sunEthics

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."

    Watch sunEthics.com for updates on these rule proposals.

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