    At its meeting in Orlando on March 25, 2011, the Florida Bar Board of Governors approved an advisory opinion published by the Bar's Professional Ethics Committee.  Florida Ethics Opinion 10-3 addresses the ethical issues faced by a lawyer who represented a decedent, but does not represent the personal representative, and is later asked by for confidential client information relating to the decedent by someone such as the personal representative, a beneficiary, or an heir.    The headnote to Opinion 10-3 summarizes the opinion's conclusions:  "A lawyer’s ethical obligations regarding a request for confidential information of a deceased client by the personal representative, beneficiaries or heirs-at-law of a decedent’s estate, or their counsel, will vary depending on the circumstances.  A lawyer may disclose confidential information to serve the deceased client’s interests, unless the deceased client previously instructed the lawyer not to disclose the information.  Whether and what information may be disclosed will depend on who is making the request, the information sought, and other factors.  Doubt should be resolved in favor of nondisclosure.  When compelled to disclose information via subpoena, a lawyer must disclose all information sought that is not privileged, and raise privilege as to any information for which there is a good faith basis to do so." 

Florida Supreme Court denies the Bar's motion to dismiss the website advertising rules case and stays further proceedings until July 5, 2011.  [Added 3/7/10]    The Florida Bar previously filed a motion to dismiss the pending case (Fla. Sup. Ct. case no. SC10-1014) in which the Bar asked for changes to the rule governing law and law firm websites.  The reason behind the dismissal request was the comprehensive re-write of the lawyer advertising rules that is being conducted by the Florida Bar Board of Governors.    On February 28, 2011, the Florida Supreme Court denied the Bar's motion to dismiss without prejudice.  The Court's order stated in part:  "On the Court's own motion, the proceedings in this case are hereby stayed until July 5, 2011, by which time The Florida Bar has indicated that it will file a petition, with proposed rule amendments, recommending a comprehensive revision of the Rules Regulating The Florida Bar pertaining to attorney advertising."    If you would like a PDF copy of the Order denying the motion to dismiss in the website case, please send an email request to Tim Chinaris at tchinaris@gmail.com.    Background information – Supreme Court delays implementation of new website advertising rules; at Court's direction, Florida Bar asks for changes to those rules.  [Added 6/8/10]    By its order dated June 10, 2010, the Florida Supreme Court granted the Florida Bar's emergency motion for a stay and delayed the implementation of the new website advertising rules.  The rules will now take effect "90 days from the date of the Court's ruling on In re: Amendments to the Rules Regulating The Florida Bar - Rule 4-7.6, Computer Accessed Communications, SC10-1014.  For more information, see the Florida Bar's website or watch sunEthics.com for updates (rule changes are tracked on the sunEthics "Proposed Changes to Florida Bar Rules" page).    The Florida Supreme Court previously approved substantial revisions to the rule governing lawyer and law firm websites.  This new version of Rule 4-7.6.  Click here for a summary of the changes.    Following up on the Court's action, the Florida Bar's Standing Committee on Advertising adopted "Guidelines for Lawyer and Law Firm Websites" to help lawyers bring their websites into compliance with the new rule.  The Bar submitted these Guidelines to the Supreme Court for informational purposes.  The Court responded by informing the Bar that the Guidelines were more than an "interpretation" of the rules and directed the Bar to submit to the Court proposed rule changes that would be consistent with the approach described in the Guidelines.        The Bar has filed the proposed changes with the Court.  The proposed rule would establish would spell out procedures that, if followed, would have the effect of turning a website or a portion of it into information “requested” by viewer.  The "requested" information would be exempt from the advertising rules, thus allowing inclusion of items such as testimonials, statements characterizing the quality of services, and listings of past results.    Click here to see the proposed rule changes.  Click here for an informative story in the June 15, 2010, issue of the Florida Bar News. 

Florida Supreme Court declines to amend Evidence Code to address inadvertent disclosure of privileged materials.  [Added 1/13/11]    The Florida Bar Board of Governors proposed amendments to the Florida Evidence Code that were recommended by a majority of the Bar's Code and Rules of Evidence Committee.  One of the proposals would have added a comment to Fla.Stat. sec. 90.502 and 90.507.  The Court declined to adopt the proposed comment.    The proposed comment, which was originally suggested as a result of the work of the Bar's Attorney-Client Privilege Task Force, would have stated:  "The concept of waiver by voluntary disclosure requires that the disclosing party intend by its disclosure to waive the applicable privilege. Inadvertent disclosure of a confidential matter or communication does not constitute a voluntary waiver of a privilege.  Florida appellate courts addressing the issue have applied the 'relevant circumstances' test in determining whether a claimed inadvertent disclosure amounts to a waiver of the privilege.  See, e.g., Jenney v. Airdata Wiman, Inc., 846 So.2d 664 (Fla. 2d DCA 2003); General Motors Corp. v. McGee, 837 So. 2d 1010 (Fla. 4th DCA 2003); Abamar Housing & Development, Inc. v. Lisa Daly Lady Decor, Inc., 698 So. 2d 276 (Fla. 3d DCA 1997).  See also Report of the American Bar Association Task Force on Attorney-Client Privilege, Recommendation 120D (2006)."    In declining to adopt the proposed comment, the Court stated:  "Because we have concerns with the comment, which appears to address an issue of law we have not yet ruled on, we decline to include it in those sections."  In re: Amendments to the Florida Evidence Code, 53 So.3d 1019 (Fla. 2011). 

Amendments to Fed.R.Civ.P. 26 effective Dec. 1, 2010, extend work product protection for expert witness reports and communications.  [Added 1/3/11]    Amendments to Federal Rule of Civil Procedure 26 that took effect on December 1, 2010, expand work product protection available in the case of expert witnesses.  Under the new version of the rule, work product protection now extends to drafts of expert reports as well as communications (written or oral) between lawyers and experts.    Click here for the amended version of Fed.R.Civ.P. 26.  Summaries of the changes appears in various places; click here for the summary that appears on the website of the American Institute of Certified Public Accountants. 

Florida Bar approves opinion requiring lawyers to protect confidentiality of client information stored on devices like copiers, scanners, fax machines, cell phones, and flash drives.  [Added 12/16/10]    At its December 2010 meeting the Florida Bar Board of Governors approved Florida Ethics Opinion 10-2, which had been promulgated earlier in the year by the Bar's Professional Ethics Committee.  Opinion 10-2 addresses the ethical obligations of a lawyer who chooses to use electronic devices that store information.  These "Devices" may include "computers, printers, copiers, scanners, cellular phones, personal digital assistants ('PDA’s'), flash drives, memory sticks, facsimile machines and other electronic or digital devices."    The opinion discusses ethical duties of competence (citing Rule 4-1.1, Florida Rules of Professional Conduct), confidentiality (Rule 4-1.6), and supervision (Rule 4-5.3).  Significantly, the opinion applies these duties to situations and circumstances that arise outside of a lawyer's office, such as hotels and copy centers.    Competence.  Opinion 10-2 states:  "If a lawyer chooses to use these Devices that contain Storage Media, the lawyer has a duty to keep abreast of changes in technology to the extent that the lawyer can identify potential threats to maintaining confidentiality.  The lawyer must learn such details as whether the Device has the ability to store confidential information, whether the information can be accessed by unauthorized parties, and who can potentially have access to the information.  The lawyer must also be aware of different environments in which confidential information is exposed such as public copy centers, hotel business centers, and home offices.  The lawyer should obtain enough information to know when to seek protection and what Devices must be sanitized, or cleared of all confidential information, before disposal or other disposition.  Therefore, the duty of competence extends from the receipt, i.e., when the lawyer obtains control of the Device, through the Device’s life cycle, and until disposition of the Device, including after it leaves the control of the lawyer."    Confidentiality.  Opinion 10-2 states:  "A lawyer must ensure confidentiality by taking reasonable steps to protect all confidential information under the lawyer’s control.  Those reasonable steps include identifying areas where confidential information could be potentially exposed."    Duty to supervise others.  Opinion 10-2 states:  "A lawyer’s supervisory responsibility extends not only to the lawyer’s own employees but over entities outside the lawyer’s firm with whom the lawyer contracts to assist in the care and maintenance of the Devices in the lawyer’s control.  If a nonlawyer will have access to confidential information, the lawyer must obtain adequate assurances from the nonlawyer that confidentiality of the information will be maintained."    Importantly for lawyers, these ethical obligations extend to "sanitization" of Devices no longer being used, such as old copiers or discarded cell phones.  "A lawyer has a duty to obtain adequate assurances that the Device has been stripped of all confidential information before disposition of the Device.  If a vendor or other service provider is involved in the sanitization of the Device, such as at the termination of a lease agreement or upon sale of the Device, it is not sufficient to merely obtain an agreement that the vendor will sanitize the Device upon sale or turn back of the Device.  The lawyer has an affirmative obligation to ascertain that the sanitization has been accomplished, whether by some type of meaningful confirmation, by having the sanitization occur at the lawyer’s office, or by other similar means.  Further, a lawyer should use care when using Devices in public places such as at copy centers, hotel business centers, and outside offices where the lawyer and those under the lawyer’s supervision have little or no control.  In such situations, the lawyer should inquire and determine whether use of such Devices would preserve confidentiality under these rules."    The headnote published with Opinion 10-2 summarizes the opinion this way:  "A lawyer who chooses to use Devices that contain Storage Media such as printers, copiers, scanners, and facsimile machines must take reasonable steps to ensure that client confidentiality is maintained and that the Device is sanitized before disposition, including: (1) identification of the potential threat to confidentiality along with the development and implementation of policies to address the potential threat to confidentiality; (2) inventory of the Devices that contain Hard Drives or other Storage Media; (3) supervision of nonlawyers to obtain adequate assurances that confidentiality will be maintained; and (4) responsibility for sanitization of the Device by requiring meaningful assurances from the vendor at the intake of the Device and confirmation or certification of the sanitization at the disposition of the Device." Florida Bar approves opinion addressing when lawyers may communicate with employees of state agency without consent of agency's counsel.  [Added 12/16/10]    At its December 2010 meeting the Florida Bar Board of Governors modified and approved an advisory ethics opinion addressing questions relating to a lawyer's communication with employees of a state agency without the consent of the agency's legal counsel.  Florida Ethics Opinion 09-1 was adopted earlier in the year by the Bar's Professional Ethics Committee.  The opinion applies Rule 4-4.2 of the Florida Rules of Professional Conduct. to a fact situation in which a law firm that represents 4 clients in judicial or administrative proceedings involving a state regulatory agency wishes to communicate with certain employees of the agency without going through the agency's legal counsel.    The headnote accompanying Opinion 09-1 summarizes the conclusions reached in the opinion:  "A lawyer may not communicate with officers, directors, or managers of State Agency, or State Agency employees who are directly involved in the matter, and other State Agency employees whose acts or omissions in connection with the matter can be imputed to State Agency about the subject matter of a specific controversy or matter on which a lawyer knows or has reason to know that a governmental lawyer is providing representation unless the agency's lawyer first consents to the communication.  A lawyer may communicate with other agency employees who do not fall within the above categories, and may communicate with employees who are considered represented by State Agency’s lawyer on subjects unrelated to those matters in which the agency lawyer is known to be providing representation.  The lawyer may be required to identify himself or herself as a lawyer who is representing a party in making those contacts.  Lawyers communicating with agency personnel are cautioned not to either purposefully or inadvertently circumvent the constraints imposed by Rule 4-4.2 and Rule 4-4.3 in their communications with government employees and officials.  If a lawyer does not know or is in doubt as to whether State Agency is represented on a particular matter or whether particular State Agency’s employees or officials are represented for purposes of the rule, the lawyer should ask State Agency’s lawyer if the person is represented in the matter before making the communication."  Florida Supreme Court adds to list of subjects that may be tested on Florida bar examination.  [Added 12/10/10]    At the request of the Florida Board of Bar Examiners, the Florida Supreme Court added to the list of subjects that may be tested on the Florida portion (Part A) of the Florida bar examination.  The Court amended the Rules of the Supreme Court Relating to Admissions to the Bar to add:  Constitutional criminal procedure and juvenile delinquency to the "criminal law" area; Articles 3 and 9 of the Uniform Commercial Code; dependency to the "family law" area; and professionalism.  The Rules were also amended rename one of the areas "'business entities,' to eliminate the specific reference to corporations and partnerships and to broaden the topics that can be tested within this subject."    The amendments will take effect on December 9, 2012.  In re: Amendments to Rules of the Supreme Court Relating to Admissions to the Bar, 51 So.3d 1144 (Fla. 2010). Florida Supreme Court amends Rules of Juvenile Procedure to require counsels' presence at juvenile detention hearings.  [Added 11/13/10]    At the request of the Florida Bar's Juvenile Rules Committee, the Florida Supreme Court amended Rule of Juvenile Procedure 8.010 to require the state attorney and the public defender (or their assistants) to attend juvenile detention hearings in person.  The Court commented that the new rule "is similar to a provision in the Florida Rules of Criminal Procedure, as amended on May 28, 2009.  See In re Amendments to Florida Rule of Criminal Procedure 3.130, 11 So.3d 341 (Fla. 2009) (amending rule 3.130(a) to require both the state attorney and the public defender, or their designated assistants, to attend all first appearance hearings)."    New Fla.R.Juv.P. 8.010(i) is effective January 1, 2011, and provides:  "Presence of Counsel. The state attorney or assistant state attorney and public defender or assistant public defender shall attend the detention hearing. Detention hearings shall be held with adequate notice to the public defender and state attorney. An official record of the proceedings shall be maintained. If the child has retained counsel or expresses a desire to retain counsel and is financially able, the attendance of the public defender or assistant public defender is not required at the detention hearing."  In re: Amendments to Florida Rule of Juvenile Procedure 8.010, 48 So.3d 809 (Fla. 2010). Florida Bar asks Florida Supreme Court to dismiss pending case regarding changes to website advertising rules.  [Added 10/29/10]    The Florida Bar has filed a motion to dismiss the pending case in which the Bar asked for changes to the rule governing law and law firm websites.  (Florida Supreme Court Case No. SC10-1014.)  The motion also seeks dismissal of a pending case regarding rule changes that could affect the way former judges refer to themselves in ads.  (Florida Supreme Court Case No. SC10-437.)    The reason behind the dismissal request is the comprehensive re-write of the lawyer advertising rules that is being conducted by the Florida Bar Board of Governors.    More information, and a link to the Motion to Dismiss, will be posted soon.  In the meantime, if you would like a PDF copy of the Motion to Dismiss please send an email request to Tim Chinaris at tchinaris@gmail.com. 

Florida Bar files annual package of rule change proposals with Supreme Court; comments are invited.  [Added 10/15/10]    On October 15, 2010, the Florida Bar filed its regular rule change package with the Florida Supreme Court.  Interested Bar members have 30 days from the filing date in which to file comments with the Supreme Court.  See Rule 1-12.1(e), (g), Rules Regulating The Florida Bar.    Links to the Bar petitions (the Bar bifurcated its filing into 2 petitions, one with the more substantive changes and the other with the "housekeeping" changes) and supporting materials will be posted as soon as they are available.  In the meantime, the proposals are shown in the "Official Notice" that was published in the September 1, 2010, issue of the Florida Bar News (click here).    The Bar's proposals address a number of topics; some of the significant proposals are summarized below.    Attorney's fees and subrogation/lien resolution (Rule 1.5).  The proposed new provision, numbered as subdivision (f)(4)(E) of Rule 1.5, would require a lawyer to state in the attorney-client contract "an explanation of the scope of any subrogation or lien resolution services the lawyer will undertake at the conclusion of the primary matter."  The lawyer ordinarily must ascertain the existence of liens and subrogation claims, inform the client of them, and make reasonable efforts to negotiate liens to the client's benefit.  When "extraordinary subrogation or lien resolution services" are required, with the client's "informed written consent" the lawyer may refer the client to someone outside the lawyer's law firm for these services.  The person or entity performing those "extraordinary" services may charge the client a separate fee, but if charged by a lawyer that fee must comply with applicable provisions of Rule 1.5 and the original lawyer may not share in that fee.  The Comment to the proposed new rule cautions lawyers not to refer lien or subrogation matters to "a nonlawyer or someone not authorized to provide the services," but gives no guidance regarding whether anyone other than a lawyer or law firm is legally authorized to provide such services.    Attorney's services and fees in wrongful death matters requiring probate or guardianship filings (Comment to Rule 1.5).  The proposed new provision to the Comment to Rule 1.5 would state that a lawyer handling a wrongful death matter in which an estate must be opened or a guardianship established may charge an additional fee for providing those services.  "The probate and guardianship matters are separate legal matters in which a separate reasonable fee may be charged" and they are "not considered part of the personal injury or wrongful death matter for which the lawyer is subject to the contingent fee schedule."  Similarly, "ancillary services such as estate planning, bankruptcy, financial planning, public benefit planning, tax planning, real estate transactions, and medicare set-asides are not considered part of the personal injury or wrongful death matter for which the lawyer is subject to the contingent fee schedule."    Minimum trust account records (Rule 5-1.2(b)).  The proposed amendment to Rule 5-1.2(b) would require that the name or case number of the client appear in the memo area of a trust account check and would specify the information that must be kept regarding electronic funds transfers.    Signing trust account checks (Rule 5-1.2(d)).  The proposed new provision to Rule 5-1.2 would require that all trust accounts be signed by a lawyer.  (This would eliminate the practice, approved in Florida Ethics Opinion 64-40 (Reconsideration), of having a trusted non-lawyer act an as a trust account signatory.)  The proposed new rule also would prohibit lawyers from signing trust account checks in blank and from signing using a signature stamp (or similar means).    Electronic wire transfers from trust accounts (Rule 5-1.2(e)).  The proposed new provision to Rule 5-1.2 would limit electronic wire transfers from a lawyer's trust account to:  "(1) money required to be paid to a client or third party on behalf of a client; (2) expenses properly incurred on behalf of a client, such as filing fees or payment to third parties for services rendered in connection with the representation; (3) money transferred to the lawyer for fees which are earned in connection with the representation and which are not in dispute; or (4) money transferred from one trust account to another trust account."    Pro hac vice appearances in Florida state courts by non-Florida lawyers (Comment to Rule 1-3.10).  The proposed new Comment to Rule 1-3.10 provides information regarding "what constitutes an 'appearance' under this rule and how to calculate the number of appearances in any 365-day period."   The proposed Comment provides examples of calculations using specific dates of pro hac vice admission.  The Comment further points out that the pro hac vice limits are ""not applicable to appearances in federal courts sitting in Florida, as appearances before each of those courts are regulated by the rules applicable to those courts" and that "an appearance in a federal court sitting in Florida does not constitute an ‘appearance’ as contemplated by" Rule 1-3.10.    Temporary practice in Florida by out-of-state lawyers following a major disaster (Rule 1-3.12 and Rule 4-5.5(c)).  Proposed new Rule 1-3.12 addresses authorizes pro bono practice in Florida by out-of-state lawyers following a major disaster in Florida (as determined by the Florida Supreme Court).  It also authorizes out-of-state lawyers to temporarily practice in Florida following a major disaster in their home jurisdiction.  The proposed rule sets out the conditions that apply to such practice, including the filing of a registration statement with the Florida Bar and notification to clients.  The proposed amendment to Rule 4-5.5(c) would provide that temporary practice pursuant to Rule 1-3.12 does not constitute the unlicensed practice of law in Florida.    Reporting misconduct of other lawyers and judges (Rule 4-8.3).  The proposed amendment to Rule 4-8.3 would add an exception to the duty to report misconduct of other lawyers and judges when a lawyer gains the information "while serving as a mediator or mediation participant if the information is privileged or confidential under applicable law."  The proposed addition to the Comment to Rule 4-8.3 explains:  "Generally, Florida statutes provide that information gained through a ‘mediation communication’ is privileged and confidential, including information which discloses professional misconduct occurring outside the mediation. However, professional misconduct occurring during the mediation is not privileged or confidential under Florida statutes."    Lawyers acting as court-appointed mediators (Comment to Rule 4-1.12; Comment to Rule 4-2.4).  The proposed amendment to the Comments to Rule 4-1.12 and Rule 4-2.4 would specify that Florida Bar members who act as certified "or court-appointed" mediators are governed by "the applicable law and rules relating to certified or court-appointed mediators."  (The current provisions refer only to certified mediators.) 

Florida Supreme Court adopts a Rule of Civil Procedure addressing inadvertent disclosure of privileged materials.  [Added 9/10/10]  --  In re: Amendments to the Florida Rules of Civil Procedure, 52 So.3d 579 (Fla. 2010).  Florida Supreme Court amends offer of judgment rule as it applies in vicarious liability situations.  [Added 9/10/10]  --  In re: Amendments to the Florida Rules of Civil Procedure, 52 So.3d 579 (Fla. 2010). 

Florida Supreme Court grants Florida Bar's motion for extension of time to respond to comments filed in website rules case.  [Added 7/24/10]    The Florida Supreme Court has granted the Florida Bar's motion for extension of time to file its response to comments that several interested bar members have filed regarding the Bar’s pending petition to further amend the website rule.    The Court previously amended the website rule to specify that all of the lawyer advertising rules (except the filing requirement) will apply to websites.  The Court has stayed implementation of that rule until 90 days after it hands down a decision on the Bar’s latest proposed rule change, which, if approved, will spell out procedures that a lawyer or law firm could use to turn a website (or a portion of it) into information “requested” by the viewer.  The "requested" information would be exempt from the advertising rules, thus allowing inclusion of things like testimonials, statements characterizing the quality of services, and listings of past results.    The Bar has until September 7, 2010, to file its response.  As a practical matter, this extension means that any final action by the Florida Supreme Court on the website rule likely will not take effect before the end of this year.    Follow the progress of this matter on sunEthics.com. Florida Supreme Court amends rules regarding lawyer-to-lawyer and lawyer-to-client communications.  [Added 7/9/10]    Ruling on a request from the Florida Bar, the Florida Supreme Court adopted rules that expressly exempt lawyer-to-lawyer and lawyer-to-client communications from the Bar's advertising rules.  These communications remain subject to other Rules of Professional Conduct, including the conflict rules and the rule against conduct involving dishonesty, fraud, deceit, or misrepresentation.    New Rule 4-7.1(e) will provide:  "Subchapter 4-7 shall not apply to communications between lawyers."  This was the text as proposed by the Bar.    In adopting the rule regarding communications with current or former clients, the Court added language on its own motion to emphasize that this rule may not be used to circumvent other advertising rules that should apply.  The Court's language also specifies that, for purposes of this rule, "former clients" of a lawyer do not include a public entity's clients or former clients.  New Rule 4-7.1(g) provides:  "Subchapter 4-7 shall not apply to communications between a lawyer and that lawyer’s own current and former clients.  However, a lawyer shall not provide advertising materials to the lawyer’s own current or former clients that the lawyer received from other attorneys – a lawyer shall not serve as a conduit for other attorneys’ advertising.  Further, as used in this rule, the term 'former clients' does not include the clients or former clients of a public entity."    The Court cautioned:  "One of the purposes of the advertising rules is to protect members of the public from false or misleading advertisements.  With this purpose in mind, we state that lawyers are prohibited from using these two exceptions to evade the requirements of the advertising rules.  A lawyer shall not provide advertising materials to the lawyer’s own current or former clients that the lawyer received from other attorneys.  This shall include lawyer-to-lawyer newsletters and brochures, if the attorney who supplied those materials is prohibited from directly distributing them to the general public."    The Court also ordered the Florida Bar to "undertake a comprehensive and contemporary study of marketing," noting that "it has become apparent that there are differences between advertising and marketing."    The new rules and revised Comment to Rule 4-7.1 become effective on October 1, 2010.  In re: Amendments to Rule Regulating The Florida Bar 4-7.1 – Lawyer-to-Lawyer and Lawyer-to-Client Communications, 41 So.3d 176 (Fla. 2010). 

Eleventh Circuit reverses summary judgment and allows challenges to some lawyer advertising rules to go forward.  [Added 6/18/10]  --      A Jacksonville lawyer, William Harrell, his law firm, Harrell and Harrell, P.A., and a non-profit public interest organization, Public Citizen, Inc., filed suit against the Florida Bar in the U.S. District Court for the Middle District of Florida.  The suit challenged certain lawyer advertising rules and sought declaratory and injunctive relief on the grounds that the rules violated the First and Fourteenth Amendments to the U.S. Constitution. The court granted the Bar's motion for summary judgment.  The plaintiffs appealed.  The Eleventh Circuit affirmed in part, reversed in part, and remanded.    The court summarized its decision:  "After thorough review, we conclude that Harrell’s facial vagueness challenge is justiciable with respect to five of the nine challenged rules.  [Those 5 rules are:  Florida Rule of Professional Conduct 4-7.2(c)(1)(G) (prohibits statements that 'promise results'); Rule 4-7.2(c)(2) (prohibits statements 'describing or characterizing the quality of the lawyer's services'); Rule 4-7.2(c)(3) (prohibits 'visual or verbal descriptions, depictions, illustrations, or portrayals of persons, things, or events that are deceptive, misleading, manipulative, or likely to confuse the viewer'); Rule 4-7.5(b)(1)(A) (prohibits TV and radio ads containing 'any feature that is deceptive, misleading, manipulative, or that is likely to confuse the viewer'); and Comment to Rule 4-7.1 ('Regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in a nonsensational manner').]  As to all but one of the nine rules, however, we agree with the district court that Harrell’s as-applied First Amendment challenge is not ripe, and therefore is nonjusticiable.  [The one rule for which the as-applied challenge is ripe is Rule 4-7.5(b)(1)(C) (prohibits TV and radio ads containing 'any background sound other than instrumental music').]  Turning to the question of Harrell’s slogan, we agree with Harrell that his challenge to the Bar’s rejection of 'Don’t settle for less than you deserve' is not moot.  Finally, we conclude on the merits that the Florida Bar’s twenty-day prefiling rule is constitutional."  Harrell v. The Florida Bar, 608 F.3d 1241 (11th Cir. 2010). Florida Supreme Court delays implementation of new website advertising rules.  At Court's direction, Florida Bar asks for changes to those rules.  [Added 6/10/10]    By its order dated June 10, 2010, the Florida Supreme Court has delayed the implementation of the new website advertising rules.  The rules will now take effect "90 days from the date of the Court's ruling on In re: Amendments to the Rules Regulating The Florida Bar - Rule 4-7.6, Computer Accessed Communications, SC10-1014.  For more information, see the Florida Bar's website or watch sunEthics.com for updates.    The Florida Supreme Court previously approved substantial revisions to the rule governing lawyer and law firm websites.  This new version of Rule 4-7.6 takes effect on July 1, 2010.  (Click here for a summary of the changes.)    Following up on the Court's action, the Florida Bar's Standing Committee on Advertising adopted "Guidelines for Lawyer and Law Firm Websites" to help lawyers bring their websites into compliance with the new rule.  The Bar submitted these Guidelines to the Supreme Court for informational purposes.  The Court responded by informing the Bar that the Guidelines were more than an "interpretation" of the rules and directed the Bar to submit to the Court proposed rule changes that would be consistent with the approach described in the Guidelines.     The Bar has filed the proposed rule changes with the Court.  Additionally, the Bar has asked the Court to delay implementation of the previously-approved changes.    Click here to see the proposed rule changes.  Click here for an informative story in the June 15, 2010, issue of the Florida Bar News.Watch sunEthics.com for updates. 

Florida Supreme Court amends rules governing mediator advertising and marketing practices.  [Added 4/2/10]  --  In re: Amendments to the Florida Rules for Certified and Court-Appointed Mediators, 32 So.3d 611 (Fla. 2010). 

Florida Supreme Court amends Basic Skills requirement to allow online course attendance, except for practicing with professionalism component.  [Added 2/8/10]  --  In re: Amendments to the Rules Regulating The Florida Bar -- Rules 6-12.3 and 6-12.4 (Basic Skills Course Requirements), 29 So.3d 288 (Fla. 2010), 2010 WL 375110. 

Florida supreme Court approves multiple changes covering fees, conflicts, candor to the court, advertising, trust accounting and more.  [Added 11/20/09]    The Florida Supreme Court issued its opinion responding to the Florida Bar's annual filing of proposed rule changes.  The Court approved most of the requested changes.  Many of the Court's actions are summarized below.      Attorney's fees (Rule 4-1.5).  The Court amended Rule 4-1.5(e) of the Florida Rules of Professional Conduct to address nonrefundable fees.  The rule continues to permit nonrefundable fees but specifies that a fee that is "nonrefundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee."  The Comment clarifies that the client need not sign the writing:  "A letter from the lawyer to the client setting forth the basis or rate of the fee and the intent of the parties in regard to the nonrefundable nature of the fee is sufficient to meet the requirements of this rule." Like all fees, nonrefundable fees must be reasonable:  "The test for reasonableness [of the fee] applies to all fees for legal services without regard to their characterization by the parties."  The Court, however, declined to adopt the Bar's proposed amendment to the Comment to Rule 4-1.5 that would have defined "retainers," "flat fees," and "advanced fees."  The Court explained:  "If the Bar seeks to defined these terms, the definitions should be thoroughly studied and proposed as a portion of the rule, rather than placed in the Comment."    Gifts to lawyers (Rule 4-1.8(c)).  Rule 4-1.8(c) prohibited lawyers from soliciting gifts from clients or preparing documents giving them gifts from clients, unless the client is a relative.  The Court amended the Comment to Rule 4-1.8 to state that the exception to the rule's prohibitions applies to relatives "related by blood or marriage" to the lawyer.    Financial assistance to clients (Rule 4-1.8(e)).  The Court amended the Comment to Rule 4-1.8(e) to clarify that it is permissible for a lawyer to advance on behalf of a client expenses of "diagnostic medical examination used for litigation purposes."  (In contrast, advances that are simply for medical treatment are not permitted under the rule.)    Conflicts of interest involving former clients (Rule 4-1.9).  The amendment to Rule 4-1.9 adds a new subsection (c) that prohibits a lawyer from "reveal[ing]" information relating to the representation of a former client without the former client's consent.  The prior version of Rule 4-1.9 only prohibited a lawyer's "use" of the information to the disadvantage of a former client.  The rule as amended contains exceptions to the prohibitions where the Rules Regulating The Florida Bar "permit or require" use or disclosure of the information (the prior exception referred only to "use").  The exception for "generally known" information continues to apply only to "use" of information about a former client.    Candor toward the tribunal (Rule 4-3.3).  The Bar proposed, and the Court adopted, 3 different amendments to Rule 4-3.3:The first amendment moves language from the Comment to Rule 4-2.4 (regarding lawyers serving as third-party neutrals) to the Comment to Rule 4-3.3.  This language specifies that the requirements of Rule 4-3.3 apply when a "dispute resolution process takes place before a tribunal, as in binding arbitration."  Otherwise, the lawyer's duty of candor in alternative dispute resolution processes "toward both the third party neutral and other parties is governed by rule 4-4.1."The second amendment reorganizes Rule 4-3.3 to bring it into closer conformity with ABA Model Rule of Professional Conduct 3.3.  Significant changes to Rule 4-3.3:  specify that a lawyer shall not make a false statement of any fact to a tribunal (the rule previously prohibited only false statements of "material" fact); clarify that a lawyer has an obligation to take reasonable remedial measures whenever "a lawyer, the lawyer's client, or a witness called by the lawyer" has offered material evidence and the lawyer later learns of its falsity; and add a provision from the ABA Model Rule requiring a lawyer who has knowledge of criminal or fraudulent conduct in connection with an adjudicative proceeding to "take reasonable remedial measures, including, if necessary, disclosure to the tribunal."  Changes to the Comment to Rule 4-3.3:  delete language that indicated that a lawyer's duty of candor may be different in civil and criminal matters; and add language specifying that a lawyer's duty of candor to the tribunal applies "in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition."The third amendment addresses a lawyer's responsibilities regarding client perjury.  The amendment to the Comment to Rule 4-3.3 removes language indicating that withdrawal from a representation could be a satisfactory "remedial measure" when a lawyer learns that a client or witness for the client has testified falsely, and adds language stating that "[i]n any case, the advocate should ensure disclosure is made to the court."  The amendment also deletes language from the Comment that previously was inserted in an attempt to harmonize the Rule and former Florida Ethics Opinion 90-6, concerning a lawyer's client who gave a false name to a police officer when arrested.  (Opinion 90-6 has since been withdrawn and replaced by Florida Ethics Opinion 90-6 (Reconsideration), which does not necessarily appear to be in harmony with all aspects of Rule 4-3.3 or the Comment.)    Celebrities and sounds used in lawyer ads (Rule 4-7.2).  The use of celebrities and certain sounds (i.e., sounds that are "deceptive, misleading, manipulative, or . . . likely to confuse the listener") previously were prohibited only in TV and radio ads.  The Court amended Rule 4-7.2(c) to extend this prohibition to all forms of lawyer advertising.    Direct mail ads in domestic violence injunction cases (Rule 4-7.4).  The Court amended Rule 4-7.4(b) to prohibit lawyers from sending direct mail ads to prospective clients if the ad "concerns a request for an injunction for protection against any form of physical violence and is addressed to the respondent in the injunction petition, if the lawyer knows or reasonably should know that the respondent named in the injunction petition has not yet been served with notice of process in the matter."    Speakers and sounds in TV and radio ads (Rule 4-7.5).  The Bar proposed an amendment to Rule 4-7.5 that would have deleted the requirement that a disclosure be made in TV and radio ads identifying a spokesperson as a nonlawyer when that is the case.  (The use of nonlawyer celebrity spokespersons is prohibited under the amendment to Rule 4-7.2, discussed above.)  The Court declined to adopt this proposal, as it had previously done in In re Amendments to The Rules Regulating the Florida Bar -- Advertising, 971 So.3d 763, 764 (Fla. 2007).  The Court adopted and quoted its reasoning as expressed in its prior opinion:  "[C]urrent rule 4-7.5 requires a nonlawyer spokesperson who speaks on behalf of a lawyer or law firm to comply with certain requirements.  The spokesperson must identify himself or herself as a spokesperson.  Also, the spokesperson must disclose that he or she is not an attorney practicing with the lawyer or firm.  The proposal for rule 4-7.5 would change the rule regarding affirmative disclosures by spokespersons.  . . .  In comparison to the proposal, the established requirements are consistently unambiguous in any advertising situation, simple to apply, and, thus, provide greater protection for the public.  Therefore, the Court does not adopt the proposal."    Bar review of ads (Rule 4-7.7).  The amendment to Rule 4-7.7:  extends from 15 days to 20 days the time period in which the Bar must respond to a lawyer who files a TV or radio ad for review (the additional 5 days is for "mailing time"); and requires that TV or radio ad filings include "a printed copy of any on-screen text."  The Comment was amended to clarify that an opinion of compliance from the Bar will be binding on the Bar "in a grievance proceeding."    Lawyer referral services (Rule 4-7.10).    The Court adopted the Bar's proposals for 2 amendments to Rule 4-7.10:The first amendment adds language emphasizing that a lawyer has the responsibility to ensure that a lawyer referral service's ads comply with applicable rules before accepting referrals from the service:  "It shall be a violation of these Rules Regulating The Florida Bar and a failure of such responsibility if the lawyer knows or should have known that the service is not in compliance with applicable rules or if the lawyer failed to seek information necessary to determine compliance."The second amendment appears to be designed to broaden the definition of "lawyer referral service."  The prior definition referred to the service receiving a "fee or charge" for causing the direct or indirect referral to a lawyer "drawn" from a specific group or panel of lawyers.  The new language refers to the receipt of "any consideration, monetary or otherwise, given in exchange" for a referral to a lawyer "selected" from a specific group or panel.    Responding to inquiries from the Florida Bar (Rule 4-8.4).  Amended Rule 4-8.4(g) makes failure to respond to an official inquiry without good cause "a matter of contempt" that may be processed in accordance with rule 3-7.11(f).  This allows the Bar to address a lawyer's failure to respond in a summary process rather than through the ordinary grievance process.    Sex with clients (Rule 4-8.4).  The Court amended Rule 4-8.4(i) to create a rebuttable presumption that sexual conduct commencing after formation of a lawyer-client relationship "exploits or adversely affects the interests of the client or the lawyer-client relationship."  A lawyer may rebut this presumption "by proving by a preponderance of the evidence that the sexual conduct did not exploit or adversely affect the interests of the client or the lawyer-client relationship."  The prohibition and presumption in the rule are personal to the involved lawyer and will not apply to other lawyers in the same firm "if the lawyer involved in the sexual conduct does not personally provide legal services to the client and is screened from access to the file concerning the legal representation."  The amended Comment to Rule 4-8.4 states that lawyer-client sexual conduct that began before formation of the lawyer-client relationship violates the rule if it "exploits the lawyer-client relationship, negatively affects the client's interest, creates a conflict of interest between the lawyer and client, or negatively affects the exercise of the lawyer's independent professional judgment in representing the client."    Trust account deposits in IOTA accounts (Rule 5-1.1).  The Court amended Rule 5-1.1(g) of the Rules Regulating Trust Accounts to clarify that "nominal or short term funds," which are exempt from the Interest on Trust Accounts (IOTA) Program, include funds that "the lawyer has determined cannot earn income for the client or third person in excess of the costs to secure the income."    Trust account overdraft protection (Rule 5-1.1).  The Court adopted Rule 5-1.1(k), which states:  "An attorney shall not authorize overdraft protection for any account that contains trust funds."    Trust account records (Rule 5-1.2).  The amendment to Rule 5-1.2 authorizes lawyers to maintain trust account records "stored in digital media as long as the copies include all data contained in the original documents and may be produced when required."  Copies of deposit slips and cancelled checks are now authorized forms of required records, provided that they are "clearly legible" and "include all endorsements and all other data and tracking information."        Failure to comply with subpoena for trust accounting records (Rule 5-1.2).  Amended Rule 5-1.2(g) makes failure to respond to timely produce trust accounting records "a matter of contempt" that may be processed in accordance with rule 3-7.11.  This allows the Bar to address a lawyer's failure to respond in a summary process rather than through the ordinary grievance process.    The amendments are effective on February 1, 2010.  In re: Amendments to the Rules Regulating The Florida Bar, 24 So.3d 63 (Fla. 2009).    NOTE:  Thanks to Florida Bar Ethics Counsel Elizabeth Clark Tarbert for her input regarding these rule changes. 

Florida Supreme Court dramatically changes rules governing lawyers' websites.  [Added 11/20/09]    In an opinion issued in response to the Florida Bar's motion for rehearing, the Florida Supreme Court amended the rules governing lawyer and law firm websites.  Formerly websites were considered "information upon request" and therefore were exempt from the lawyer advertising rules.  The new amendments dramatically change the regulation of lawyers' websites in Florida.    Consistent with views expressed by members of the Court at oral argument and in the Court's prior opinion, the Court amended Rule 4-7.6 ("Computer-Accessed Communications) in several respects.  The most significant change was to make lawyer websites subject to all of the substantive lawyer advertising rules, with one exception (websites will not be required to be filed with the Bar for review).  The Court explained:  "[T]he purpose of rule 4-7.6 is to protect consumers from misleading information, provide consumers with accurate and helpful information in the selection of a lawyer, and respect lawyers’ abilities to provide information about themselves to the public.  In light of this purpose, the Court intends that websites be subject to all of the substantive advertising regulations applicable to other advertising media (except the filing requirement)."  (Footnote omitted.)    The Court's action means that lawyer and law firm website may no longer include any references to past results or successes, testimonials, or statements characterizing the quality of the lawyer's services.  See Rule 4-7.2.    Websites must still "disclose all jurisdictions in which the lawyer or members of the law firm are licensed to practice law."  The rule, however, does not mandate where on the website this disclosure must appear; thus, it may appear on the home page or on an interior page or pages.    The Court also amended portions of Rule 4-7.6 concerning direct email communications to prospective clients and Internet advertisements.    Regarding email communications to prospective clients, the rule as amended "would clarify that email communications are subject to the rules that regulate advertisements by traditional mail."  Among other things, email communications must now:  (1) include a statement of the advertising lawyers' qualifications ("background, training and experience"): (2) inform the recipient if a lawyer other than the advertising lawyer will actually handle the matter; and (3) begin the subject line with the words "LEGAL ADVERTISEMENT."     The final amendment clarifies that "[a]ll unsolicited computer-accessed communications concerning a lawyer's or law firm's services not addressed by other provisions of [Rule 4-7.6] are subject to the requirements of rule 4-7.2" (the general advertising rule).    The amendments originally were to become effective on January 1, 2010.  In re: Amendments to the Rules Regulating The Florida Bar -- Rule 4-7.6, Computer Accessed Communications), 24 So.3d 172 (Fla., No. SC08-1181, 11/29/2009) (revised opinion on rehearing).    NOTE:  In an order in response to the Florida Bar's request, the Court decided that the amendments to Rule 4-7.6 would be effective July 1, 2010. 

Florida Supreme Court amends Rules of Criminal Procedure to require judges to inform defendants of driver's license consequences of guilty plea.  [Added 10/2/09]  --  In re: Amendments to Florida Rules of Criminal Procedure 3.172 and 3.985 and Amendments to Florida Rule of Civil Procedure 1.985, 20 So.3d 376 (Fla. 2009). 

Florida Bar Professional Ethics Committee tackles communication with represented government agencies by attorney-parties and their counsel, compensating fact witnesses, and insuring against attorney's fees awards.  [Added 9/14/09]    At its meeting in Tampa on September 11, 2009, the Florida Bar Professional Ethics Committee addressed a number of interesting, and in some cases novel, ethics issues.  Among the actions taken by the Committee were:Voted to draft, for consideration at its January 2010 meeting, a proposed advisory opinion concerning communication with a represented governmental entity by a lawyer who is a party to the controversy and is opposing the government.Voted to publish for comment Proposed Advisory Opinion 09-1 concerning application of Rule 4-4.2 in the context of communication with a governmental agency that concludes, inter alia, that a lawyer's communications with the agency's employees are not ethically prohibited solely because the agency has a general counsel.  (Proposed Advisory Opinion 09-1 was published in the October 1, 2009, issue of the Florida Bar News; comments must be filed with the Bar by October 30, 2009.  See Florida Bar Procedures for Ruling on Questions of Ethics.)Voted to affirm a staff opinion concluding that, under Rule 4-3.4(b), a lawyer may pay a fact witness "to reimburse a witness for the loss of compensation incurred by reason of preparing for, attending, or testifying at proceedings" but may not compensate a retired fact witness based solely on the witness's hourly rate that is sometimes earned as a consultant.Voted to reverse a staff opinion that had concluded it would be unethical for a lawyer to advance as an "expense" of litigation the premium for a to-be-developed insurance policy that would provide coverage for opposing counsel's attorney's fees and costs in the event that such were awarded after the lawyer's client had rejected a proposal for settlement made under F.S. 768.79 and Fla.R.Civ.P. 1.442.Voted to affirm a staff opinion concluding that it would be unethical for a lawyer to transfer ownership of his or her law firm to a revocable trust, even when the beneficiary of the trust is a Florida Bar member.

Supreme Court amends Florida Rule of Criminal Procedure 3.111(d) concerning waiver of counsel by criminal defendants suffering from severe mental illness.  [Added 9/1/09]  --  In re: Amendments to Florida Rule of Criminal Procedure 3.111, 17 So.3d 272 (Fla. 2009).  

Florida Bar Professional Ethics Committee approves one proposed rule change and rejects another, and considers medical lien negotiations and contacts with represented government agency employees.  [Added 7/2/09]At its meeting in Orlando on June 26, 2009, the Florida Bar Professional Ethics Committee considered a number of interesting ethical issues.  Actions taken by the Committee included:    --  Approved a proposed amendment to Rule 4-8.3, concerning reporting misconduct of others.  The proposed change would create an exemption from the reporting requirement for information that a lawyer learned while serving as a third-party neutral and the information is privileged or confidential under applicable law.  The proposed rule change will be considered by the Florida Bar Board of Governors.    --  Rejected a proposed rule that would have governed the practice of outsourcing legal support services to foreign countries.    --  Approved an informal advisory opinion regarding whether and when a lawyer may communicate about the subject matter of representation with managers or other employees of a government agency that is represented by counsel.    --  Approved an informal advisory opinion concluding that having a medical lien service negotiate reductions in medical liens on a "reverse contingent fee" basis in personal injury cases likely would result in an excessive fee for the lawyer handling the case.    --  Approved an informal advisory opinion concerning whether an insurance company's in-house counsel may represent both the company and another entity that is a surety of the company in defending a suit filed against both.  

Florida Bar Board of Governors adopts advisory opinion allowing lawyers to represent criminal defendant who is proceeding under false name.  [Added 6/3/09]    At its May 2009 meeting the Florida Bar Board of Governors adopted a revised version of Florida Ethics Opinion 90-6 (Reconsideration).  The headnote accompanying the opinion describes its conclusions as follows:A lawyer who learns that a criminal defendant is proceeding under a false name before the lawyer agrees to represent the criminal defendant who cannot persuade the client to correct the name must decline representation.  A lawyer who learns that a criminal defendant who is an existing client is proceeding under a false name must withdraw from representation and must admonish the client not to commit perjury, but cannot disclose the client’s use of the false name to the court unless the client makes an affirmative misrepresentation to the court regarding the name.    The opinion addresses the lawyer's obligation if the court will not permit withdrawal:  "If the lawyer learns of the false name after representation has begun, the lawyer should inform the client that the lawyer cannot assist the client in misleading the court regarding the client's identity, and the lawyer should attempt to persuade the client to disclose that the client is proceeding under a false name.  . . .  If the client refuses to disclose the information and insists that the client will maintain the false name throughout the case, the lawyer must move to withdraw from the client's representation.  . . .  The lawyer must counsel the client not to commit perjury.  . . .  If the court declines to permit withdrawal, the lawyer must continue the representation.  . . .  The lawyer may not inform the court of the false name except when the client affirmatively lies to the court concerning his or her true name."  [Emphasis added; citations omitted.]    Florida Ethics Opinion 90-6 (Reconsideration) as adopted by the Board differed from the version previously approved by the Florida Bar Professional Ethics Committee, which would have interpreted Rule 4-3.3, Florida Rules of Professional Conduct, to require the lawyer to disclose that the client was proceeding under a false name.  The opinion adopted by the Board does not explain why continuing to knowingly represent a client who is proceeding under a false name would not be considered a fraud on the court under Rule 4-3.3. 

Florida Bar asks Florida Supreme Court to expressly exempt from advertising rules communications between lawyers, and lawyers’ communications with current and former clients.  [Added 4/30/09] In January 2009 the Florida Bar filed a Report asking the Florida Supreme Court to amend Rule 4-7.1 to expressly exempt from the advertising rules lawyer-to-lawyer communication and lawyer-to-client communication. Proposed Rule 4-7.1(e) would state: "Subchapter 4-7 would not apply to communications between lawyers." Proposed Rule 4-7.1(g) would state: "Subchapter 4-7 would not apply to communications between a lawyer and that lawyer’s own current and former clients."]The Bar asserted that these proposals were unnecessary, and backed up its position with survey of Florida Bar members. The Bar also stated that the U.S. Supreme Court’s lawyer advertising cases provided support for the proposals:The main state interests that the bar has advanced in regulating lawyer advertising are as follows: protecting the public from misleading information; encouraging lawyers to provide useful, relevant information in their advertisements; protecting the privacy of the public against invasive advertising by lawyers; protecting the vulnerable public from undue influence and overreaching by a trained advocate; and protecting the integrity of the justice system by preventing the dissemination of advertisements that tend to promote disrespect for lawyers by the public and by extension, disrespect for the justice system. Those purposes are not met by applying lawyer advertising regulations to communications between lawyers. Therefore, the bar’s position is that the regulation of communications between lawyers is not a reasonable fit to the rationale of the bar in propounding lawyer advertising regulations.(Commercial speech, such as lawyer advertising, may constitutionally be regulated only to protect a substantial state interest and only where that interest is directly advanced by the regulation and the regulation is no more extensive than necessary to serve that interest. See Central Hudson Gas and Electric Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 100 S.Ct. 2342 (1980).)  

Florida Bar Board of Governors approves guidelines regarding "offshoring" of legal services.  [Added 4/7/09]    At its meeting in Miami on April 3, 2009, the Florida Bar Board of Governors approved "Guidelines Regarding Offshoring Legal Services."  The Guidelines were developed by the Bar's Professional Ethics Committee.  The Board had asked the Committee to further study the issue of outsourcing legal services, particularly to foreign countries.  In response, the Committee prepared the Guidelines to accompany Florida Ethics Opinion 07-2.  

Florida Supreme Court rejects Florida Bar's proposed changes to advertising rules governing lawyers' websites.  [Added 3/2/09]    In February 2008 the Florida Bar petitioned the Florida Supreme Court to amend the rules regulating lawyers' websites.    Changes proposed by the Bar's to current Rule 4-7.6 included:Homepages of lawyers' websites would be subject to the requirements of Rule 4-7.2 (the general lawyer advertising rule);A lawyer's website would not be required to disclose all jurisdictions in which the lawyer is licensed to practice;Interior pages of lawyers' websites would be subject to Rule 4-7.2, except that lawyers could include truthful and factually verifiable testimonials, information about past results obtained, and descriptions or characterizations of the quality of the lawyers' services, provided that these items are accompanied by appropriate disclaimers;Email messages to prospective clients would continue to be governed by Rule 4-7.4 and would have to contain a subject line that begins with the words "LEGAL ADVERTISEMENT;"If not addressed by other portions of Rule 4-7.6, all unsolicited computer-accessed communications concerning lawyers or their services (e.g., banner ads, pop-up ads) would be subject to Rule 4-7.2; andLawyers' websites would not be required to be filed with the Bar for review.    In an opinion joined by 5 of the 7 justices, the Court rejected the Bar's proposed amendments to Rule 4-7.6.    The Court observed that the Bar's proposals sought to establish an "intermediate" regulatory position "between full application of all lawyer advertising rules and no regulation of websites under the lawyer advertising rules" by requiring the homepage to comply with all substantive advertising regulations while the interior pages were essentially treated as information provided to prospective clients upon request.  The Court disagreed:  "In contrast to the Bar’s arguments, we find that the proposed amendments are not sufficient to make material behind the homepage fall under the concept of information 'upon request' (which is exempted from regulation by subchapter 4-7, pursuant to rule 4-7.1(f)).  We recognize, however, that sufficient changes could be made to the rules regulating websites to make pages behind the homepage constitute material 'upon request.'  For example, a website could require users to complete two steps on webpages before they could access result or testimonial information.  First, a user could be required to complete a 'Request' page with their name, address, and phone number (all required fields).  Second, a disclaimer page could appear with the bottom of the page requiring a click on a button to indicate that the user had read the disclaimer (and an option for the user to discontinue the request for information).  Only after the user navigated through these two pages would the user be able to obtain the additional information.  This process would make obtaining information from a website similar to obtaining information 'upon request' from a lawyer, when a potential client picks up a phone and calls a lawyer to ask for information, and then is mailed a DVD or brochure by the lawyer with the requested information."    The Court also responded to the Bar's concerns about the "significant difficulties in regulating websites" due to considerations such as "the fact that websites are not static" and the fact that websites "can present voluminous amounts of information, making the Bar's review of that information an overwhelming task."  The Court recommended what it viewed as a solution:  "[W]e we suggest that the Bar consider requiring attorneys to certify their compliance with the computer-accessed communications rules.  This required certification could be included on Bar members’ annual dues statements, similar to the required certification of compliance with the trust accounting rules.  See R. Regulating Fla. Bar 5-1.2(c)(5) (lawyers shall annually file with the Bar a trust accounting certificate showing compliance with the trust accounting rules).  If the Bar’s general investigations of websites reveal an attorney whose website does not comply with the advertising rules, the Bar could then proceed with a disciplinary investigation of the attorney, in a manner similar to when the Bar discovers violations of the trust accounting rules."    The Court also rejected the Bar's proposal to eliminate the current requirement that websites disclose all jurisdictions where the lawyer is licensed to practice.  The Court stated that "the existing requirement in rule 4-7.6 is necessary to protect members of the public who might find an attorney through computer-accessed advertising, and the requirement does not unduly burden the advertising attorney.  Because a person can be located almost anywhere in the world when she finds the webpage of an advertising attorney, the rules should continue to require the attorney’s homepage to clearly state the jurisdictions in which the attorney is licensed to practice."    Finally, the majority opinion agreed with the concurring and dissenting opinions that the use of testimonials "should be further considered by The Florida Bar" and, by separate letter, referred a request to the Bar to "study and define the term 'testimonials'."    Justice Pariente, joined by Justice Labarga, authored a concurring opinion in which she commented that "lawyer advertising has changed the face of the legal profession and that change has not been a positive one."  She agreed with the majority's suggestion that the Bar fashion a rule that would require anyone seeking material beyond the homepage "must complete at least two steps (or two clicks of the mouse) until information appears that would be deemed the equivalent of 'information upon request'."  She also expressed the view that the use of testimonials could be "troubling" and have a "potential for abuse and . . . for further denigrating the justice system and this profession in the minds of the public."    Justice Canady wrote a concurring opinion in which he also questioned the use of testimonials, as well as statements regarding the use of past results.  He pointed out that "[t]he provisions of rule 4-7.2(c)(1) suggest that testimonials and statements regarding results obtained may by their very nature run afoul of the general prohibition in rule 4-8.4(c) of 'dishonesty, fraud, deceit, or misrepresentation,' and thus would not be permissible even as information provided at the request of a prospective client."    Chief Justice Quince concurred in part and dissented in part.  "I concur in the majority’s decision to not adopt the proposed amendments.  However, I disagree with that portion of the opinion that suggest that if a user has to navigate at least two pages that makes the rest of the website 'upon request' and therefore the rest of the website would not be subject to regulation by the Bar.  . . .  It seems incongruous to me that we are considering a loosening of the advertisement rules and the allowance of more self-lauding statements, i.e., past results and testimonials, in a forum that the Bar admits it cannot adequately review and which changes frequently.  I would therefore apply the advertising rules to websites."  In re: Amendments to the Rules Regulating The Florida Bar -- Rule 4-7.6, Computer Accessed Communications, __ So.3d ___, 34 Fla.L.Weekly S261 (Fla., No. SC08-1181, 2/27/09), 2009 WL 485105.  NOTE:  The Court's original opinion was withdrawn on rehearing and replaced on 11/29/2009.  

ABA House of Delegates amends Model Rule of Professional Conduct to allow law firms to screen lateral hires in order to prevent disqualification.  [Added 2/17/09]  -- 

Florida Bar Ethics Committee approves guidelines for "offshoring" legal services and affirms advisory opinion concerning confidentiality of unilateral communications to lawyers.  [Added 1/26/09]    At its meeting in Miami on January 16, 2009, the Florida Bar Professional Ethics Committee took actions that included that following:-- In response to a request from the Bar's Board of Governors that the Committee further study the issue of outsourcing legal services, particularly to foreign countries, the Committee adopted "Guidelines Regarding Offshoring Legal Services" to accompany Florida Ethics Opinion 07-2.  The Guidelines will be submitted to the Board of Governors.  (The Board approved the Guidelines on April 3, 2009.).-- Re-affirmed a slightly modified version of Florida Ethics Opinion 07-3, concerning the scope of the duty of confidentiality that may be owed in connection with a prospective client's unilateral communications to a lawyer or law firm.  The Committee considered this matter at the request of the Board of Governors. 

Florida Bar files multiple rule change requests with Florida Supreme Court covering fees, conflicts, advertising, trust accounting and more.  [Added 10/22/08]    On October 7, 2008, the Florida Bar filed its regular rules change package with the Florida Supreme Court.  Interested Bar members have 30 days from the filing date to file comments in the Supreme Court.  See Rule 1-12.1(g), Rules Regulating The Florida Bar.  The proposals address a number of rules; some of the significant proposals are summarized below.    Attorney's fees (Rule 4-1.5).  The proposed amendment to Rule 4-1.5(e) of the Florida Rules of Professional Conduct addresses nonrefundable fees.  The proposed change would continue to permit nonrefundable fees but would specify that a fee that is "nonrefundable in any part shall be confirmed in writing and shall explain the intent of the parties as to the nature and amount of the nonrefundable fee."  The test for reasonableness of the fee "applies to all fees for legal services without regard to their characterization by the parties."  The proposed amendment to the Comment to Rule 4-1.5 provides definitions of "retainers," "flat fees," and "advanced fees."    Gifts to lawyers (Rule 4-1.8(c)).  Rule 4-1.8(c) prohibits lawyers from soliciting gifts from clients or preparing documents giving them gifts from clients, unless the client is a relative.  The proposed amendment to the Comment to Rule 4-1.8 would specify that the exception to the rule's prohibitions applies to relatives "related by blood or marriage" to the lawyer.    Financial assistance to clients (Rule 4-1.8(e)).  The proposed amendment to the Comment to Rule 4-1.8(e) would clarify that it is permissible for a lawyer to advance on behalf of a client expenses of "diagnostic medical examination used for litigation purposes."  (In contrast, advances for medical treatment are not permitted under the rule.)    Conflicts of interest involving former clients (Rule 4-1.9).  The proposed amendment to Rule 4-1.9 would add a new subsection (c) that would prohibit a lawyer from "reveal[ing]" information relating to the representation of a former client without the former client's consent.  The current version of Rule 4-1.9 only prohibits a lawyer's "use" of the information to the disadvantage of a former client.  The proposed amendment contains exceptions to the prohibitions where the Rules Regulating The Florida Bar "permit or require" use or disclosure of the information (the present exception refers only to "use").  The present exception for "generally known" information would continue to apply only to "use" of information about a former client.    Candor toward the tribunal (Rule 4-3.3).  The Bar's petition describes 3 different proposals for amendments to Rule 4-3.3:    The first proposal would move language from the Comment to Rule 4-2.4 (regarding lawyers serving as third-party neutrals) to the Comment to Rule 4-3.3.  The language specifies that the requirements of Rule 4-3.3 apply when a "dispute resolution process takes place before a tribunal, as in binding arbitration."  Otherwise, the lawyer's duty of candor "toward both the third party neutral and other parties is governed by rule 4-4.1."    The second proposal would reorganize Rule 4-3.3 to bring it into closer conformity with ABA Model Rule of Professional Conduct 3.3.  Significant proposed changes to Rule 4-3.3 would:  specify that a lawyer shall not make a false statement of any fact to a tribunal (the rule presently prohibits only false statements of "material" fact); clarify that a lawyer has an obligation to take reasonable remedial measures whenever the lawyer, "the lawyer's client, or a witness called by the lawyer" has offered material evidence and the lawyer later learns of its falsity; and add a provision from the ABA Model Rule regarding a lawyer's obligation with respect to knowledge of criminal or fraudulent conduct in connection with an adjudicative proceeding.  Proposed changes to the Comment would:  delete language indicating that a lawyer's duty of candor may be different in civil and criminal matters; and add language specifying that a lawyer's duty of candor to the tribunal applies "in an ancillary proceeding conducted pursuant to the tribunal's adjudicative authority, such as a deposition."    The third proposal would address a lawyer's responsibilities regarding client perjury.  The proposed amendment to the Comment to Rule 4-3.3 would remove language indicating that withdrawal from the representation could be a satisfactory "remedial measure" when a lawyer learns that a client or witness for the client has testified falsely and would add language stating that "[i]n any case, the advocate should ensure disclosure is made to the court."  The proposal would also delete language from the Comment that previously was inserted in an attempt to harmonize the Rule and Florida Ethics Opinion 90-6, concerning a lawyer's client who gave a false name to a police officer when arrested.  (Opinion 90-6 has since been withdrawn; click here and scroll down to read a discussion of Proposed Advisory Opinion 90-6 (Reconsideration).)    Celebrities and sounds used in lawyer ads (Rule 4-7.2).  The use of celebrities and certain sounds (i.e., sounds that are "deceptive, misleading, manipulative, or . . . likely to confuse the listener") presently are prohibited only in TV and radio ads.  The proposed amendment to Rule 4-7.2(c) would extend this prohibition to all forms of lawyer advertising.    Direct mail ads in domestic violence injunction cases (Rule 4-7.4).  The proposed amendment to Rule 4-7.4(b) would prohibit lawyers from sending direct mail ads to prospective clients if the ad "concerns a request for an injunction for protection against any form of physical violence and is addressed to the respondent in the injunction petition, if the lawyer knows or reasonably should know that the respondent named in the injunction petition has not yet been served with notice of process in the matter."    Speakers and sounds in TV and radio ads (Rule 4-7.5).  The proposed amendment to Rule 4-7.5 would delete the current requirement that a disclosure be made in TV and radio ads identifying a spokesperson as a nonlawyer when that is the case.  (The use of nonlawyer celebrity spokespersons would still be prohibited under the proposed amendment to Rule 4-7.2, discussed above.)  The proposed amendment would also eliminate the current restriction against any background sound other than instrumental music.  (The current restriction would be replaced by the proposed amendment to Rule 4-7.2(c), which would prohibit all sounds that are "deceptive, misleading, manipulative, or . . . likely to confuse the listener".)    Bar review of ads (Rule 4-7.7).  The proposed amendment to Rule 4-7.7 would:  extend from 15 days to 20 days the time period in which the Bar must respond to a lawyer who files a TV or radio ad for review (the additional 5 days is for "mailing time"); require that TV or radio ad filings include "a printed copy of any on-screen text;" and provide that an opinion of compliance from the Bar will be binding on the Bar "in a grievance proceeding."    Lawyer referral services (Rule 4-7.10).    The Bar's petition describes 2 different proposals for amendments to Rule 4-7.10:    The first proposal adds language emphasizing that a lawyer has the responsibility to ensure that a lawyer referral service's ads comply with applicable rules before accepting referrals from the service:  "It shall be a violation of these Rules Regulating The Florida Bar and a failure of such responsibility if the lawyer knows or should have known that the service is not in compliance with applicable rules or if the lawyer failed to seek information necessary to determine compliance."    The second proposal appears to broaden the definition of "lawyer referral service."  The current definition refers to the service receiving a "fee or charge" for causing the direct or indirect referral to a lawyer "drawn" from a specific group or panel of lawyers.  The proposed language would refer to the receipt of "any consideration, monetary or otherwise, given in exchange" for a referral to a lawyer "selected" from a specific group or panel.    Responding to inquiries from the Florida Bar (Rule 4-8.4).  The proposed amendment to Rule 4-8.4(g) would make failure to respond to an official inquiry without good cause "a matter of contempt" that may be processed in accordance with rule 3-7.11(f).  This would allow the Bar to address failure to respond in a summary process rather than through the ordinary grievance process.    Sex with clients (Rule 4-8.4).  The proposed amendment to Rule 4-8.4(i) would create a rebuttable presumption that sexual conduct commencing after formation of a lawyer-client relationship "exploits or adversely affects the interests of the client or the lawyer-client relationship."  A lawyer could rebut this presumption "by proving by a preponderance of the evidence that the sexual conduct did not exploit or adversely affect the interests of the client or the lawyer-client relationship."  The prohibition and presumption in the rule would be personal to the involved lawyer and would not apply to other lawyers in the same firm "if the lawyer involved in the sexual conduct does not personally provide legal services to the client and is screened from access to the file concerning the legal representation."  The proposed Comment to Rule 4-8.4 would state that lawyer-client sexual conduct that began before formation of the lawyer-client relationship would violate the rule if it "exploits the lawyer-client relationship, negatively affects the client's interest, creates a conflict of interest between the lawyer and client, or negatively affects the exercise of the lawyer's independent professional judgment in representing the client."    Trust account overdraft protection (Rule 5-1.1).  The proposed amendment adding Rule 5-1.1(k) of the Rules Regulating Trust Accounts would state:  "An attorney shall not authorize overdraft protection for any account that contains trust funds."    Trust account records (Rule 5-1.2).  The proposed amendment to Rule 5-1.2 would authorize lawyers to maintain trust account records "stored in digital media as long as the copies include all data contained in the original documents and may be produced when required."  Florida Supreme Court amends Rule 4-5.5 and related rules regarding multijurisdictional practice of law in Florida by out of state lawyers.  [Added 9/12/08]    Responding to a report and recommendations filed by the Florida Bar, the Florida Supreme Court amended Rule 4-5.5 of the Florida Rules of Professional Conduct, as well as related Rule 1-3.11 of the Rules Regulating the Florida Bar and Florida Rule of Judicial Administration 2.510.  (When substantially amending Rule 4-5.5 in 2005, the Court had directed the Bar to monitor the implementation of the new rule and report back to the Court with any recommendations for changes or improvements.  See In re: Amendments to Rule Regulating the Florida Bar and Florida Rules of Judicial Administration, 907 So.2d 1138 (Fla. 2005).)    The primary substantive change made by the Court to Rule 4-5.5 was the clarification of language that the Bar considered confusing regarding the fact that any out-of-state lawyer who temporarily practices law in Florida pursuant to Rule 4-5.5 must personally meet the qualifying standards under that rule.  The language deleted by the Court had indicated that a lawyer who was "assisting" another lawyer authorized under Rule 4-5.5 to appear in a Florida proceeding could also appear in that proceeding without personally being authorized.  The Bar's Report in support of the rule change pointed out that this change was proposed in order to bring the language of the rule more squarely in line with the intent of the rule as it was originally approved by the Bar.    The Court also amended the Comment to Rule 4-5.5 regarding the verified statement that Rule 1-3.11 requires to be filed by an out-of-state lawyer who is appearing in a Florida arbitration.  The revised Comment clarifies that, if the out-of-state lawyer had been admitted pro hac vice in a Florida court case and the court orders that the case be sent to arbitration, "[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."    The Court also amended Florida Rule of Judicial Administration 2.510 and the pro hac vice form included within the rule.    The rule changes are effective January 1, 2009.  (For the current version of Rule 4-5.5, click here.  For the amended version of Rule 4-5.5, click here.)  In re: Amendments to the Rules Regulating The Florida Bar and the Rules of Judicial Administration -- Multijurisdictional Practice of Law, 991 So.2d 842 (Fla. 2008). 

Florida Bar Board of Governors approves Florida Ethics Opinion 07-2 concerning outsourcing legal work to foreign countries.  [Added 7/31/08]    At its meeting in Clearwater on July 25, 2008, the Florida Bar Board of Governors voted to slightly modify and approve Florida Ethics Opinion 07-2.  The opinion addresses ethical issues presented by Florida lawyers who outsource legal work to foreign countries.  Opinion 07-2 concludes that, if certain caveats are followed, the practice may be ethically permissible.  The Board committee voted to approve the opinion with the addition of language cautioning lawyers to "be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties, particularly where the information concerns medical records or financial information."    The headnote summarizing Florida Ethics Opinion 07-2 states:  "A lawyer is not prohibited from engaging the services of an overseas provider to provide paralegal assistance as long as the lawyer adequately addresses ethical obligations relating to assisting the unlicensed practice of law, supervision of nonlawyers, conflicts of interest, confidentiality, and billing.  The lawyer should be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties."      

Florida Bar Professional Ethics Committee reaffirms advisory opinion addressing duties of lawyer whose criminal defense client is proceeding under false name  [Added 6/23/08]    At its meeting in Boca Raton on January 20, 2008, the Florida Bar Professional Ethics Committee reaffirmed Proposed Advisory Opinion 90-6 (Reconsideration).  PAO 90-6 (Reconsideration) addresses the duties of a lawyer whose criminal defense client is proceeding under a false name.  Among other conclusions, PAO 90-6 (Reconsideration) states that a lawyer who learns of the false identity after undertaking the representation must attempt to persuade the client to disclose that the client is proceeding under a false name and, if that fails, must make disclosure to the court.    Some interested Florida Bar members, including representatives of the Bar's Criminal Law Section and the Florida Association of Criminal Defense Lawyers, filed comments regarding PAO 90-6 (Reconsideration).  Those persons who filed comments now have 30 days in which to request review by the Bar's Board of Governors.  (See Florida Bar Procedures for Ruling on Questions of Ethics.)  

Florida Bar asks Florida Supreme Court to amend rules governing lawyers' websites to permit testimonials, past results, and characterizations of quality (if accompanied by disclaimer).  [Added 2/27/08]    On February 26, 2008, the Florida Bar filed a petition asking the Florida Supreme Court to approve changes to current Rule 4-7.6, Florida Rules of Professional Conduct, which governs lawyer and law firm websites.  One of the more significant changes proposed would permit the interior pages of lawyers' websites to include truthful testimonials, past results obtained by the lawyers, and statements characterizing the quality of the lawyers' services – provided that these statements are factually verifiable and accompanied by appropriate disclaimers.Proposed changes to current Rule 4-7.6 include:Homepages of lawyers' websites would be subject to the requirements of Rule 4-7.2 (the general lawyer advertising rule);A lawyer's website would not be required to disclose all jurisdictions in which the lawyer is licensed to practice;Interior pages of lawyers' websites would be subject to Rule 4-7.2, except that lawyers could include truthful and factually verifiable testimonials, information about past results obtained, and descriptions or characterizations of the quality of the lawyers' services, provided that these items are accompanied by appropriate disclaimers;Email messages to prospective clients would continue to be governed by Rule 4-7.4 and would have to contain a subject line that begins with the words "LEGAL ADVERTISEMENT;"If not addressed by other portions of Rule 4-7.6, all unsolicited computer-accessed communications concerning lawyers or their services (e.g., banner ads, pop-up ads) would be subject to Rule 4-7.2; andLawyers' websites would not be required to be filed with the Bar for review.    To view the Bar's petition, the complete text of the proposed changes, and other accompanying materials please visit the "Rules Update" page of the Bar's website.    Interested Florida Bar members may file comments regarding the proposals with the Florida Supreme Court within 30 days of February 26, 2008.  Florida Supreme Court amends Rules Regulating The Florida Bar, including adoption of rule governing lawyer-client contract provisions regarding arbitration of fee disputes.  [Added 12/24/07]    Responding to a rules petition filed by the Florida Bar, the Florida Supreme Court amended a number of the Rules Regulating The Florida Bar.    The only amendment to the Rules of Professional Conduct (Chapter 4, Rules Regulating The Florida Bar) was the addition of new Rule 4-1.5(i), titled "Arbitration Clauses."  This rule authorizes a lawyer to include a clause in a lawyer-client fee agreement specifying that any fee dispute will be decided through arbitration, provided (1)  the lawyer advises the prospective client in writing to consider obtaining independent legal advice regarding the advisability of signing the agreement with the arbitration clause and (2) the agreement contains certain required cautionary language in bold print.    The other rule change proposals addressed by the Court included a variety of subjects.  One proposed change that was rejected by the Court (at least for the time being) was a proposal to revise the procedural process for amending the Bar rules.  The proposal would have added a Court "conference and dialogue" process as an option to the current "case and controversy" process.  The Court noted that "[t]he proposal raises several issues that must be studied before implementing such a procedure.  Therefore, the Court does not adopt the proposal at this time.  Because the proposal presents significant unaddressed issues, the Court requests that the Bar undertake and submit a study addressing how, in states where the high courts have procedural rule or Bar rulemaking authority, those courts process their rule amendments.  The report should also address the issue of ex parte communication with regard to communications among the Justices, proponents, and commentators."  The Bar was directed to work with the Court's Rules of Judicial Administration Committee in preparing the report.    Other rule changes approved by the Court concerned:  the work that disbarred or suspended lawyers may perform for licensed lawyers during the period of suspension or disbarment;the roles of designated reviewers in the Bar's grievance system;assessment of a $1250 "administrative fee" against lawyers who are found guilty of minor misconduct;time limitations barring prosecution of grievance complaints;a new name for the Bar's "Out-of-State Division" (formerly known as the "Out-of-State Practitioners Division;"new board certifications in "State and Federal Government and Administrative Practice" and "Intellectual Property" law;use of the terms "paralegal" and "legal assistant;"delinquency suspension of lawyers who do not timely pay arbitration awards issued pursuant to the procedures in Chapter 14, Rules Regulating The Florida Bar; andresidency regulations and jurisdictional disclosure requirements for Authorized House Counsel pursuant to Chapter 17, Rules Regulating The Florida Bar.    The rule amendments are effective on March 1, 2008.  In re: Amendments to the Rules Regulating The Florida Bar, 978 So.2d 91 (Fla. 2007).  Florida Supreme Court issues revised opinion concerning lawyer advertising rule changes originally adopted in January 2007, and denies Bar's motion for reconsideration.  [Added 12/24/07]    The Florida Supreme Court issued a revised opinion regarding the lawyer advertising rule changes that were originally adopted by the Court effective January 1, 2007 (click here for a copy of the Court's original opinion).  (A sunEthics.com summary of those rule changes appears on the "Rules and Opinions" page of the sunEthics.com "News Archive" section and can also be accessed by clicking here.)    The Florida Bar had filed a Motion for Reconsideration in this matter.  The Bar sought clarification as to the effect of several aspects of the Court's original opinion.  Among other things, in light of the rules as amended by the Court the Bar has asked the Court:  whether lawyers' websites are considered "information on request" and therefore are not subject to the advertising rules; whether lawyers' unsolicited email messages to prospective clients are subject to essentially the same regulations that govern direct mail advertising; whether lawyers must file communications sent to other lawyers, current clients, and former clients; whether the general lawyer advertising rules apply to communications made by lawyers at prospective clients' request.    The Court denied the Bar's Motion for Reconsideration but issued the revised opinion, which contained 2 key features.  First, the Court granted the Bar's request to retain existing subdivision (d) of Rule 4-7.8.  "[T]he Bar proposed amendments to rule 4-7.8 (Exemptions From the Filing and Review Requirement), which would have included deletion of existing subdivision (d) (a communication mailed only to existing clients, former clients, or other lawyers is exempt from the filing requirements of rule 4-7.7).  However, the Bar subsequently filed a motion requesting that the Court retain subdivision (d) in the rules, while the Bar studied issues raised by related rule 4-7.1 (General).  Thus, in light of related rule 4-7.1, we modify the proposal to maintain existing subdivision (d) in rule 4-7.8."    Second, the revised opinion contained a lengthy opinion by Chief Justice Lewis in which he concurred and dissented.  He vigorously dissented from the Court's decision to amend Rule 4-7.2 to permit board certified lawyers to refer to themselves in advertising as "experts."  He observed:  "First, under the commercial-speech doctrine, this Court remains free to restrain deceptive or misleading attorney advertising.  Second, 'specialist' and 'expert' are not synonymous; in fact, they are qualitatively different.  Furthermore, claims of 'expert' status are inherently misleading.  Third, the 'expert' amendments have 'flown under the radar' and have not been adequately or appropriately debated or briefed.  Fourth and finally, my view is consistent with both the majority approach across the country, and with Florida’s regulation of another group of certified specialists – board-certified physicians."    The Court's opinion stated that "[t]he amendments shall become effective on February 1, 2008, at 12:01 a.m."  In re: Amendments to Rules Regulating The Florida Bar -- Advertising Rules, 971 So.2d 763 (Fla. 2007) (revised opinion).  

Florida Supreme Court removes requirement that circuit court mediators be members of the Florida Bar.  [Added 11/19/07]  --  In re: Petition of the Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, 969 So.2d 1003 (Fla. 2007).  

Florida Supreme Court approves voluntary "Florida Registered Paralegal Program."  [Added 11/16/07]  --  In re: Amendments to the Rules Regulating The Florida Bar -- Florida Registered Paralegal Program, 969 So.2d 360 (Fla. 2007). 

Florida Ethics Opinion 07-1, addressing lawyer's ethical obligations regarding documents that lawyer's client obtained wrongfully, is now final.  [Added 10/29/07]  --  Florida Ethics Opinion 07-1. 

Florida Supreme Court amends rules governing Law School Practice Program (Chapter 11, Rules Regulating The Florida Bar).  [Added 7/6/07]  --  In re: Amendments to Rules Regulating The Florida Bar re; Chapter 11 Task Force, 964 So.2d 690 (Fla. 2007). 

Florida Supreme Court holds that Rule 4-5.6(b) is constitutional and imposes fee forfeiture and stiff discipline on 2 lawyers who entered undisclosed engagement agreement with clients' adversary.  [Added 5/8/07]  --  Florida Bar v. Rodriguez, 959 So.2d 150 (Fla. 2007); .Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007). 

New Rule of Criminal Procedure 3.851(i) addresses death-sentenced prisoners' dismissal of postconviction proceedings and discharge of counsel.  [Added 12/13/06]  --  Effective 1/12007.  In re: Amendments to Florida Rules of Criminal Procedure 3.851 and 3.590, 945 So.2d 1124 (Fla. 2006). 

FLORIDA SUPREME COURT AMENDS LAWYER ADVERTISING RULES EFFECTIVE 1/1/2007; PRE-SCREENING OF TV AND RADIO ADS NOW REQUIRED  [Added 11/3/06]    PLEASE NOTE this IMPORTANT UPDATE:  On November 17, 2006, the Florida Bar filed with the Florida Supreme Court a Motion for Reconsideration in this matter.  Essentially, the Bar seeks clarification as to the effect of several of the Court's decisions.  Among other things, in light of the rules as amended by the Court the Bar has asked the Court:  whether lawyers' websites are considered "information on request" and therefore are not subject to the advertising rules; whether lawyers' unsolicited email messages to prospective clients are subject to essentially the same regulations that govern direct mail advertising; whether lawyers must file communications sent to other lawyers, current clients, and former clients; whether the general lawyer advertising rules apply to communications made by lawyers at prospective clients' request.  On December 20, 2008, the Court denied the Bar's Motion for Reconsideration but issued a revised opinion.  In re: Amendments to Rules Regulating The Florida Bar -- Advertising Rules, ___ So.2d ___ (Fla., SC05-2194, 12/20/2007) (revised opinion).    The Florida Supreme Court has acted on the Florida Bar's petition to amend the lawyer advertising rules in a number of respects.  The amendments become effective on January 1, 2007.    Among the changes requested by the Bar and approved by the Court are the following:   television and radio ads must be pre-filed with the Bar at least 15 days before airing (new Rule 4-7.7(a)(1)(A));out-of-state lawyers who practice in Florida are expressly subject to Florida's advertising rules (new Rule 4-7.1(c));a Florida lawyer's communications to the lawyer's family members are exempt from the advertising rules (new Rule 4-7.1(e));communications by a Florida lawyer to prospective clients that are made at a prospective client's request are exempt from the advertising rules (new Rule 4-7.1(f));the ban on statements "likely to create an unjustified expectation about results the lawyer can achieve" has been replaced by a prohibition on communications that "promise[] results" (new Rule 4-7.2(c)(1)(G));visuals that are likely to "confuse" a viewer are prohibited (new Rule 4-7.2(c)(3));every ad for a lawyer referral service must affirmatively disclose that fact (new Rule 4-7.10(1)(10));the types of information that may be included in "public services announcements" (which are exempt from the filing-and-review requirement) has been substantially expanded (new Rule 4-7.8(b) and new Rule 4-7.2(b)(3));the "hiring" disclosure statement previously required in print advertising is no longer required;the rule against "unfair" advertising has been deleted; andadvisory advertising opinions rendered by the Bar finding an ad in compliance are binding on the Bar (rather than merely advisory) in grievance proceedings (new Rule 4-7.7(a)(1)(F), new Rule 4-7.7(a)(2)(F)).    As discussed below, the Court declined to adopt several of the Bar's proposals:   The Bar had proposed several changes to the rule governing computer-accessed communications, which include lawyers' websites.  The Court declined to adopt these proposals, stating:  "[T]he Court notes that the [Bar's] Board [of Governors] has appointed a special committee to review issues regarding websites and Internet communications.  The special committee is charged with making recommendations to the Board if appropriate.  Thus, it is not efficient or sound for the Court to address the regulation of Internet advertising at this time, while the special committee is studying these very issues.  Accordingly, the Court does not adopt the [proposed rule changes].  The Court will consider the regulation of Internet communications when the Bar files the report of the special committee."The Bar proposed that communications directed to other lawyers, and communications directed to a lawyer's current or former clients, be exempt from the advertising rules.  In declining to adopt these proposals, the Court stated:  "We request further information from the Bar as to why communications between lawyers, and communications with current and former clients, should be exempted from the advertising rules, including any research or evidence supporting such exemptions.  We defer adoption of those two exemptions at this time."  (The Court also declined to adopt the Bar's proposed definition of "prior professional relationship" contained in the comment to the proposed rule that would have stated that the advertising rules did not apply to certain "prior professional relationships.")The Bar requested elimination of the requirement that a disclosure be made when a non-lawyer spokesperson is used in a television or radio ad in ads in which it would be apparent from the context of the ad that the person was not a lawyer.  The Court rejected this proposal, stating:  "In comparison to the proposal, the established requirements are consistently unambiguous in any advertising situation, simple to apply, and, thus, provide greater protection for the public.  Therefore, the Court does not adopt the proposal."    Finally, and perhaps quite significantly, the Court concluded by requesting "that the Bar undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising."    For a rule-by-rule summary prepared by Florida Bar Ethics Counsel Elizabeth Clark Tarbert, click here.    As noted above, these amendments become effective on January 1, 2007.  In re: Amendments to the Rules Regulating The Florida Bar -- Advertising, ___ So.2d ___, 31 Fla.L.Weekly S767 (Fla., No. SC05-2194, 11/2/2006).  NOTE:  See revised opinion, 12/20/2007. 

Florida Bar Professional Ethics Committee finalizes "metadata" opinion (06-2).  [Added 11/1/06]  --      Florida Ethics Opinion 06-2 of the Florida Bar Professional Ethics Committee, concerning the ethical obligations of lawyers who send and receive electronic documents containing "metadata," is now final following the committee's September 15, 2006, meeting.  "Metadata" is defined in the Opinion as "information describing the history, tracking, or management of an electronic document."  This information is in the electronic document itself and "can contain information about the author of a document, and can show, among other things, the changes made to a document during its drafting, including what was deleted from or added to the final version of the document, as well as comments of the various reviewers of the document."  The primary ethical concern relates to confidentiality under Florida Rule of Professional Conduct 4-1.6.  In order to fulfill this duty of confidentiality regarding metadata, Opinion 06-2 concludes that lawyers have certain ethical obligations.    The sending lawyer must "take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications."    The receiving lawyer must "not to try to obtain from metadata information relating to the representation of the sender’s client where the recipient knows or should know that the information is not intended for the recipient.  Any such metadata is to be considered by the receiving lawyer as confidential information which the sending lawyer did not intend to transmit.  See, Ethics Opinion 93-3 and Rule 4-4.4(b), Florida Rules of Professional Conduct." 

Florida Supreme Court approves rule permitting waiver of client's rights under constitutional amendment regarding attorney's fees in medical malpractice cases.  [Added 9/28/06]  --      The Florida Supreme Court revised the Florida Rules of Professional Conduct (specifically, Rule 4-1.5(f)(4)(B)) by adopting a rule permitting clients in medical malpractice cases to waive the rights granted to them under Article I, Section 26 of the Florida Constitution.  Article I, Section 26 was added to the constitution in 2004 when voters approved an amendment entitled the "Medical Malpractice Claimant's Compensation Amendment," which provided that in medical malpractice cases being handled by a lawyer on a contingent fee basis the client "is entitled to no less than 70% of the first $250,000.00 in all damages received by the claimant, and 90% of damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants."    The Court adopted (with modifications) the proposed rule offered by the Florida Bar, electing to reject a proposal presented by former Chief Justice Stephen Grimes and other bar members.  The Court was of the view that the rights provided by Article I, Section 26 could be waived by an affected client.  The Court, however, declined to require judicial review of the waiver in every waiver.  The Court stated that "[t]he waiver form not only is extremely detailed but, importantly, sets forth the actual language of article I, section 26 and requires the client to specifically acknowledge that he or she (1) has been advised that signing the waiver releases an important constitutional right; (2) has been advised of the opportunity to consult with separate and independent counsel and to have the waiver explained or reviewed by a court; (3) agrees to an increase in the attorney fee that would otherwise be owed if the constitutional provision were not waived; (4) has three business days in which to cancel the waiver; (5) wishes to engage the named lawyer or law firm, but is unable to do so because of the constitutional limitation and therefore knowingly and voluntarily waives the constitutional limitation in consideration of the lawyer or law firm’s agreement to represent him or her; and (6) has selected the named lawyer or law firm as counsel of choice, could not otherwise engage their services without the waiver, and specifically states that the waiver is knowingly and voluntarily made" (footnote omitted).    The Court described its modification of the form proposed by the Bar as follows:  "[W]e modify the form to require the client to acknowledge not only that he or she is agreeing to an increased fee, but also to specifically acknowledge the maximum contingency fee percentages currently set forth in rule 4-1.5(f)(4)(B)(i), up to which the lawyer and client may agree, without prior court approval, if the waiver is executed.  Under the rule as adopted, judicial approval is mandatory only where a client waives his or her rights under article I, section 26 and agrees to a contingent fee in excess of the maximum contingency fee percentages set forth in rule 4-1.5(f)(4)(B)(i).  In such a case, court approval under the process set forth in [existing] rule 4-1.5(f)(4)(B)(ii) is necessary" (emphasis in original).    Two justices dissented "from the rule's failure to provide for judicial review of the client's waiver."    The amendments to Rule 4-1.5(f)(4)(B) as approved by the Court is effective immediately (September 28, 2006).  In re: Amendment to the Rules Regulating The Florida Bar -- Rule 4-1.5(f)(4)(B) of the Rules of Professional Conduct, 939 So.2d 1032 (Fla. 2006). 

Florida Bar members must self-report to Bar all determinations or judgments of guilt for any criminal offense entered after 8/1/2006.  [Added 6/30/06]  --  In re: Amendments to the Rules Regulating The Florida Bar -- Rules 3-5.2 and 3-7.2, 933 So.2d 498 (Fla. 2006). 

Florida Bar Ethics Committee approves opinion on electronic storage of lawyers' files.  [Added 6/26/06]  --      At its meeting on January 23, 2006, the Florida Bar Professional Ethics Committee approved Florida Ethics Opinion 06-1, concerning the issue of electronic storage of lawyers' files.  Opinion 06-1 notes that the Rules Regulating The Florida Bar generally do not specify the method by which records must be maintained.  (An exception is Rule 5-1.2(b)(3), which requires that lawyers retain original cancelled trust account checks unless the financial institution provides only copies.)  Rather, "the main consideration in file storage is that the appropriate documents be maintained, not necessarily the method by which they are stored.  Therefore, a law firm may store files electronically unless:  a statute or rule requires retention of an original document, the original document is the property of the client, or destruction of a paper document adversely affects the client’s interests."  The committee noted that its conclusion was consistent with ethics opinions "too numerous to cite" from other jurisdictions.  Opinion 06-1 not only permits but "encourages the use of technology, such as electronic file storage, to facilitate cost-effective and efficient records management."  Although electronic file storage is permitted, the opinion concludes that it is not required.  

Florida Bar Professional Ethics Committee withdraws Opinion 90-7 (conflicts arising from lawyer-client business dealings).  [Added 4/20/06]. 

SUPREME COURT AMENDS RULES OF PROFESSIONAL CONDUCT IN RESPONSE TO BAR'S "ETHICS 2000" PETITION; AMENDMENTS EFFECTIVE MAY 22, 2006  [Added 3/23/06]    The Florida Supreme Court amended a number of the Florida Rules of Professional Conduct in response to a petition filed by the Florida Bar.  The Bar's petition resulted from recommendations made by a special study committee appointed to review the "Ethics 2000" changes to the ABA Model Rules of Professional Conduct that were adopted by the ABA House of Delegates in August  2002.  The proposals of the committee, as approved by the Bar's Board of Governors, were filed with the Supreme Court in December 2004.    The Court adopted most of the Bar's proposals, but revised several and declined to adopt a few.  The changes take effect on May 22, 2006.  In re: Amendment to the Rules Regulating The Florida Bar, 933 So.2d 417 (Fla. 2006).  A summary of significant changes appears below.SUMMARY OF SIGNIFICANT RULE CHANGES    GENERALLYPreamble.  Although the Rules of Professional Conduct do not establish lawyers' standards of conduct for purposes of imposing civil liability (e.g., legal malpractice), the last sentence of the "Scope" portion of the Preamble now recognizes that violations of the Rules "may be evidence of a breach of the applicable standard of conduct."  (This is consistent with Florida law.  See generally  Pressley v. Farley, 579 So.2d 160 (Fla. 1st DCA 1991); Oberson Investments, N.V. v. Angel, Cohen & Rogovin, 492 So.2d 1113, 1114 n.2 (Fla. 3rd DCA 1986), quashed on other grounds 512 So.2d 192 (Fla. 1987); Gomez v. Hawkins Concrete Construction Co., 623 F.Supp. 194 (N.D. Fla. 1985).)Terminology.  Definitions of key new terms are added, including "confirmed in writing," "informed consent," and "screened."  Additionally, substantial explanation of "screened" is provided in a Comment to the Rule.  The definition of "writing" includes e-mail."Informed consent."  The concept of "informed consent" replaces the former standard of "consent after consultation."  See Rules 4-1.2, 4-1.4, 4-1.6, 4-1.7, 4-1.8, 4-1.9, 4-1.10, 4-1.11, 4-1.12, 4-1.17, 4-1.18, 4-2.3, and 4-3.7.Most conflict waivers must be "confirmed in writing" or "stated on the record at a hearing."  In most situations requiring a client's consent to waive a conflict of interest, the rules now require that the consent be "confirmed in writing."  Alternatively, the Supreme Court on its own motion added the alternative of having the consent "stated on the record at a hearing."  See Rules 4-1.7 (conflicts involving current clients), 4-1.11 (conflicts involving government employees), 4-1.12 (conflicts involving former judges, law clerks, and third-party neutrals), and 4-1.18 (conflicts involving prospective clients).  The client, however, need not sign the writing unless the rule so specifies.  See, e.g., Rules 4-1.8(a) (business transactions with clients), 4-1.8(g) (aggregate settlements).  Note that a conflict waiver from a former client does not need to be confirmed in writing.  Rule 4-1.9. PROPOSED RULE CHANGES THAT THE COURT DID NOT ADOPTProsecutor ethics rules.  The Court declined to adopt proposed changes to Rule 4-3.8, "Special Responsibilities of a Prosecutor."  One proposed change would have required prosecutors in criminal cases to "make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel."  The Court stated that "the Florida Rules of Criminal Procedure already invest in other persons or entities the obligations" contained in the proposed rule.  The Court stated that any changes to prosecutors' duties in this area should be part of the criminal procedure rules rather than the lawyer ethics code.  The Court also declined to adopt a proposed amendment that would have restricted a prosecutor from subpoenaing a lawyer in a grand jury or other criminal proceeding to present evidence about the lawyer's current or former client.  The Court directed the Bar "to further study this proposal, including the differences between the Bar's proposal and the ABA model rule."Candor toward the tribunal.  The Court declined to adopt proposed changes to Rule 4-3.3, "Candor Toward the Tribunal."  The Court's decision was "[d]ue to possible contradictions in the proposed amendments."  The Court did not elaborate, but directed the Bar to further study the proposal.Trial publicity.  The Court declined to adopt proposed changes to Rule 4-3.6, "Trial Publicity."  The Court did not offer a reason for its decision.Clients under a disability.  Several entities filed comments suggesting changes to Rule 4-1.14, "Client Under a Disability."  The Court did not address these proposals, however, because the Florida Bar had not proposed amendments to that Rule.Pro bono obligations.  Several entities filed comments suggesting changes to Rule 4-6.1, "Pro Bono Public Service," and Rule 4-6.5, "Voluntary Pro Bono Plan."  The Court did not address these proposals, however, because the Florida Bar had not proposed amendments to those Rules.Court directs Florida Bar directed to further study several issues.  As described more fully above, the Court directed the Bar to further study proposals to amend Rule 4-3.3 (lawyers' duties of candor toward the tribunal) and Rule 4-3.8 (ethical duties of prosecutors). SPECIFIC RULE CHANGES ADOPTED BY THE COURTContingent fees in domestic relations matters, Comment to Rule 4-1.5.  The Comment to the Rule now clarifies that the prohibition on contingent fees in domestic relations matters "does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony, or other financial orders."  This accords with prior interpretation by the Professional Ethics Committee (see Florida Ethics Opinion 89-2).General conflict of interest rule concerning current clients, Rule 4-1.7.  This format of this rule has been substantially changed.  Subdivision (a) now states the basic conflict prohibition (lawyer shall not represent a client if representation of one client will be directly adverse to another client OR if lawyer reasonably believes there is a substantial risk that representation of one or more clients will be materially limited by lawyer's responsibilities to other another client, former client or third person, or by personal interest of the lawyer), and subdivision (b) contains the 4 exceptions in which a representation may be undertaken notwithstanding an actual or potential conflict ((1) lawyer reasonably believes lawyer will be able to provide competent and diligent representation to each affected client, (2) representation is not prohibited by law, (3) representation does not involve assertion of position adverse to another client when lawyer represents both clients in same proceeding before a tribunal, and (4) each affected client gives informed consent, confirmed in writing or clearly stated on record at hearing).Conflict of interest rule concerning specific transactions, Rule 4-1.8.  Subdivision (c) has been amended to broaden the prohibition against soliciting substantial gifts from clients.  The Rule previously barred the lawyer from preparing an instrument effecting such a gift, while the Rule now extends this prohibition to any solicitation of a substantial gift.  New subdivision (k) specifies that all of the conflicts in Rule 1.8, except one, are imputed to all lawyers within the conflicted lawyer's firm.  The lone exception is the sexual relationship conflict, expressed in subdivision (i).Conflict of interest rule concerning former clients, Rule 4-1.9.  The Comment to Rule 4-1.9 has been expanded in several areas.  The Comment now provides additional definition concerning the meaning of a "substantially related matter."  The definition of "generally known" information has been moved from the Rule to the Comment and now clarifies summarizes the concern in a "but-for" test:  "The essential question is whether, but for having represented the former client, the lawyer would know or discover the information."Conflicts of interest imputed among private firm lawyers, Rule 4-1.10.  Two changes, one to the Rule and the other to the Comment, are noteworthy:     --  Many "personal interest" conflicts of a lawyer may no longer be imputed to other lawyers within the same firm.  In order for this provision limiting imputation of purely "personal interest" conflicts to apply, the conflict must be "based on a personal interest of the prohibited lawyer" and "not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm."  When these criteria are met, no screening of the personally conflicted lawyer is necessary.  (The example given in the Comment to the Rule is:  "Where 1 lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified.")     --  Conflicts of NON-lawyers in a firm no longer are automatically imputed to the firm's lawyers.  The Comment to the Rule allows these non-lawyers (e.g., paralegals, legal secretaries) to be screened off from the matter in order to prevent imputation of the conflict to the rest of the firm.Conflicts of interest involving former and current government lawyers, Rule 4-1.11.  The Rule now explicitly states what many understood to always be the case -- former government lawyers are personally subject to the conflict rules concerning use of confidential information about a former client (Rule 4-1.9(b)).  Additionally, the Rule has defined the term "confidential government information" used in Rule 4-1.11 to mean "information that has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public."Conflicts of interest involving former "third-party neutrals," Rule 4-1.12.  For the first time, a conflict rule is directed specifically to former arbitrators, mediators, "or other third-party neutrals."  The rules are the same as those that have long governed former judges and judicial law clerks.  (The Comment to the Rule notes, however, that lawyers who are certified mediators "are governed by the applicable law and rules relating to certified mediators.")  The term "third-party neutral" is defined in new Rule 4-2.4, which more specifically delineates the duties of lawyers serving in such a role.Withdrawing from representation, Rule 4-1.16.  The Rule now contains 2 more situations in which a lawyer must decline or terminate representation of a client.  These are:  where "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent, unless the client agrees to disclose and rectify the crime or fraud;" and where "the client has used the lawyer's services to perpetrate a crime or fraud, unless the client agrees to disclose and rectify the crime or fraud."  In addition, the Rule now specifies that a lawyer may decline or terminate representation when the client insists upon taking action "with which the lawyer has a fundamental disagreement."Sale of law practice, Rule 4-1.17.  Previously lawyer who were selling their practices were required to sell the entire practice to a single purchaser.  Those restrictions have been lifted.  Now, a lawyer have the option of selling the entire practice or "an area of practice" to one or more purchasing lawyers or law firms authorized to practice law in Florida.Duties to prospective clients, Rule 4-1.18.  For the first time, a Rule specifically addresses a lawyer's duties to prospective clients.  A prospective client is defined as a "person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client."  Among the key elements of the new rule are:     --  Discussions with prospective clients are confidential even if no lawyer-client relationship results, "except as rule 4-1.9 would permit with respect to information of a former client."     --  A lawyer who obtains confidential information from a prospective client may not represent another client against the prospective client "in the same or a substantially related matter" if the confidential information could "be used to the disadvantage of" the prospective client in that matter.  Significantly, however, this disqualification does not extend to all other lawyers in the firm if the affected lawyer "took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client" and is screened off from any participation in the matter.  Written notice of the screening must be given to the prospective client.The Bar had proposed that this type of screening mechanism not be permitted, but the Court agreed with the Business Law Section of the Bar that screening should be allowed, as it is under ABA Model Rule 1.18.Duties of lawyers serving as "third-party neutrals," Rule 4-2.4.  This new rule provides that a lawyer is serving as a "third-party neutral" when the lawyer assists 2 or more non-clients to reach a resolution of a dispute between them.  This service may include acting "as an arbitrator, a mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve the matter."  A lawyer serving as a third-party neutral "shall inform unrepresented parties that the lawyer is not representing them."  Additionally, when the lawyer "knows or reasonably should know that a party does not understand the lawyer's role in the matter," the lawyer must "explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client."  (The Comment to the Rule notes that lawyers who are certified mediators "are governed by the applicable law and rules relating to certified mediators.")Communicating with persons represented by other lawyers, Rule 4-4.2.  The text of this Rule has not been changed.  There are several significant changes to the Comment:     --  The Comment now clarifies that the Rule "applies to communications with any person who is represented by counsel concerning the matter to which the communication relates" and applies "even though the represented person initiates or consents to the communication."     --  The revised Comment restates the test for communications with current employees of a represented organization:  "In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability."     --  The Comment now specifies that consent of an organization's lawyer is not required for communication with a former employee of the organization.  (This is consistent with Florida Ethics Opinion 88-14.)Dealing with unrepresented persons, Rule 4-4.3.  The Rule now specifically prohibits a lawyer from giving "legal advice to an unrepresented person, other than the advice to secure counsel."Dealing with third persons, Rule 4-4.4.  A new provision in the Rule requires that a lawyer who "receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender."Checking for conflicts, Rule 4-5.1.  The Comment to this Rule now states that the duty of lawyers with managerial authority in a firm to ensure compliance with the Rules of Professional Conduct includes an obligation to establish policies and procedures "designed to detect and resolve conflicts of interest."Sharing fees with nonlawyers, Rule 4-5.4.  Another exception has been added to the prohibition against sharing legal fees with nonlawyers to specify that "a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter."Duty to report misconduct of other lawyers or judges, Rule 4-8.3.  The Rule expands the exception to the duty to report misconduct of other lawyers or judges.  A lawyer who learns of the misconduct "while participating in an approved lawyers assistance program" is not obligated to report the misconduct (unless the participation is required as part of a disciplinary sanction).  The objective is to make it more appealing for lawyers who need help to seek treatment through a lawyers assistance program. 

VARIOUS NEW FLORIDA RULES TOOK EFFECT JANUARY 1, 2006  [Added 1/1/06]    A number of new or revised Florida rules became effective on January 1, 2006.  Information concerning these changes can be accessed below.    RULES REGULATING THE FLORIDA BAR (VARIOUS)    On October 6, 2005, The Florida Supreme Court rendered its opinion in response the the Florida Bar's annual petition presenting proposed amendments to the Rules Regulating The Florida Bar (which had been filed in February 2005).  In addition to raising the filing fee that lawyers must pay to have their advertisements reviewed by the Florida Bar, the Court amended rules concerning various aspects of attorney's fees, the permissible type and extent of contact that a lawyer who leaves a law firm may have with firm clients, bonus payments to nonlawyer employees of a law firm, regulation of the conduct of bar admission applicants, jury argument, criminal investigative work by lawyers, inventory attorneys, and UPL regulation.    The amendments take effect at 12:01 am on January 1, 2006.  A sunEthics.com summary of the changes appears below.Advertising review fee.  Amended Rule 4-7.7(b)(5) raises from $100 to $150 the fee that a Florida Bar member must pay to have an advertisement reviewed by the Bar.Contact with firm clients by lawyers who leave a law firm.  New Rule 4-5.8 establishes specific regulations governing the communications that a lawyer who leaves a law firm may have with law firm clients.  Rule 4-5.8 also addresses communication to firm clients in the event of a law firm's dissolution.    Subdivision (c)(1) of Rule 4-5.8 provides that, "[a]bsent a specific agreement otherwise, a lawyer who is leaving a law firm shall not unilaterally contact those clients for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless the lawyer has approached an authorized representative of the law firm and attempted to negotiate a joint communication to the clients concerning the lawyer leaving the law firm and bona fide negotiations have been unsuccessful."  A similar approach for lawyers in dissolving firms is contained in subdivision (c)(2).    Subdivision (d) the rule prescribes the content of a lawyer’s communication to clients when a joint notice cannot be agreed upon after a bona fide attempt.  In that situation, any communication to clients should give notice of the departure or dissolution and "provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms."    Subdivision (e) establishes the default rule for clients who do not respond to the notice.  In the case of a lawyer leaving a law firm, the nonresponsive client "shall be considered as remaining a client of the firm until the client advises otherwise."  In the case of a law firm dissolution, "the client shall be considered as remaining a client of the lawyer who primarily provided the prior legal services on behalf of the firm until the client advises otherwise."    It should be noted that subdivision (a) of the rule provides that the "contract for legal services," rather than the rule, "creates the legal relationships between the client and law firm and between the client and individual members of the law firm, including ownership of the files maintained by the lawyer or law firm" and that "[n]othing in these rules creates or defines those relationships."Attorney's fees:  court approval of contingent fees in excess of cap.  Amended Rule 4-1.5(f)(4)(B)(ii) appears to be intended to make it more difficult for a lawyer who represents, or wishes to represent, a client in a personal injury-type matter to obtain court approval of a contingent fee above the rule's specified cap.  More than "mere agreement between the client and lawyer" will be needed; "[a]s a general rule an upward departure from the presumed reasonable fee is not appropriate."  The lawyer's petition to the court must present "sufficient facts" to permit the court to conclude that a higher fee is warranted.  These facts can include "what efforts the client undertook to obtain counsel who is willing to perform the representation for a fee that meets the" presumed reasonable fee set forth in the rule.Attorney's fees:  effect of non-compliance with ethics rules in fee-shifting litigation.  Amended Rule 4-1.5(e) specifies that non-compliance with the Rules of Professional Conduct concerning attorney's fees may not be used by the opposing side in an attempt to defeat a claim for attorney's fees under a fee-shifting statute.  The new provision states:  "The fact that a contract may not be in accord with these rules is an issue between the attorney and client and a matter of professional ethics, but is not the proper basis for an action or defense by an opposing party when fee-shifting litigation is involved."Bonus payments to a lawyer's nonlawyer employees.  Amended Rule 4-5.4(a)(4) has been reworded to emphasize that lawyers may pay bonuses to nonlawyer employees only for "work performed" and not for bringing in cases or clients.Discipline for misconduct prior to bar admission.  New Rule 4-8.1(c) specifies that lawyers are subject to discipline for acts that committed while an applicant for admission to the Bar, but not discovered until after admission, where such acts "adversely reflect[] on the applicant's fitness to practice law."Criminal investigative work by lawyers.  Amended Rule 4-8.4(c) recognizes that lawyers in criminal law enforcement agencies are authorized to engage in, or supervise others who engage in, undercover investigation even though the conduct may involve deception.Comments in trial on a witness's credibility.  In response to the Supreme Court's opinion in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000), amended Rule 4-3.4(e) will permit lawyers to offer personal opinions on a witness's credibility if "authorized by current rule or case law."Inventory attorney designation.  Each bar member practicing in Florida is now required to name another Florida lawyer to serve as "inventory attorney" to help protect clients in the event of the bar member's death, incapacity, or other interruption of his or her practice.  New Rule 1-3.8(e) provides:  "Each member of the bar who practices law in Florida shall designate another member of The Florida Bar who has agreed to serve as inventory attorney under this rule. When the services of an inventory attorney become necessary, an authorized representative of The Florida Bar shall contact the designated member and determine the member’s current willingness to serve.  The designated member shall not be under any obligation to serve as inventory attorney."Unlicensed practice of law regulation.  Amended Rule 10-2.1(a) clarifies that nonlawyers may assist others in completing only Florida Supreme Court-approved forms, and adds a requirement that the written disclosure of the nonlawyer's limitations be signed by both the nonlawyer and the person being assisted and kept by the nonlawyer for 6 years.    The Court's opinion, including the full text of the amended rules, is at:  In re: Amendments to the Rules Regulating The Florida Bar, 916 So.2d 655 (Fla. 2005). RULES REGULATING THE FLORIDA BAR (VARIOUS) (ETHICS, JUDICIAL ADMINISTRATION)    Responding to a petition from the Florida Bar, the Supreme Court of Florida adopted rule changes making it easier for lawyers from other jurisdictions to provide legal services in Florida on a temporary basis -- the "multijurisdictional practice of law."  These amendments to the Rules Regulating The Florida Bar and the Florida Rules of Judicial Administration take effect on January 1, 2006.  The Court adopted the rule changes proposed by the Florida Bar Board of Governors as a result of the study given to multijurisdictional practice issues by 2 Florida Bar Special Commissions on the Multijurisdictional Practice of Law.  These studies were prompted by actions taken by the ABA Commission on Multijurisdictional Practice.    The Court's opinion states that the changes were adopted "due to changes in needs and in the practice of law" and that the Court's goal is "to implement changes that improve legal services for the public by permitting the limited, temporary multijurisdictional practice of law but at the same time protecting the public, the legal profession, and the judiciary."  The Court cautioned that the effects of these changes will be monitored, and directed the Florida Bar to report back within 2 years of the January 1, 2006, effective date with any recommendations for improvements or changes.    The Court divided its discussion of the new rules into 3 areas:  (1) multijurisdictional practice of law in Florida by non-Florida lawyers; (2) disciplinary control over such lawyers; and (3) pro hac vice admission of non-Florida lawyers.Multijurisdictional practice of law in Florida by non-Florida lawyers.  The Court's opinion noted that the current version of Rule 4-5.5 (titled "Unlicensed Practice of Law") and related case law, which severely restrict the ability of non-Florida lawyers to provide legal services in Florida or involving Florida law, "do[] not recognize the reality of modern legal practices."  The Court therefore amended Rule 4-5.5 to permit "temporary practice" in Florida by non-Florida lawyers.  The amended rule authorizes non-Florida lawyers to provide legal services in Florida in specified situations, which are summarized below.  A non-Florida lawyer, however, may not "except as authorized by other law, establish an office or other regular presence in Florida for the practice of law" or "hold out to the public or otherwise represent that [he or she] is admitted to practice law in Florida."  Amended Rule 4-5.5(b).    In short, amended Rule 4-5.5(c) provides that lawyers licensed in another U.S. jurisdiction, but not Florida, are authorized to provide legal services in Florida on a temporary basis by:  "(1) associating with a Florida Bar member who actively participates in the matter; (2) engaging in pre-pro hac vice admission activity; (3) rendering legal services in a pending or potential arbitration, mediation, or other alternative dispute resolution context; [and] (4) providing services not covered by the other provisions, based on specific nexus conditions."  Amended Rule 4-5.5(d) authorizes lawyers licensed in certain foreign countries (i.e., those having a "legal profession 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 public authority), but not Florida, to provide legal services in Florida on a temporary basis under conditions similar to the 4 applicable to non-Florida domestic lawyers, as well as in a fifth situation:  "providing services that are governed primarily by international law or the law of a non-U.S. jurisdiction in which the lawyer is a member."Disciplinary control over non-Florida lawyers providing legal services in Florida.  In order to protect the public interest, the Court amended several disciplinary procedure rules "to create a process for meaningful discipline of a lawyer" in both Florida and the jurisdiction(s) in which the lawyer is licensed to practice.  For example, amended Rule 3-4.1 provides that the Florida Supreme Court and its agencies have disciplinary jurisdiction over non-Florida lawyers who provide or offer to provide legal services in Florida.  Amended Rule 3-4.6 provides that a lawyer is subject to discipline in Florida regardless of where the lawyer's misconduct occursPro hac vice admission of non-Florida lawyers.  The Court amended Florida Rule of Judicial Administration 2.061 and Rules Regulating The Florida Bar concerning pro hac vice admission of non-Florida lawyers.  Amended Fla.R.Jud.Admin. 2.061 specifies that a non-Florida lawyer is presumed to be engaging in a "general practice" in Florida if he or she makes more than 3 appearances in a 365-day period in "separate representations."  The amended rule deletes language in the existing version of the rule "that authorized judicial discretion to permit more than three pro hac vice appearances in a 365-day period and to allow additional pro hac vice appearances in related litigation" (footnote omitted).  The Court stated that this change was due to "reports that non-Florida attorneys were abusing the current rule."    Additionally, the Court adopted new Rule 1-3.11, Rules Regulating The Florida Bar (entitled "Appearance by Non-Florida Lawyer in an Arbitration Proceeding in Florida"), which "sets forth procedures for an attorney licensed in another state or foreign country to represent a client in an arbitration proceeding in Florida on a temporary basis.  The appearance must be for a client who resides or has an office in the lawyer's home state, or is an appearance that arises out of, or is reasonably related to, the lawyer's practice in a jurisdiction in which the lawyer is admitted."  Although new Rule 1-3.11 does establish different procedures for standard arbitration and international arbitration, the Court explained that "the new rule is an attempt to balance the regulation of out-of-state practitioners, protection of the public, expansion of the multijurisdictional practice of law, and recognition of international business practices."  In re:  Amendments to the Rules Regulating The Florida Bar and the Florida Rules of Judicial Administration, 907 So.2d 1138 (Fla. 2005).    NOTE:  As a result of the "exigent circumstances" caused by Hurricane Katrina, the Florida Supreme Court ordered that the amendments to Rule 4-5.5 (as well as the amendments to Rules 3-2.1, 3-4.1, 3-4.6, and 3-7.2) become effective on September 14, 2005.     In re:  Amendments to the Rules Regulating the Florida Bar and the Rules of Judicial Administration (Fla., No. SC04-135, Emergency Order, 9/14/2005). CIVIL PROCEDURE    Ruling on the rules amendments proposed by the Florida Bar Civil Procedure Rules Committee on its 2-year cycle, the Florida Supreme Court has amended several of the Florida Rules of Civil Procedure including those relating to discovery sanctions, dismissals for failure to prosecute, and attorney's fees.  Some key changes are highlighted below.Motions for Discovery Sanctions.  Rule 1.380 was amended to require that a motion to comply with discovery requirement contain a certification by the moving lawyer stating that they have made a good-faith attempt to resolve the dispute with opposing counsel before filing the motion to compel.Dismissals for failure to prosecute.  Rule 1.420 was amended to provide "that after ten months of record inactivity, notice may be served on the parties by any interested person, the court, or the clerk of the court, indicating that no record activity has occurred.  Following proper service of the notice, the party has sixty days to conduct record activity in order to avoid dismissal.  After sixty days, if no record activity takes place, reasonable notice shall be provided to the parties and the action shall be dismissed in the absence of a demonstration of good cause."Motions for attorney's fees.  Rule 1.525 was amended to address a practical problem regarding exactly when a motion for attorney's fees must be served in order to be effective.  (See, e.g., Norris v. Treadwell, 907 So.2d 1217 (Fla. 1st DCA 2005) (motion effective when filed and served after adverse jury verdict but before filing of judgment).)  The former rule stated that the motion must be served "within" 30 days after the judgment is filed.  The amended rule provides that the motion must be served "no later than" 30 days after filing of the judgment.    These amendments take effect on January 1, 2006.  In re:  Amendments to the Florida Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176 (Fla. 2005).

Fee for Florida Bar review of lawyer ads goes up to $150 on 1/1/2006.  [Added 12/15/05]  --  In re: Amendments to the Rules Regulating The Florida Bar, 916 So.2d 655 (Fla. 2005). Florida Bar Professional Ethics Committee advises lawyers representing criminal defendants who intend to commit perjury.  [Added 7/4/05]  --  Florida Ethics Opinion 04-1. 

SUPREME COURT AMENDS RULES REGULATING FLORIDA BAR AND RULES OF JUDICIAL ADMINISTRATION TO ADDRESS MULTIJURISDICTIONAL PRACTICE OF LAW.  [Added 5/12/05]    Responding to a petition from the Florida Bar, the Supreme Court of Florida adopted rule changes making it easier for lawyers from other jurisdictions to provide legal services in Florida on a temporary basis -- the "multijurisdictional practice of law."  These amendments to the Rules Regulating The Florida Bar and the Florida Rules of Judicial Administration take effect on January 1, 2006.  The Court adopted the rule changes proposed by the Florida Bar Board of Governors as a result of the study given to multijurisdictional practice issues by 2 Florida Bar Special Commissions on the Multijurisdictional Practice of Law.  These studies were prompted by actions taken by the ABA Commission on Multijurisdictional Practice.    The Court's opinion states that the changes were adopted "due to changes in needs and in the practice of law" and that the Court's goal is "to implement changes that improve legal services for the public by permitting the limited, temporary multijurisdictional practice of law but at the same time protecting the public, the legal profession, and the judiciary."  The Court cautioned that the effects of these changes will be monitored, and directed the Florida Bar to report back within 2 years of the January 1, 2006, effective date with any recommendations for improvements or changes.    The Court divided its discussion of the new rules into 3 areas:  (1) multijurisdictional practice of law in Florida by non-Florida lawyers; (2) disciplinary control over such lawyers; and (3) pro hac vice admission of non-Florida lawyers.Multijurisdictional practice of law in Florida by non-Florida lawyers.  The Court's opinion noted that the current version of Rule 4-5.5 (titled "Unlicensed Practice of Law") and related case law, which severely restrict the ability of non-Florida lawyers to provide legal services in Florida or involving Florida law, "do[] not recognize the reality of modern legal practices."  The Court therefore amended Rule 4-5.5 to permit "temporary practice" in Florida by non-Florida lawyers.  The amended rule authorizes non-Florida lawyers to provide legal services in Florida in specified situations, which are summarized below.  A non-Florida lawyer, however, may not "except as authorized by other law, establish an office or other regular presence in Florida for the practice of law" or "hold out to the public or otherwise represent that [he or she] is admitted to practice law in Florida."  Amended Rule 4-5.5(b).    In short, amended Rule 4-5.5(c) provides that lawyers licensed in another U.S. jurisdiction, but not Florida, are authorized to provide legal services in Florida on a temporary basis by:  "(1) associating with a Florida Bar member who actively participates in the matter; (2) engaging in pre-pro hac vice admission activity; (3) rendering legal services in a pending or potential arbitration, mediation, or other alternative dispute resolution context; [and] (4) providing services not covered by the other provisions, based on specific nexus conditions."  Amended Rule 4-5.5(d) authorizes lawyers licensed in certain foreign countries (i.e., those having a "legal profession 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 public authority), but not Florida, to provide legal services in Florida on a temporary basis under conditions similar to the 4 applicable to non-Florida domestic lawyers, as well as in a fifth situation:  "providing services that are governed primarily by international law or the law of a non-U.S. jurisdiction in which the lawyer is a member."Disciplinary control over non-Florida lawyers providing legal services in Florida.  In order to protect the public interest, the Court amended several disciplinary procedure rules "to create a process for meaningful discipline of a lawyer" in both Florida and the jurisdiction(s) in which the lawyer is licensed to practice.  For example, amended Rule 3-4.1 provides that the Florida Supreme Court and its agencies have disciplinary jurisdiction over non-Florida lawyers who provide or offer to provide legal services in Florida.  Amended Rule 3-4.6 provides that a lawyer is subject to discipline in Florida regardless of where the lawyer's misconduct occursPro hac vice admission of non-Florida lawyers.  The Court amended Florida Rule of Judicial Administration 2.061 and Rules Regulating The Florida Bar concerning pro hac vice admission of non-Florida lawyers.  Amended Fla.R.Jud.Admin. 2.061 specifies that a non-Florida lawyer is presumed to be engaging in a "general practice" in Florida if he or she makes more than 3 appearances in a 365-day period in "separate representations."  The amended rule deletes language in the existing version of the rule "that authorized judicial discretion to permit more than three pro hac vice appearances in a 365-day period and to allow additional pro hac vice appearances in related litigation" (footnote omitted).  The Court stated that this change was due to "reports that non-Florida attorneys were abusing the current rule."    Additionally, the Court adopted new Rule 1-3.11, Rules Regulating The Florida Bar (entitled "Appearance by Non-Florida Lawyer in an Arbitration Proceeding in Florida"), which "sets forth procedures for an attorney licensed in another state or foreign country to represent a client in an arbitration proceeding in Florida on a temporary basis.  The appearance must be for a client who resides or has an office in the lawyer's home state, or is an appearance that arises out of, or is reasonably related to, the lawyer's practice in a jurisdiction in which the lawyer is admitted."  Although new Rule 1-3.11 does establish different procedures for standard arbitration and international arbitration, the Court explained that "the new rule is an attempt to balance the regulation of out-of-state practitioners, protection of the public, expansion of the multijurisdictional practice of law, and recognition of international business practices."  In re:  Amendments to the Rules Regulating The Florida Bar and the Florida Rules of Judicial Administration, 907 So.2d 1138 (Fla. 2005).    NOTE:  As a result of the "exigent circumstances" caused by Hurricane Katrina, the Florida Supreme Court ordered that the amendments to Rule 4-5.5 (as well as the amendments to Rules 3-2.1, 3-4.1, 3-4.6, and 3-7.2) become effective on September 14, 2005.     In re:  Amendments to the Rules Regulating the Florida Bar and the Rules of Judicial Administration (Fla., No. SC04-135, Emergency Order, 9/14/2005). 

Florida Supreme Court rescinds complete exemption from Basic Skills Course requirement for government lawyers, and modifies remaining exemption and deferral provisions.  [Added 5/12/05]  --  In re:  Amendments to the Rules Regulating The Florida Bar, 903 So.2d 183 (Fla. 2005). 

Florida Rule of Civil Procedure 1.525 (attorney's fees) no longer applies in family law proceedings.  [Added 3/3/05]  --  New Family Law Rule of Procedure 12.525 is effective immediately.  Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 897 So.2d 467 (Fla. 2005). 

Florida Supreme Court concludes it may not encroach on executive branch's authority by adopting workers' compensation procedure rules.  [Added 12/3/04]  --  Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004).  

Florida Supreme Court  adopts new forms and amends rules to implement its decision to authorize "unbundled legal services."  [Added 9/16/04]  --  Amendments to the Florida Family Law Rules of Procedure, 883 So.2d 1285 (Fla. 2004). 

ACTING ON FLORIDA BAR'S PETITION, FLORIDA SUPREME COURT REVISES BAR RULES (INCLUDING RULES OF PROFESSIONAL CONDUCT).  [Added 5/20/04]    The Supreme Court of Florida has acted on The Florida Bar’s petition to amend a number of the Rules Regulating The Florida Bar.  The petition, which was filed in April 2003, requested that the Court revise a number of rules, including several Rules of Professional Conduct.  Some of the key areas affected include lawyer advertising, attorney's fees and costs, and lawyer disciplinary procedures.  Amendment to the Rules Regulating The Florida Bar, 875 So.2d 563, 29 Fla.L.Weekly S265 (Fla., No. SC03-705, 5/20/2004), corrected opinion at 29 Fla.L.Weekly S379.  The amendments are effective immediately.Highlights from the Court’s 227-page order appear below.  References to "Rule" or "Rules" are to the Rules Regulating The Florida Bar.  (Chapter 4 of the Rules Regulating The Florida Bar contains the Rules of Professional Conduct.)  The sunEthics.com rules have been updated to reflect the amendments; click here to access the Rules of Professional Conduct as revised.    Significant Changes Lawyer advertising regulations.  The Court’s adoption of the Bar’s proposals effectively relaxed restrictions on lawyer advertising in several significant ways:The requirement that verbal and visual portrayals or depictions be "objectively relevant to the selection of an attorney" is eliminated.  (Former Rule 4-7.2(b)(4).)The requirement that illustrations be "directly related and objectively relevant to a viewer’s possible need for legal services" is eliminated.  (Former Rule 4-7.2(c)(1).)A non-lawyer spokesperson may speak or appear in TV and radio ads, provided the spokesperson "is not a celebrity recognizable to the public" and makes "a spoken disclosure identifying the spokesperson as a spokesperson and disclosing that the spokesperson is not an attorney."  (New Rule 4-7.2(b)(2).)The permissible use of dialogue in TV and radio ads is broadened.  (Amended Comment to Rule 4-7.5.)Use of a spokesperson’s voice or image in TV and radio ads is prohibited where it is "recognizable to the public." Rule 4-7.5(b)(1)(B).  The revised regulations governing TV and radio ads prohibit features that are "deceptive, misleading, manipulative, or . . . likely to confuse the viewer."  Amended Rule 4-7.5(b)(1)(A).  (This prohibition also applies to all illustrations in all ads. Rule 4-7.2(c)(1).)  All statements required to be included in lawyer ads must be "clearly legible if written or intelligible if spoken aloud."  The requirement that mandated written disclosures be "no smaller than one-quarter the size of the largest type otherwise appearing in the advertisement" is continued, though moved to a different rule.  Amended Rule 4-7.2(c)(11).  Direct mail advertisements no longer are limited to being on letter-sized paper.  Amended Rule 4-7.4(b)(2)(H). Costs charged to clients.  Rule 4-1.5 is amended to specifically provide that a lawyer’s costs must be reasonable.  (The rule presently imposes this standard for a lawyer’s fees.)  The revised rule lists factors to be considered in determining reasonable costs.  This new rule can benefit lawyers in at least 2 ways.  First, it contains a "safe harbor" provision specifying that a lawyer’s costs "shall be presumed reasonable" when there is a written attorney-client contract "in which the method is established for charging costs."  Amended Rule 4-1.5(b).  Second, new language in the Comment to Rule 4-1.5 approves the practice of lawyers using charges for "in-house costs" (such as "copying, faxing, long distance telephone, and computerized research") and "in-house services" (such as "paralegal services, investigative services, accounting services, and courier services") as profit centers.  Amended Rule 4-1.5(a), (b) and Comment.Trust accounting rules.  Rule 5-1.1 as amended retains the prohibition on commingling lawyer and client funds in a trust account, but now specifically authorizes a lawyer to "maintain funds belonging to the lawyer in the trust account in an amount no more than is reasonably sufficient to pay bank charges relating to the trust account."  This revision codifies a practice that the Bar has informally permitted for years.  Amended Rule 5-1.1(a)(1).Accepting credit cards for all payment purposes.  Rule 4-1.5(h) previously permitted lawyers to accept credit cards only for services actually rendered or cash actually paid on behalf of a client. The amended version removes this limitation.  Additionally, the revised Comment to the Rule now expressly states a position long held by the Bar – that a lawyer who accepts a credit card payment for an advance of fees or costs must place these funds in a trust account and add to them "the lawyer’s own money . . . in an amount equal to the amount charged" by the credit card company for doing business with it.  Amended Rule 4-1.5(h) and Comment.Duty of candor to the tribunal.  Rule 4-3.3 requires a lawyer to take reasonable remedial measures when the lawyer has unknowingly submitted false testimony or other evidence to a tribunal.  The Comment to the Rule previously indicated that rectification might require disclosure "to the court or to the other party."  The revised Comment no longer refers to a duty to disclose to "the other party;" it thus appears a lawyer’s sole duty of disclosure, where that duty applies, is to the court.  Comment to Rule 4-3.3.Communicating with persons represented by counsel.  Rule 4-4.2 generally prohibits a lawyer from communicating with a person known to be represented by another lawyer unless that lawyer consents (or unless one of the very limited exceptions set forth in the rule applies).  The Court’s revision of the Comment to Rule 4-4.2 should help clear up some long-standing confusion regarding an exception to the general prohibition.  The ethics rules of many states, as well as ABA Model Rule of Professional Conduct 4.2, contain an exception for communications that are "authorized by law."  Florida’s Rule 4-4.2, however, has never had that exception – but, despite this intentional deviation from the ABA’s Model Rule, the Comment to Florida Rule 4-4.2 did include the Model Rule’s reference to "communications authorized by law."  (It is unclear why this language was left in the Comment, but it appears to be a simple drafting oversight.)  The exact scope and application of the "authorized by law" exception has been hotly disputed; see Florida Ethics Opinion 90-4.  The Court’s amendment to the Comment removes the controversial language and substitutes the term "permitted communications."  Comment to Rule 4-4.2.Accepting referrals from lawyer referral services.  The revision to Rule 4-7.11 places additional burdens on lawyer referral services and lawyers who accept referrals from those services.  Under the amended rule, a lawyer referral service now must:  quarterly provide the Florida Bar with "the names of all persons authorized to act on behalf of the service;" respond to official Bar inquiries "in writing, within 15 days;" and use "its actual legal name or a registered fictitious name in all communications with the public."  Rule 4-7.11(a)(6), (7), (9).  How can the Bar enforce these (and other) requirements against a referral service owned and operated by non-lawyers?  The answer is in the amended rule, which mandates that any lawyer who accepts referrals from the service "is responsible for ensuring . . . that the service is in compliance with" these rules.  Rule 4-7.11(b).  Amended Rule 4-7.11.Sexual relations between lawyer and client.  The previous version of Rule 4-8.4(i) prohibited lawyer-client sexual relationships under certain circumstances. In her concurring opinion in The Florida Bar v. Bryant, 813 So.2d 38 (Fla. 2002), Justice Pariente had urged the Bar to consider a complete ban on such relationships.  The Bar responded with a recommendation that imposed further restrictions but fell short of a complete ban.  The revised rule provides that a lawyer may not "engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the interests of the client or the lawyer-client relationship."  Rule 4-8.4(i).  New language provides examples of offending conduct, including demanding sexual relations as a condition of representation, coercing or intimidating a client into acquiescing to sexual relations, or allowing the sexual relationship to cause the lawyer to render incompetent representation.  New language in the Comment provides that a "client" means not only an individual but "a representative of the client, including but not limited to a duly authorized constituent of" a corporate or institutional client.  Justice Pariente also wrote a concurring opinion in this case, requesting "that this rule be assessed periodically to ensure that it operates to guarantee that the attorney-client relationship is not compromised in any regard as a result of an ongoing sexual relationship."  Amended Rule 4-8.4(i) and Comment.Employment restrictions on disciplined lawyers.  Rule 3-6.1 permits a lawyer who has been disbarred or suspended, or who has resigned for disciplinary reasons, to work for a law firm under certain conditions (e.g., notice to the Bar, no direct client contact).  New subdivision (c) prohibits such a lawyer from working under the supervision of any lawyer who was supervised by the disciplined lawyer on or after the time the disciplinary problem arose; this prohibition lasts for 3 years from the date of the discipline or until the disciplined lawyer is reinstated to practice (whichever occurs sooner).  The new rule was prompted by the Bar’s observation that in several instances "a suspended lawyer hires a new associate to continue his or her law practice during a short-term suspension, and the suspended lawyer thereafter ‘works for’ that new associate" during the suspension.  New Rule 3-6.1(c).    Other Changes Accepting gifts from clients.  The revised Comment to Rule 4-1.8(c) specifies that a lawyer may accept a gift from a client that meets general standards of fairness "if the lawyer does not prepare the instrument bestowing the gift."  If a legal instrument is necessary to effectuate the gift, the lawyer "should advise the client to seek the advice of independent counsel."  Amended Comment to Rule 4-1.8.UPL procedures and remedies.  Amendments to Chapter 10 of the Rules (governing investigation and prosecution of UPL) address restitution to be paid by persons who engage in UPL to those harmed by their misconduct.  These changes are designed to "provide[] guidance for a referee’s recommendation of restitution and limits the restitution to the amount paid to the UPL respondent by the victim(s)" and also provides "that if a UPL respondent fails to pay restitution ordered by this Court, the Bar is authorized to file a petition for indirect criminal contempt."  Amended Rules 10-7.1(d), (e); 10-7.2(a)(1), (c).Bar Grievance Mediation and Fee Arbitration Program.  Revised Chapter 14 of the Rules merges the Bar’s grievance mediation and fee arbitration efforts "in order to obtain a common administrative process."  A joint standing committee for oversight has been created, and new rules provide standards for arbitrator training and certification.  Amended Chapter 14.New disqualification rules for members of Board of Governors and certain Bar committees.  New rules disqualify members and former members of the Board of Governors, unlicensed practice of law committees (standing and circuit committees), the Professional Ethics Committee, the Board of Legal Specialization and Education, certification committees, and Bar employees from certain representations involving UPL, ethics, and certification matters.  These restrictions also apply to other lawyers in same law firm as these members and former members.  The portions of the disqualification rules relating to current and former Board of Governors members and Bar employees (and others in their firms) are not new, having previously been contained in Rule 3-7.11(i).  The new rules essentially extend these restrictions to current and former members of ethics, UPL, and certification committees.  (There is no indication why similar standards were not applied to members of the Standing Committee on Advertising.)  Amended Rule 3-7.11(i). New Rules 2-9.4(e), 6-1.5, 10-5.2.Authorized House Counsel.  Provisions of Chapter 17 are amended to clarify that "an authorized house counsel applicant must file a certificate of good standing and clear disciplinary record from each jurisdiction in which the applicant is licensed" and that approved applicants must annually recertify "good standing and lack of pending disciplinary complaints in other jurisdictions."  Amended Chapter 17.Inventory attorneys.  Rule 1-3.8 previously provided that an "inventory attorney" could be authorized to step in to wrap up a lawyer’s practice when the lawyer (typically a sole practitioner) died or abandoned the practice.  An amendment extends the rule to situations where in which a lawyer "suffers an involuntary leave of absence due to military service, catastrophic illness, or injury."  Amended Rule 1-3.8(a).Administrative fees to Bar in discipline cases.  The Court rejected the Bar’s request for a potentially substantial increase, based on a sliding scale, to the administrative fee assessed to unsuccessful respondents in disciplinary cases and applicants in reinstatement cases.  The Court was concerned that a sliding scale "would create a financial disincentive for an attorney facing discipline or seeking reinstatement to exercise rights provided by the Rules of Discipline" (Chapter 3, Rules Regulating The Florida Bar).  Instead, the Court "conclude[d] that an across-the-board increase in the administrative fee schedule [from $750 to $1250] is preferable."  A concurring opinion by Justice Pariente, joined by Justice Cantero, suggested a higher fee in some cases and remained open to revisiting the issue at a later date.  Amended Rules 3-7.6(q)(1)(I) and 3-7.10(m)(1)(I).Limit on use of parol evidence in disciplinary proceedings.  Prior case law held that the parol evidence rule did not apply to disciplinary proceedings. The Florida Bar v. Frederick, 756 So.2d 79, 85 n.2 (Fla. 2000).  Responding to the Court’s direction in that case, the Bar proposed a rule addressing the use of parol evidence.  The Court rejected the Bar’s proposed rule as "appear[ing] to specify that more rather than less parol evidence may be admitted in Bar disciplinary proceedings" because it would have applied to all attorney-client contract disputes, not just those concerning fees.  The Court substituted its own language, which prohibits the use of parol evidence in Bar disciplinary proceeding "to vary the terms of [the attorney-client] contract, except . . . if necessary to resolve issues of excessive fees or excessive costs."  Amended Rule 3-7.6(l).Financial effect of short-term suspensions from practice.  The Court declined to adopt the Bar’s proposal to amend Rule 4-8.6(e).  The present rule provides that when a lawyer who is the sole owner of a law practice receives a long-term suspension (91 days or more), that lawyer must immediately sever all "employment with and financial interests in" the practice.  The Bar’s proposal would have required the practice to completely cease operation during even short-term suspensions.  Rejecting this proposal, the Court stated that "[w]e decline to adopt a rule that would impose such severe consequences on an attorney receiving a short-term suspension and that attorney’s employees."Amendment to the Rules Regulating The Florida Bar, 875 So.2d 563 (Fla., No. SC03-705, 5/20/2004). 

Florida Bar advisory opinion addresses how lawyer may pay for law practice purchased from deceased lawyer's estate.  [Added 3/29/04]  --  At its meeting on March 26, 2004, the Florida Bar Professional Ethics Committee gave final approval to Florida Ethics Opinion 03-1.  The opinion concludes that "Rule 4-1.17, governing a sale of a law practice, read together with Rule 4-5.4(a), permitting an estate to sell a practice, allows the downward adjustment of the practice’s sale price as proposed." 

Florida Supreme Court follows recommendations of Bar committee and amends rules to facilitate "limited representation" in order to enhance individuals' access to justice.  [Added 11/14/03]    Responding to specific rule changes proposed by the Florida Bar’s "Unbundled Legal Services Special Committee II" the Supreme Court has adopted rule amendments that will substantially affect the manner in which persons receive legal assistance and representation in family law and other cases.  These amendments to the Rules of Professional Conduct, the Rules of Judicial Administration, and the Family Law Rules of Procedure expressly recognize and approve the concept of "limited representation" (also called "unbundled legal services" or "discrete task representation").  The Court stated: "Our goal in adopting rules governing unbundled legal services is to encourage attorneys to offer limited representation so that individuals who either cannot afford or do not desire full representation can obtain legal advice or representation on a discrete legal matter.  It is our hope that such services will increase the public’s understanding of the legal process, thereby improving access to justice.  Further, a better-educated pro se litigant will be able to present his or her case more effectively to the court, thereby facilitating an expeditious resolution of his or her legal matter.  Finally, the limited representation in family law matters permitted under new rule 12.040 will assist pro se litigants in Florida’s court system by allowing them to have representation for at least part of their family law matter."    The Court’s opinion traced the history of the "limited representation" concept in Florida and the actions taken by other states and the ABA on this front.  The opinion also explained the rule changes and how the Court expects them to operate in practice.  Although the opinion focused on how the new rules would affect practice in the family law area, it may be noted that the amendments to the Rules of Professional Conduct are not limited to family law.    Rule of Professional Conduct 4-1.2 as amended permits lawyer and client to "agree to limit the objectives or scope of the representation" as long as law or rule does not prohibit the limitation.  The Comment to the Rule specifies that the limitation "must be reasonable under the circumstances."  The Rule requires that the client consent to the limited representation "in writing after consultation."  (The Court also "request[ed] that the Bar develop a standard informed consent form that may be used in limited in-court representation in family law cases.")  The Court’s opinion noted that during this consultation the lawyer "should advise the litigant that the attorney’s ethical obligations only extend to the representation for which the attorney was retained."  Significantly, the Court stated, "The attorney does not have an ethical obligation to the client on other discrete portions of the litigant’s case."  Lawyers concerned about disciplinary (and, perhaps, malpractice) liability as they venture into uncharted "limited representation" waters may seek comfort in this statement.    Rule of Professional Conduct 4-4.2 as amended addresses the issue of whether a person who is being provided "limited representation" is considered "represented" or "unrepresented" for the purpose of being contacted by the opposing counsel.  It specifies that the person "is considered to be unrepresented for purposes of this rule unless the opposing lawyer knows of, or has been provided with, a written notice of appearance under which, or a written notice of the time period during which, the opposing lawyer is to communicate with the limited representation lawyer as to the subject matter within the limited scope of the representation."  Rule of Professional Conduct 4-4.3 as amended, regarding communication with an unrepresented person, addresses a similar concern.    On its own motion, the Court promulgated new Family Law Rule of Procedure 12.040 and amended Rule of Judicial Administration 2.060 and Rule of Appellate Procedure 9.360.  The new family law Rule "provides: (1) how an attorney may be the attorney of record for only part of a proceeding; (2) when an attorney must obtain permission from the court to withdraw from or limit the scope of representation; (3) how an attorney of record in a limited proceeding or matter ends the representation when the purposed of the limited representation is fulfilled (i.e., by filing a notice of completion titled "Termination of Limited Appearance"); (4) what information the pro se litigant must provide when an attorney assists the litigant in the preparation of pleadings or other documents only; and (5) what information a limited appearance attorney must provide on the signature page of a pleading or other document."  The new rule also requires that, during the time the lawyer is making a limited appearance, "pleadings or documents related to the limited representation must be served on both the attorney and the party."  Additionally, if the lawyer gets notice of a hearing that is not within the scope of the limited representation, the lawyer must inform the court and the opposing party that he or she will not attend the hearing because it is outside the scope of the limited representation.    How will this concept of "limited representation" work in family law cases?  The court addressed a few situations that might arise under new Family Law Rule of Procedure 12.040.  For example, the court will not be required to hear from both the client and limited representation lawyer on matters relating to the limited representation.  Additionally, the Court also stated that it did "not envision that the rule would permit an attorney to appear solely for the purpose of making evidentiary objections on behalf of the family law litigant who is representing himself or herself on all matters."    The new rule amendments are effective January 1, 2004.  Amendments to the Rules Regulating The Florida Bar and the Florida Family Law Rules of Procedure (Unbundled Legal Services), 860 So.2d 392 (Fla. 2003).