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April 30, 2013
Proposed board actions

Pursuant to Standing Board Policy 1.60, the Board of Governors of The Florida Bar publishes this notice of intent to take final action on the following items at its May 31, 2013 meeting in Sarasota. These matters are governed by Rule 1-12.1, Rules Regulating The Florida Bar. Most amendments to the Rules Regulating The Florida Bar must be filed with the Supreme Court of Florida after the board takes final action, with further notice and opportunity to be heard, before they are officially approved and become effective. To receive a full copy of the text of any of these proposed amendments please email eto@flabar.org. Reference any requested proposal by its title or item number and date of this publication.

RULES REGULATING THE FLORIDA BAR

Chapter 3 RULES OF DISCIPLINE

Subchapter 3-5 Types of Discipline

RULE 3-5.1 GENERALLY

Within subdivision (e), clarifies that suspension may be for a specified time as imposed by the Court’s order or until further order of the Court and adds that all suspensions except by contempt order must be for a finite period of time.

RULE 3-5.2 EMERGENCY SUSPENSION AND INTERIM PROBATION OR INTERIM PLACEMENT ON THE INACTIVE LIST FOR INCAPACITY NOT RELATED TO MISCONDUCT

Within subdivision (c) and new subdivisions (d) and (e), and renumbered subdivisions (h) and (k), proposed rule amendments provide a mechanism for owners of funds in a lawyer’s frozen trust account, to assert claims of ownership on these funds as part of the Bar’s referee procedures in suspension and emergency suspension cases through a referee or receiver. Remaining rule provisions are renumbered and additional non-substantive changes are made to conform to the Supreme Court style guide.

RULE 3-5.3 DIVERSION OF DISCIPLINARY CASES TO PRACTICE AND PROFESSIONALISM ENHANCEMENT PROGRAMS

Within subdivision (c) and the comment, the proposed change allows bar members who have received a diversion to be eligible for a diversion for a different type of conduct, for which a diversion program exists, as long as the subsequent conduct occurred one year or more after the first diversion. Within subdivision (c) the proposed amendment also shortens the period between diversions for the same type of conduct from 7 years to 5 years.

Chapter 4 RULES OF PROFESSIONAL CONDUCT

Subchapter 4-1 Client-Lawyer Relationship

RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES

Within Rule 4-1.5(f)(4), adds new subdivision (E) that the lawyer in a personal injury or wrongful death case charging a contingent fee must provide ordinary lien resolution as part of the lawyer’s representation of the client under the fee contract, that the lawyer may not charge any additional fee to the client for providing such services if all fees for the personal injury matter plus lien resolution exceed the contingent fee schedule, that extraordinary services for subrogation and lien resolution may be referred to another only with the client’s informed consent, that additional fees by the other lawyer must comply with all provisions of the fee rule, and that the lawyer providing the extraordinary subrogation and lien resolution services may not divide fees with the lawyer handling the personal injury or wrongful death claim. Within comment, explains what lien resolution services are required as part of the original fee contract and what extraordinary services entail.

Subchapter 4-5 Law Firms and Associations

RULE 4-5.5 UNLICENSED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW

Within the comment, changes rules 4-7.1 through 4-7.10 to subchapter 4-7.

Chapter 6 LEGAL SPECIALIZATION AND EDUCATION PROGRAMS

Subchapter 6-13 Standards for Certification of a Board Certified Appellate Lawyer

RULE 6-13.2 DEFINITIONS

Within new subdivision (e), provides a definition of “primary responsibility” for filing a brief, petition, or response. This means having the most substantial and direct participation of all the lawyers contributing to that task. Only one lawyer may claim primary responsibility for any such task. Where primary responsibility is used to meet a requirement, the applicant shall specifically identify any other lawyer who provided substantial assistance with the task and demonstrate to the satisfaction of the appellate practice certification committee that the applicant’s level of participation was primary.

Within new subdivision (f), provides a definition of “principal briefs in appeals”. This means the primary brief on the merits and excludes reply briefs, jurisdictional briefs, supplemental briefs, and amicus briefs, provided that for good cause shown, the appellate practice certification committee may treat a reply brief, jurisdictional brief, supplemental brief, or amicus brief as a principal brief for the purpose of these rules, if the brief is substantial and reflects a level of effort and preparation comparable to that required to produce a principal brief.

Within new subdivision (g), provides a definition of “petitions or responses in extraordinary writ cases”. This refers to a petition or response to a petition that seeks a writ from an appellate court to challenge a ruling or the jurisdiction of a lower tribunal or administrative agency. The term also includes a petition or response to a petition for a writ of certiorari filed in the Supreme Court of the United States, but does not include any other petition or response to a petition that merely requests discretionary appellate review, such as a notice to invoke the discretionary jurisdiction of the Supreme Court of Florida or for permission to appeal to a United States Court of Appeals an order of a district court pursuant to, for example, 28 U.S.C. §1292(b) or Federal Rule of Civil Procedure 23(f).”

Within new subdivision (h), provides a definition and guide to good cause exceptions. “Good cause exceptions are intended to grant the appellate practice certification committee the discretion to waive technical compliance with the relevant requirement to allow the certification or recertification of an individual where the applicant’s proffered circumstances demonstrate that the applicant has, in the experience and judgment of the appellate practice certification committee, the special knowledge, skill, and proficiency, or the equivalent thereof, that technical compliance with that requirement is intended to demonstrate. The appellate practice certification committee is required to consider whether good cause is shown only upon the specific request of an applicant and to consider only those facts specifically identified by the applicant.” The amendment also adds the words “appellate practice” before the word “committee” to make the reference to the committee consistent throughout the rule.

RULE 6-13.3 MINIMUM STANDARDS

Within subdivision (b), strikes the current language addressing how “primary responsibility” is identified. Within subdivision (c), strikes current language that describes this requirement in terms of having had “primary responsibility” for oral arguments, adds that the applicant must have “presented” the oral arguments. Additional amendments are made to conform rules to the Supreme Court style guide and do not amend the substance of the rule.

RULE 6-13.4 RECERTIFICATION

Within subsection (b), strikes the current language addressing how “primary responsibility” is identified. Within subsection (c), strikes the current language that describes this requirement in terms of having had “primary responsibility” for oral arguments; adds that the applicant must have “presented” the oral arguments. Within subsection (g), adds a reference to the new, overall definition of “good cause” in the proposed new subsection (h) of Rule 6-13.2. Other amendments are made to conform to the Supreme Court of Florida style guide and do not amend the substance of the rule.
Chapter 10 RULES GOVERNING THE INVESTIGATION AND PROSECUTION OF THE UNLICENSED PRACTICE OF LAW
Subchapter 10-2 Definitions

RULE 10-2.1 GENERALLY

Within subdivision (c), changes “state” to “jurisdiction.”

[Revised: 04-13-2014]