The Florida Bar
Bar Issue Papers
Rules of Professional Conduct
(Chapter 4, Rules Regulating The Florida Bar)
On This Page
II. Bar Position
IV. Facts and Statistics
On January 1, 1987, the Code of Professional Responsibility ceased to govern lawyers in Florida. The Code was replaced by the Rules of Professional Conduct, which is Chapter 4 of the Rules Regulating The Florida Bar.
The new Florida rules, patterned after the American Bar Association (ABA) Model Rules of Professional Conduct but stricter in many instances, provide updated ethical standards for attorney behavior and the structure for regulating conduct. Attorneys who violate the rules are subject to disciplinary proceedings brought by the Bar with penalties imposed by the Supreme Court of Florida. Advantages of the new rules include:
- Greater clarity, therefore promoting greater understanding of professional standards; improving ease of access for the average practitioner and offering a more definite framework for disciplinary procedures.
- Guidance in many matters not addressed in the Code of Professional Responsibility.
New Rules of Discipline (Chapter 3, Rules Regulating The Florida Bar), which took effect at the same time as the Rules of Professional Conduct and amended further March 16, 1990, allow the Bar to publicly acknowledge complaints against attorneys after the Bar has formally filed a complaint against an attorney with the Supreme Court of Florida (cases received before March 17, 1990) and after grievance committee or staff disposition, including dismissals (cases after March 16, 1990). The Bar will be able to acknowledge that fact by citing the attorney's name, the nature of the complaint and the status of the case. Previously, before January 1, 1987, such information was usually released only after the Supreme Court issued the discipline order -- often months or years after the formal complaint was filed. The new discipline rules also increase the disbarment period from three to five years (before an attorney can apply for readmission). The rules of discipline were amended with respect to abolition of the "gag rule," substantial reduction in the amount of confidentiality attached to disciplinary cases and to allow for more streamlined grievance committee procedures.
On February 9, 2000, The Florida Bar petitioned the Supreme Court to amend the Rules Regulating The Florida Bar. Some modifications were accepted and are now reflected in the Rules Regulating The Florida Bar.
The most recent amendments to Chapters 3 and 4 of the Rules Regulating The Florida Bar were enacted by the Florida Supreme Court in Amendments to Rules Regulating The Florida Bar, 29 Fla. L. Weekly S265 (No. SC03-705, 5/20/2004).
II. Bar Position
A. American Bar Association Position
The Model Rules reflect years of effort by a commission of the ABA. The Florida Bar was active in the development of the Model Rules and many of its recommendations were included in the final Model Rules document.
B. The Florida Bar Position
Florida's Rules of Professional Conduct are based on the Model Rules with modifications specific to the state. The rules were submitted to the Supreme Court and were approved with minor changes in July 1986. The Rules of Professional Conduct reflect the position of The Florida Bar on matters of attorney conduct and discipline.
The first national standards for lawyers were the Canons of Professional Ethics, adopted by the ABA in 1908, and subsequently by most state lawyer regulatory bodies. In 1969 the ABA replaced the Canons with the Code of Professional Responsibility, which was in turn, adopted in varying forms by all state bar associations.
In 1977, the ABA leadership determined the code needed reworking and appointed the Commission on the Evaluation of Professional Standards, commonly known as the Kutak Commission. After six years of comment, debate and redrafting, the Kutak Commission proposed its final work product, the Model Rules of Professional Conduct, which the ABA adopted in 1983 to replace the Code of Professional Responsibility.
The Florida Bar appointed a special study committee of lawyers and law professors from throughout the state to study the proposed rules and make recommendations regarding their adoption in Florida. After thorough review, debate and public hearings, the committee recommended that the rules be adopted with some modifications.
The Florida Bar's Board of Governors concurred, and after lengthy consideration, the Florida Supreme Court entered its order adopting the rules, effective 12:01 a.m. on January 1, 1987, in place of the Code of Professional Responsibility.
The Code of Professional Responsibility was in a three-part format: the nine Canons, the Ethical Considerations and the Disciplinary rules. The purpose was to state the general maxims in the Canons, and aspirational objectives in the EC's, and the enforceable standards in the DR's.
The Kutak Commission found that the Code of Professional Responsibility, including the varying standards found in the Canons, EC's and the DR's, were cumbersome and difficult to apply in the practical resolution of ethical dilemmas arising in the everyday practice of law.
With the increasing size of the Bar and the need to provide more effective ethical standards for lawyers, the Kutak Commission believed that the restatement format would make the rules a more useful tool in the practice of law and in disciplinary procedures. The rules also provide substantive guidance in many areas not addressed by the code.
The rules abandon the three-part format of the Code. The rules appear in a restatement format, with a total of 50 black letter rules in eight parts (Client-Lawyer Relationship, Counselor, Advocate, Transactions With Persons Other Than Clients, Law Firms and Associations, Public Service, Information About Legal Services, and Maintaining the Integrity of the Profession).
Accompanying each rule is a comment explaining the purpose of the rule and providing a guide to interpretation. The comments explain and interpret the rules, but their statements of appropriate conduct, to the extent that they go beyond the actual mandates of the rules themselves, are not mandatory or binding.
Some of the areas where The Florida Bar has adopted stricter standards than the ABA's Model Rules include:
- Client Confidentiality. Florida rules require a lawyer to reveal information to prevent a client from committing a crime or to prevent a death or substantial bodily harm to another. The ABA Model simply leaves revelation of that information to the discretion of the lawyer.
- Contingency Fees. Florida rules require that all such arrangements in personal injury and property damage cases be in writing and closing statements disbursing such fees also be in writing. Percentage caps are also in place for personal injury and wrongful death cases. The ABA has no such cap requirements. Fee splitting is also addressed in the rules. A client must approve most fee splits before attorneys can share a fee and the closing statement must reflect who received what fees. For the most part, the substantive content of the rules is consistent with the Code of Professional Responsibility that they replace. Some examples of where the rules vary from the code, or address matters not found in the Code include:
- The rules are consistent with the recent pronouncements of the U.S. Supreme Court on advertising and essentially permit any form of advertising that is not false or misleading.
- Lawyers are allowed in certain situations (including the aftermath of disasters) to solicit clients through direct mail advertising.
- Lawyers are required to report ethical violations by other attorneys that raise a substantial question as to the lawyer's honesty, trustworthiness or fitness as a lawyer. Previously, reporting violations by other lawyers was discretionary. The rules permit disciplinary action against a lawyer who knows of serious misconduct by another lawyer but fails to report it. Attorneys have a similar responsibility relative to judicial misconduct.
- Attorneys are forbidden from using means that have no substantial purpose other than to embarrass, delay or burden a third person and forbidden from making a frivolous discovery request in a pretrial procedure.
- Lawyers are required to make reasonable efforts to expedite litigation consistent with the interests of the client.
- Forwarding fees (sometimes called "referral fees") are expressly permitted not only when they are divided in proportion to services rendered, but also where each participating lawyer merely assumed joint responsibility with the client consenting in writing.
- The rules expressly permit lawyers to advance costs contingent upon outcome of litigation.
- The rules expressly permit a member of a lawyer's firm to be a witness in a trial in which the lawyer is trial counsel.
- Circumstances in which a lawyer may accept employment adverse to a former client are expressly addressed for the first time.
- Considerations in corporation representation, including conflicts that may arise within the organization, are treated directly for the first time.
- The principle of confidentiality between lawyers and clients is expanded from the code's concepts of "confidences" and "secrets" to any information relating to representation.
- The rules expressly permit a lawyer to act as an intermediary between two or more clients in certain circumstances.
- The rules address the separate responsibilities of senior and subordinate lawyers in law firms, and the responsibilities for legal assistants, for the first time.
- For the first time, lawyers are allowed to participate in referral services operated by someone other than local bar associations and The Florida Bar. In other words, they can participate in privately (nonlawyer) operated, for-profit referral services.
IV. Facts and Statistics
The Florida Bar Lawyer Regulation Department
Prepared by The Florida Bar Department of Public Information and Bar Services with assistance by the Lawyer Regulation Department and the Ethics and Advertising Department.