Board of Governors Meeting Preview – December 2023

The following items are up for action or discussion at the December 1, 2023, meeting of the Board of Governors; changes may occur before the meeting. Please contact your board representative(s) if you have any input or questions.

The board will consider a proposal from the Special Committee on AI Tools & Resources with several rule amendments to alert Florida lawyers to their responsibilities regarding AI, including:

• Bar Rule 4-1.1 (Competence) making it clear that a lawyer’s understanding of the benefits and risks associated with the use of technology “includes generative artificial intelligence.”
• Bar Rule 4-1.6 (Confidentiality of Information) adding a warning to a portion of the commentary subtitled “Acting Competently to Preserve Client Confidentiality.” The proposed sentence states, “For example, a lawyer should be aware that generative artificial intelligence may create risks to the lawyer’s duty of confidentiality.”
• Bar Rule 4-5.3 (Responsibilities Regarding Nonlawyer Assistants) adding a sentence to the first paragraph of the comment that states, “A lawyer should also consider safeguards when assistants use technologies such as artificial intelligence” and within the first paragraph under the heading “Nonlawyers Outside the Firm,” adds “using generative artificial intelligence.”
• Bar Rule 4-5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers) adding a sentence to the second paragraph of the comment that states, “consider safeguards for the firm’s use of technologies such as generative artificial intelligence.”

Read The Florida Bar News for additional details.

The board will be considering whether to affirm or reverse a Professional Ethics Committee decision that a law firm “may not ethically identify a nonlawyer as the firm’s ‘Chief Executive Officer’ (CEO), despite limitations on the nonlawyer’s authority.” The inquiring firm asserted that the nonlawyer CEO would report to the firm’s supervising partner, would not have a policymaking function, would not supervise the practice of law, and would be paid a salary and bonuses unconnected to the law firm’s profits.

The board will also be making special appointments to the Supreme Court Judicial Nominating Commission, the 11th Circuit Judicial Conference (Middle District), the Florida Realtor-Attorney Joint Committee, and the Florida Rural Legal Services Inc. Board of Directors.

In other business, the board will be asked to consider:

• Proposed amendments to the Preamble to Chapter 4, and Bar Rule 4-1.3 (Diligence). Removes references to “zeal, zealous, and zealously” from commentary, and adds a new comment explaining the historic change. The Real Property, Probate & Trust Law Section’s Professionalism and Ethics Committee has argued that “Z” words have been used to excuse bad lawyer behavior and that they carry a negative connotation.
• A proposed amendment to Bar Rule 4-4.4 (Respect for Rights of Third Persons). The Board Review Committee on Professional Ethics proposed amendment is meant to “expressly prohibit a lawyer from threatening to make or threatening to assist a client in making false social media posts as leverage in civil litigation,” according to a staff analysis.
• Comments to and potential adoption of Proposed Advisory Opinion 23-1. Proposed Advisory Opinion 23-1 addresses whether a Florida lawyer may be a passive investor in an “alternative business structure” that provides legal services in another state but does not maintain any presence in Florida or provide Florida legal services.