sunEthics

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.

    The Bar bifurcated its filing into 2 petitions, the first containing the more substantive changes and the second containing the "housekeeping" changes.

    The Bar's proposals address a number of topics; some of the significant proposals are summarized below.  (All of the proposed changes except the changes regarding lawyers acting as court-appointed mediators are in the non-housekeeping petition.)

    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."

    Maximum period of probation (Rule 3-5.1(c)).  The proposed amendment to Rule 3-5.1(c) would increase the maximum length of a disciplinary probation from 3 years to 5 years.

    Disciplinary revocation of license to practice (Rule 3-5.1(g)).  The proposed new provision to Rule 3-5.1 would provide for a "disciplinary revocation" of a lawyer's license to practice that would be "tantamount to disbarment."  The revocation would be for a minimum period of 5 years.  "Disciplinary revocation" would replace and strengthen the "disbarment by consent" currently found in Rule 3-5.1(j).

    Emergency suspension from practice (Rule 3-5.2(a)).  The proposed amendment to Rule 3-5.2(a) would allow for imposition of an emergency suspension when a lawyer is suspended or disbarred in a foreign jurisdiction.

    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.)

    Click here to view comments filed by Tim Chinaris regarding proposed Rule 5-1.2(d), "Signing Trust Account Checks."

    Watch sunEthics.com for updates.

sunEthics is produced by Tim Chinaris, and hosted by Faulkner University, Thomas Goode Jones School of Law.  Please read our disclaimers.  Search our site, or view previously posted summaries using our SUBJECT INDEX.  © 2012