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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, ___ So.2d ___, 31 Fla.L.Weekly S195 (Fla., No. SC04-2246, 3/23/2006).  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.

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