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Unbundled services for civil cases proposed

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Unbundled services for civil cases proposed

Senior Editor

With the support of new Bar President Ramón Abadin, the Rules of Judicial Administration Committee is recommending a rule change that would allow lawyers to provide “unbundled” services in civil cases – and perhaps in most other types of cases.

The rule also creates a new procedure for coverage attorneys to notify the court when they appear in a case, and defines the lead counsel in a case and how that counsel and other lawyers can join and leave a case.

The committee approved the amendments to R. Jud. Admin. 2.505 on June 26, when it met at the Bar’s Annual Convention. It wound up being an object lesson on the difficulties of trying to meet the needs of the fast-changing legal profession — a priority of Bar leadership — while providing careful review of procedural rule changes.

Committee member Amy Borman, who chaired the RJA subcommittee that considered the issue and who became chair of the committee for the coming year at the end of the meeting, presented the proposed amendments.

The process began in the fall of 2012 when the committee was asked to address how coverage attorneys get in and out of cases, she said. Problems arose because many times clients did not know a coverage attorney would be representing them in court; in cases without clerks it could be uncertain who had actually attended a court proceeding on behalf of a client, and sometimes clients disagreed with an assertion made by the coverage attorney. It was determined that coverage attorneys typically failed to comply with Rule 2.505(e), which requires filing a notice of appearance when appearing in court.

The subcommittee spent two years studying the issue and preparing substantial modifications to the rule, including for the first time providing a definition of lead attorney and providing how other attorneys could participate in the case. It specifically rejected that coverage attorneys should be allowed to appear without filing notices.

Then last summer the Vision 2016 commission recommended that attorneys be allowed to provide unbundled services in civil cases, similar to what is already allowed in probate and family law cases.

Since that recommendation also involved Rule 2.505, the subcommittee combined that with its ongoing rewrite. There was also an additional factor: Vision 2016, which is concentrating for the moment on issues that can be accomplished quickly, requested that the RJA act no later than its June 2015 meeting at the Annual Convention.

Borman said she told Vision 2016 representatives: “Wouldn’t you let us merge this into 2.505? We’re already looking at it.”

“They said, ‘Well, you’ve been looking at it for two and a half years. We need you to move on this by June.’”

Between March of this year and the convention, Borman’s subcommittee met 11 times, including sometimes with Vision 2016 representatives to work on the rule.

As Borman explained in a memo to RJA members, “Currently, the proposed changes to Rule 2.505 consist of having three types of attorneys — all of whom are attorneys of record: lead counsel, additional counsel, and limited representation counsel. As it pertains to the court, lead counsel is the attorney with primary responsibility and can only withdraw from the case with an order from the court. Additional counsel contemplates associates in a law firm, co-counsel, and even covering or stand-in counsel. Additional counsel need not have an order from the court to withdraw, as lead counsel will still remain. Limited representation counsel are attorneys who have an agreement with a client (who is a party or nonparty) to appear for a certain court proceeding or time period. This concept is currently used in family and probate. This will assist in allowing more individuals access to the courts.”

Borman said one difference between limited appearance attorneys and coverage attorneys is the former have direct relationships with clients, while the latter are typically engaged by other attorneys.

The new rule requires additional counsel, including covering attorneys to electronically file a notice with the court they will be appearing and then file another notice when their participation in the case is over. There is also a procedure where a judge can verbally allow the lawyer’s appearance.

One point of contention was whether the new limited appearance rule, since it was being placed in the Rules of Judicial Administration instead of Rules of Civil Procedure, would apply to other practice areas or just to civil. Borman said the Vision 2016 representatives pushed for a broad interpretation and hence the rule will apply to other areas – such as small claims, criminal, appellate, and juvenile – unless those procedural rules are specifically amended to “opt out” of the limited appearance rule. She also said probate and family rules will have to be amended to comply with the new Rule 2.505, assuming it’s adopted by the Supreme Court.

Representatives from various other procedural rules committees objected to the rule, saying they would seek to opt out of the limited appearance or revised language on coverage attorneys, or perhaps both.

Deborah Schroth, of the Juvenile Procedure Rules Committee, said the covering attorney rule is a poor fit for a government agency, such as the Department of Children and Families when it handles dependency cases.

“We do have lawyers who prosecute these cases who cover for each other. Our client is the State of Florida, so it’s not like our client is going to become confused on who has made a representation on the client’s behalf,” she said.

Others said the proposal would cause problems for state attorneys and public defenders, and in traffic court. The committee did approve the suggestion from Supreme Court Justice Ricky Polston, the court’s liaison to the panel, to exclude death penalty counsel from the proposed rule since they are already subject to special rules on entering and leaving cases.

Committee member Paul Regensdorf, who served on the drafting subcommittee, said the rule isn’t that much of a change for most people. He said the rule for the first time defines the lead attorney; provides that the lead attorney is primarily in charge of the case and cannot leave without the client’s and the court’s consent; provides for co-counsel, associate, and coverage attorneys to get into and leave the cases; and addresses the unbundled issue.

“This is not imposing a massive change for most people,” he said. “The rule has been chewed on by a lot of people; I think those who have looked at it can live with it.. . . If ultimately it needs some tweaking, that can happen at the Supreme Court level. I think this is a comprehensive rule and it should proceed.”

Committee member Judson Cohen said many of the objectors to the proposed rule described practices that don’t meet the current appearance rule.

“Every one of your current practices violate the current rule,” he said. “All of your concerns about the new rule, right now you’re doing it wrong. . . . The current rule is worse than what you’re going to end up with.”

Abadin, along with President-elect Bill Schifino, attended the meeting during the Rule 2.505 debate, and the new president made his pitch to make rules more streamlined and understandable and to react quickly to the changing legal marketplace.

“The committee, you folks, have to look not at our system, but the public’s system. How do we serve our customers? If we were a business, 65 percent of the people we could be selling our product to can’t afford it,” Abadin said. “We need to look at our legal system so we can serve our customers who are the owners of the system.”

After listening to the debate, including calls to postpone any vote until the RJA meets again in September, Abadin left to go to another meeting. But he told the committee members he hoped to be back in 30 minutes (he was unable to return) and by then he hoped they would have taken a vote rather than delaying.

Not much later, the committee approved a motion to end debate and then voted 23-4, with two abstentions, to approve the proposed rule. It now goes to the Bar Board of Governors for its recommendation and then to the Supreme Court.

A draft of the proposed rule can be found on the Bar’s website at: /cmdocs/cm235.nsf/WDOCS/F16B34567D91F42185257E6600425733.

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