March 1, 2017 Letters
Letters
Judicial Independence
As the Legislature prepares state constitutional amendments allowing it to override a Supreme Court or other state court finding that a statute is unconstitutional and setting term limits for appellate judges, it is obvious that Florida’s judicial branch is on the endangered species list.
The Constitution Revision Commission has the power to put proposed constitutional amendments on the 2018 ballot without any review by the executive, legislative, or judicial branches. Since Chief Justice Jorge Labarga can appoint only three CRC members while the governor and the Legislature can appoint 33, it is obvious where this is going and it is ominous for The Florida Bar, which is solely governed by the Supreme Court.
If the judicial branch becomes an administrative agency of the Legislature, the Bar would be ruled by nonlawyers having a negative view of the legal profession and lawyers in general, as has been the case in California and other states for many years, with lawyers winding up on the short end of the stick.
David P. Carter
Seminole
Client Disclosure
As with so many issues in recent years, The Florida Bar once again responds with defensive self-interest in opposing a House rule designed to increase transparency in lobbying for the good of the voting public. A simple requirement that lobbyists disclose who they are lobbying for is said to jeopardize attorney-client confidentiality. This position does not withstand examination.
Rule 4-1.6(c)(1) makes clear that a lawyer may reveal confidential information to the extent the lawyer reasonably believes necessary. A lawyer can conclude disclosure of a lobbying client’s name to comply with Florida’s lobbying requirements is reasonable when a client asks the lawyer to lobby on the client’s behalf. (In passing, it is worth noting that confidentiality exceptions set forth in Rule 4-1.6(c)(2)-(6) exist to some degree or another to protect lawyers, despite the potentially adverse effect of such disclosure on the client.) Moreover, the comment to the rule indicates that “[a] lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client’s instructions or special circumstances limit that authority.” Shall we now need specific authority to name a client when filing a lawsuit, or when drafting a promissory note to evidence a loan, at the client’s direction?
It would certainly be prudent to warn existing lobbying clients of a change in disclosure requirements concerning their identity, but it hardly seems reasonable to require advance consent (preferably in writing says the Bar) for all future lobbying clients or engagements.
As with judicial term limits, the death penalty, merit retention elections, and recent litigation that forced legislators to testify under oath as to their state of mind during the legislative process, the Bar reflexively and incessantly sides against the “conservative” Florida Legislature on any matter that even tangentially impinges on the prerogatives of lawyers. That seems true in this instance as well, even when the goal is a “liberal” or even “bipartisan” one of increasing transparency about the role of money and lobbying in the legislative process.
James Lovely
Lakeland
(The Bar’s Ethics Counsel Responds: The Florida Bar is not opposing the House rule. The Bar is merely notifying its members that the new House rule exists, and that the prudent course of action is to notify clients of the disclosure requirements and obtain their consent in advance of disclosure. The Bar fails to see how advising lawyers to provide more information to clients can be viewed as the Bar desiring less transparency.)
