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BOG: Meeting Summaries – July 2016

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Report from The Florida Bar Board of Governors
The Florida Bar Board of Governors met on July 29, 2016. The major actions of the Board and the reports received included:

The Florida Bar Board of Governors approved amendments to rules regulating for-profit  lawyer referral services that, if approved by the Florida Supreme Court, will:

  • Change the terminology from “lawyer referral service” to “qualifying provider” throughout.
  • Subject any referral or matching service as well as any group or pooled advertising program to the rules (Voluntary Bar Lawyer Referral Services are non-profit and are covered under a different rule – Chapter 8).
  • Delete the requirement that participating lawyers have malpractice insurance, as most Florida Bar members are not required to carry it.
  • Include new explicit prohibitions against requiring or pressuring participating lawyers to make cross referrals, and additional language against stating or implying that the provider is a law firm, can practice law or directly provide legal services.
  • Require services to provide participating lawyers with documentation of compliance with Florida Bar rules.
  • Keep the following requirements: providers must comply with lawyer advertising rules, are prohibited from sharing in legal fees, must refer or match consumers only to those authorized to provide services, must respond to official bar inquiries within 15 days, and are prohibited from stating or implying Florida Bar endorsement.

Enforcement would occur through the Bar’s regulation of the participating lawyers. Developed by the Board of Governors Board Review Committee on Professional Ethics and Technology Committee, the amendments: broaden the application of the rule to cover all referring and matching services to provide the rule more long-term effectiveness; make it easier for Bar members to understand when they can and cannot participate with a provider; include a takedown provision so that participating lawyers can stop participation with a noncomplying provider within 30 days of Florida Bar notice of its noncompliance without fear of sanction; and assist the public by assuring that providers that comply with Bar rules can continue to operate, thereby expanding access to justice. The amendments will be filed with the court on August 15.

The 2016-19 Florida Bar Strategic Plan was approved with specific priorities for the 2016-17 Bar year. Those include using technology to improve the availability of Bar resources and information to Bar members and the public, simplifying the rulemaking process, finding new services and benefits for Bar members, educating Bar members and the public about the upcoming Constitution Revision Commission, improving diversity on judicial nominating commissions with the goal of improving diversity on the bench, and effectively delivering the Bar’s message to its members, the public, and targeted groups.

Amendments to Family Law Rules and to The Rules Regulating The Florida Bar necessary to implement a new state statute on collaborative law were approved. The statute allows divorcing parties to hire attorneys and necessary experts and engage in collaboration to resolve their case. If the collaborative effort fails, the parties would have to retain new attorneys before going to litigation. The procedural and Bar rules now go to the Supreme Court for approval. The law, HB 967, became Chap. 2016-93, Laws of Florida, and provides that parts of F.S. 61.55-61.58 will not become effective until 30 days after the Supreme Court procedural and Bar professional conduct rules are adopted.

Changes allowing inactive lawyers, retired judges, and current or former full-time law professors to register as emeritus attorneys solely for the purpose of handling pro bono cases were approved. The amendments to Chapter 12 and conforming amendments to Rules 1-3.2 and 1-7.5 were recommended by the Florida Commission on Access to Civil Justice and could increase the number of emeritus attorneys from around 46 up to 3,500. The amendments go to the Supreme Court in October.

A proposed new Chapter 21 to Bar rules that would allow lawyer spouses of military personnel stationed in Florida to practice in Florida was discussed. The Florida Bar Military Affairs Committee has outlined in the proposal that those spouses would have to be licensed in another U.S. jurisdiction, take required Basic Skills Courses, and have a clear disciplinary record in other jurisdictions where they are licensed, among other requirements. For more information, check the Aug. 15 Florida Bar News.

The Board Disciplinary Procedures Committee approved unanimously an amendment to Bar Rule 5-1.1 that would allow lawyers to hold IOTA trust accounts in federally insured credit unions, if approved by the Florida Supreme Court. Current rules regulating trust accounts are posted here.

A new committee is looking at developing free automatic trust accounting software for Bar members to help them avoid technical violations of trust accounting rules and resulting disciplinary action. The committee is aiming to have a solution by June 2017. At present, trust accounting and monthly reconciliation forms using Microsoft Excel are available free from The Florida Bar Practice Resource Institute as well as the required compliance notice, FAQS and forms to open IOTA accounts.

Special Committee on Gender Bias/Diversity has been appointed to make recommendations for strategies to meet the challenges highlighted in the recent Young Lawyers Division Women in the Legal Profession survey. The committee includes board and non-board members and will hear from educators and other experts on the issue and plans to make recommendations to Board of Governors.

The Diversity and Inclusion Committee and the Rules of Judicial Administration Committee have been asked to form a special task force to look at the issue of granting extensions in court cases for parental leave. The Diversity and Inclusion Committee passed a resolution saying extensions should be granted unless there are exceptional circumstances, but the Rules of Judicial Administration Committee has twice voted to refer the issue to the circuit and county court judicial conferences to be addressed as a policy rather than a rule.

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[Revised: 08-03-2016]