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.

    Watch sunEthics.com for updates.

Professional Ethics Committee debates whether it is ethical for prosecutor to offer or defense counsel to accept plea deal conditioned on defendant's waiver of prosecutorial misconduct and ineffective assistance.  [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.

    A criminal defense lawyer asked the Committee whether it would be unethical for a prosecutor to offer, or criminal defense counsel to advise the client regarding, a plea deal that requires the defense lawyer's client to waive any past or future prosecutorial misconduct or ineffective assistance of counsel.  The Committee heard from guest speakers in the prosecution and criminal defense bars and debated the matter at length.  A subcommittee of the Committee has been assigned to draft, for Committee consideration at the next meeting, a proposed advisory opinion concluding that the proposed conduct would be unethical.

    Watch sunEthics.com for updates.

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, __ So.3d ___, 36 Fla.L.Weekly S305 (Fla., No. SC09-1733, 6/23/2011), 2011 WL 2472990.

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.)

Statute limiting time to intervene in real property action does not unconstitutionally conflict with Supreme Court's rule-making powers.  [Added 10/3/10]

    Appellants attempted to intervene in mortgage foreclosure proceedings.  The trial court denied their motion as untimely under Fla.Stat. sec. 48.23(1)(b) (2008).  On appeal, Appellants contended "that section 48.23(1)(b), a lis pendens statute allowing the holders of unrecorded property interests only twenty days from the recording date of the lis pendens to intervene in an action affecting property, unconstitutionally conflicts with Florida Rule of Civil Procedure 1.230, which gives interested parties the right to intervene 'at any time' during the litigation."  Specifically, Appellants asserted that the statute usurped the Florida Supreme Court's rulemaking authority and thus was unconstitutional.

    Disagreeing, the Fifth DCA affirmed.  The Florida Legislature is constitutionally empowered to enact substantive law, while the Supreme Court enacts procedural rules.  The issue before the court was whether section 48.23(a)(b) "is a procedural statute that impermissibly encroaches on the Florida Supreme Court’s rulemaking authority, or a substantive statute properly within the purview of the Legislature."  The court concluded that it was substantive.  "We believe that section 48.23(1)(b) operates as a substantive nonclaim statute because it is a self-contained statute that automatically bars enforcement against the property by the holder of the unrecorded interest after the prescribed twenty-day period, provided that the litigation proceeds to final judgment and judicial sale.  . . .  Similarly, section 48.23(1)(b) acts as a statute of repose."  Consequently, the statute did not conflict with the Supreme Court's rule-making authority and was not unconstitutional.  Adhin v. First Horizon Home Loans, 44 So.3d 1245 (Fla. 5th DCA 2010).

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.

Watch sunEthics.com for further developments on these items.

Florida 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:

(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.  The Guidelines are reproduced below.

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; and

• Lawyers' 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]  --  Click here to view the full text of the amendment to Model Rule 1.10.

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; and

• Lawyers' 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; and

• residency 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; and

• advisory 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.

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

    GENERALLY

Preamble.  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 ADOPT

Prosecutor 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 COURT

Contingent 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 occurs

Pro 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).

PRO HAC VICE ADMISSION TO FLORIDA COURTS AND ARBITRATIONS

    Click here for a summary of relevant rule changes, authored by Board of Governors member Brian Burgoon.

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 occurs

Pro 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:

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).