1. Application; Scope; And Usage
2. Authority To Issue Ethics Opinions
3. Procedures For Issuance Of And Declining To Issue Staff Opinions
4. Procedure For Issuance Of Pec Opinions
5. Procedure For Review Of Pec Action
6. Procedure For Issuance Of Board Of Governors Opinions
7. Time For Appeals
These procedures are adopted pursuant to rule 2-9.4, Rules Regulating The Florida Bar, and govern the manner in which ethics opinions are issued and reviewed by The Florida Bar. These procedures do not apply to review of lawyer advertisements.
Staff opinions, professional ethics committee opinions, and opinions of the board of governors are advisory only and are not the basis for action by grievance committees, referees, or the board of governors except on application of the respondent in disciplinary proceedings. If a respondent’s defense includes reliance on the receipt of a staff opinion, ethics counsel may release to the bar counsel, grievance committee, referee, or board of governors information concerning the opinion or the opinion request that would otherwise be confidential under these rules. Information concerning requests for staff opinions is confidential, except as otherwise provided in bylaw 2-9.4 and these procedures. If public statements are made by the inquirer about any advisory opinion or opinion request, confidentiality of the request and the opinion is waived and ethics counsel may disclose the opinion and information relating to the request.
The advisory opinion process should not be used to circumvent procedures to adopt or amend Rules Regulating The Florida Bar.
Ethics counsel and assistant ethics counsel, the professional ethics committee, and the board of governors have the authority to issue ethics opinions in the type and manner set forth in these procedures.
(a) Ethics Counsel and Assistant Ethics Counsel. Ethics counsel and assistant ethics counsel may render oral and written opinions that will be identified as “staff opinions.” Staff opinions may be issued only to the members of The Florida Bar in good standing and lawyers admitted in other jurisdictions who are authorized by other law to provide legal services in Florida inquiring as to their own contemplated conduct.
(1) Staff opinions will not be issued if it is known to staff that the inquiry:
(A) is made by a person who is not a member of The Florida Bar in good standing or is not a lawyer admitted in another jurisdiction who is authorized to provide legal services in Florida;
(B) concerns past conduct of the inquirer;
(C) involves the conduct of a lawyer other than the inquirer;
(D) asks a question of law;
(E) asks a question of rule or court procedure; or
(F) is the subject of a disciplinary proceeding brought under the Rules Regulating The Florida Bar.
(2) Staff may decline to issue an opinion if the inquiry:
(A) is the subject of current litigation; or
(B) asks a question for which there is no previous precedent or underlying bar policy on which to base an opinion.
(b) Professional Ethics Committee. The professional ethics committee (PEC) may render written opinions, amend existing opinions, or withdraw existing opinions on:
(1) appeal of a written staff opinion by the inquiring lawyer;
(2) request of the board of governors regarding application of the Rules of Professional Conduct to a particular set of facts that is likely to be of widespread interest or unusual importance to a significant number of Florida Bar members;
(3) review of staff opinions by the PEC; or
(4) review of existing advisory ethics opinions by the PEC.
Opinions of the PEC will be identified as advisory ethics opinions.
(c) Board of Governors. The board of governors may render written opinions, amend existing opinions, or withdraw existing opinions:
(1) on appeal of a PEC action; and
(2) on its own initiative when the board of governors determines that the application of the Rules of Professional Conduct to a particular set of facts is likely to be of widespread interest or unusual importance to a significant number of Florida Bar members.
Opinions of the board of governors will be identified as advisory ethics opinions.
(a) Request for Staff Opinion.
(1) Oral Staff Opinions. Members of the bar in good standing and lawyers admitted in other jurisdictions who are authorized by other law to provide legal services in Florida may request an oral staff opinion by calling ethics counsel in Tallahassee, at 1-800-235-8619 or 1-850-561-5780. Oral opinions may be confirmed in writing only in accord with the procedures for issuance of written staff opinions. All information relating to the request for an oral staff opinion is confidential as provided elsewhere in these procedures.
(2) Written Staff Opinions. Members of the bar in good standing and lawyers admitted in other jurisdictions who are authorized house counsel and foreign legal consultants in good standing whose status can be verified by records maintained by The Florida Bar may request a written staff opinion by writing Ethics Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300 or by electronic mail. All requests for written staff opinions must set forth all operative facts on which the request is based and contain an affirmative statement that the criteria of procedure 2(a) are met. All material and information relating to the request for a written staff opinion is confidential as provided elsewhere in these procedures.
(b) Declining to Issue Staff Opinions. Ethics counsel must decline to issue a staff opinion if any criteria of procedure 2(a)(1) apply. Ethics counsel may decline to issue a staff opinion if any criteria of procedure 2(a)(2) apply.
(c) Form for Written Staff Opinion. Written staff opinions will not reveal the identity of the inquirer and any other persons or entities involved in the inquiry.
(d) Appeal to PEC. Members of the bar in good standing and lawyers admitted in other jurisdictions who are authorized house counsel and foreign legal consultants in good standing whose status can be verified by records maintained by The Florida Bar requesting a written staff opinion may appeal the opinion or the decision not to issue the opinion to the PEC as provided elsewhere in these procedures. Appeals to the PEC are public information. Oral staff opinions and decisions not to issue an oral opinion may not be appealed.
(e) Monitoring Written Staff Opinions. A copy of each written staff opinion will be provided to the chair of the PEC who will assign them to members of the PEC or a subcommittee for determination of the exercise of the PEC’s initiative review.
(a) Scheduling PEC Review. Timely appeals, requests of the board of governors, PEC review of staff opinions, and PEC review of existing advisory ethics opinions will be scheduled for PEC consideration at the next meeting of the PEC if the appeal, request, or review is made more than 30 days in advance of the meeting and any official notice requirements are met.
(b) Authority of PEC Chair. The chair of the PEC has the discretion to determine the order of the agenda, time allocated to each matter, and whether personal appearances may be allowed. In addition, the chair may appoint a subcommittee to conduct the review.
(c) Notice of PEC Review.
(1) Adoption and Modification of Opinions. In the event that the PEC decides to consider rendering a written opinion for publication at the request of the board of governors, on PEC review of staff opinions, or on PEC review of existing formal opinions, the PEC must publish in The Florida Bar News an official notice of its intent to consider rendering a written opinion. The notice must state the time and place at which the PEC’s deliberations will occur and invite written comments from interested bar members in good standing. Initial publication must identify the subject matter of the issue and any proposed text, if then available, and invite written comment. If an opinion is issued, the PEC must publish an official notice of the adoption of the advisory ethics opinion in The Florida Bar News, including the full text of the opinion. Any subsequent notice must contain the full text of any revised advisory ethics opinion.
(2) Withdrawal of Opinions. In the event that the PEC decides to consider withdrawing an advisory ethics opinion, the PEC must publish in The Florida Bar News an official notice of its intent to consider withdrawing the advisory ethics opinion. The notice must state the time and place at which the PEC’s deliberations will occur, summarize the advisory ethics opinion, and invite written comments from interested bar members in good standing.
(d) Comments. Any bar member in good standing may file written comment with ethics counsel within 30 days of the date of publication of official notice of the PEC’s intent to consider rendering a proposed advisory opinion, official notice of the PEC’s adoption of an advisory ethics opinion, official notice that the PEC has revised a proposed advisory ethics opinion, or official notice that the PEC intends to withdraw an advisory ethics opinion.
All comments filed under this subdivision must be in the form of written statements with relevant facts, arguments in support, and any citations to relevant authority.
(e) Record on Review. Ethics counsel will prepare and distribute to the PEC an agenda listing each matter for review. Any person may request and receive a copy of the agenda. Ethics counsel may charge a reasonable fee for providing copies in accord with established, general bar policies.
(1) Appeals of Written Staff Opinions. The agenda item will include the original request for the opinion, the written staff opinion, and the written request for PEC review.
(2) Requests of Board of Governors. The agenda item will include the request, relevant material and authorities, any proposed text for consideration, and any timely comments.
(3) Review of Staff Opinions. The agenda item will include the original request for the opinion, the written staff opinion, and the written request for PEC review.
(4) Review of Existing Advisory Ethics Opinions. The agenda item will include the existing advisory ethics opinion, relevant material and authorities, and the written request for PEC review.
(f) PEC Action. By majority vote of those present, the PEC may:
(1) Appeals of Written Staff Opinions.
(A) affirm the opinion, in whole or in part;
(B) reverse the opinion, in whole or in part;
(C) return the opinion to ethics counsel with instructions as to redrafting; or
(D) determine to issue, amend, or withdraw an advisory ethics opinion.
(2) Requests of Board of Governors.
(A) decline to issue an advisory ethics opinion;
(B) agree to issue, amend, or withdraw an advisory ethics opinion; or
(C) provide informal information or comments to the inquirer.
(3) Review of Staff Opinions.
(A) affirm the opinion, in whole or in part;
(B) reverse the opinion, in whole or in part;
(C) return the opinion to ethics counsel with instructions as to redrafting; or
(D) determine to issue, amend, or withdraw an advisory ethics opinion.
(4) Review of Existing Advisory Ethics Opinions.
(A) affirm the advisory ethics opinion, in whole or in part;
(B) reverse the advisory opinion, in whole or in part; or
(C) determine to issue, amend, or withdraw an advisory ethics opinion.
(g) Notice of PEC Action. Notice of PEC action will advise about the procedures for requesting review by the Board Review Committee on Professional Ethics. Notice of PEC action regarding formal opinions of the PEC will be published in The Florida Bar News. Notice of the PEC’s actions will be provided by ethics counsel to:
(1) Appeals of Written Staff Opinions. The inquirer who appealed a written staff opinion;
(2) Requests of Board of Governors. The inquirer, all bar members who timely commented on a referral from the board of governors and the bar’s executive director;
(3) Review of Staff Opinions. All bar members who timely commented on notice of the PEC’s review of staff opinions.
(4) Review of Existing Advisory Ethics Opinions. All bar members who timely commented on notice of the PEC’s review of existing advisory ethics opinions.
(h) Appeal of PEC Action. Any bar member in good standing who timely commented to the PEC and any inquirer who properly and timely appealed a written staff opinion may appeal action of the PEC to the board of governors as provided elsewhere in these procedures.
(a) Referral to Board Review Committee on Professional Ethics. Timely appeals from PEC action will be referred to the Board Review Committee on Professional Ethics (BRC).
(b) Scheduling BRC Review. Timely appeals from PEC action will be scheduled for BRC consideration at the next meeting of the BRC if the appeal or request is made more than 30 days in advance of the meeting.
(c) Authority of BRC Chair. The chair of the BRC has the discretion to determine the order of the agenda, time allocated to each matter, and whether personal appearances may be allowed. In addition, the chair may appoint a subcommittee to conduct the review.
(d) Record on Review. Ethics counsel will prepare and distribute to the BRC an agenda item on each matter for review. Any person may request and receive a copy of the agenda item. Ethics counsel may charge a reasonable fee for providing copies in accord with established, general bar policies. The agenda item will include the record before the PEC and the request for BRC review.
(e) BRC Action. By majority vote of those present, the BRC may:
(1) affirm the PEC action, in whole or in part;
(2) reverse the PEC action, in whole or in part; or
(3) return the matter to the PEC with instructions as to redrafting.
(f) Review of BRC Action. The BRC will report its actions to the board. By majority vote of those present, the board may:
(1) affirm the PEC action, in whole or in part;
(2) reverse the PEC action, in whole or in part; or
(3) return the matter to the PEC with instructions as to redrafting.
(g) Notice of Board of Governors Action. Notice of board of governors action regarding formal advisory opinions will be published in The Florida Bar News. Notice of the board’s actions will be provided by ethics counsel to the bar members who timely requested board of governors review.
(a) Referral to BRC. Board of governors decisions to render an advisory ethics opinion will be referred to the BRC to develop a specific set of facts on which the opinion will be based, comply with notice provisions in this procedure, and adopt a written advisory opinion applying the Rules of Professional Conduct to the set of facts.
(b) Scheduling BRC Review. Advisory ethics opinions will be scheduled for BRC consideration if the decision to consider rendering an opinion is made more than 30 days in advance of the meeting and any official notice requirements are met.
(c) Authority of BRC Chair. The chair of the BRC has the discretion to determine the order of the agenda, time allocated to each matter, and whether personal appearances may be allowed. In addition, the chair may appoint a subcommittee to conduct the review.
(d) Notice of BRC Opinion. In the event that the board of governors refers an issue to the BRC to render a written opinion for publication, the BRC must publish in The Florida Bar News an official notice of its intent to consider rendering a written opinion. The notice must state the time and place at which the BRC’s deliberations will occur and invite written comments from interested bar members in good standing. Initial publication must identify the subject matter of the issue and any proposed text, if then available, and invite written comment. If an opinion is issued, the BRC must publish an official notice of the adoption of the advisory ethics opinion in The Florida Bar News, including the full text of the opinion. Any subsequent notice must contain the full text of any revised advisory ethics opinion.
(e) Comments. Any bar member in good standing may file written comment with ethics counsel within 30 days of the date of publication of official notice of the BRC’s intent to consider rendering a proposed advisory opinion, official notice of the BRC’s adoption of an advisory ethics opinion, or official notice that the BRC has revised a proposed advisory ethics opinion.
All comments filed under this subdivision must be in the form of written statements with relevant facts, arguments in support, and citations to relevant authority, if any.
(f) Record on Review. Ethics counsel will prepare and distribute to the BRC an agenda item on each matter for review. Any person may request and receive a copy of the agenda item. Ethics counsel may charge a reasonable fee for providing copies in accord with established, general bar policies. The agenda item will contain the statement of facts on which the proposed advisory opinion will be made, relevant material and authorities, and the text of the proposed advisory opinion, if then available.
(g) BRC Action. By majority vote of those present, the BRC may:
(1) determine to issue an opinion; or
(2) determine not to issue an opinion.
(h) Review of BRC Action. The BRC will report its actions to the board. By majority vote of those present, the board may:
(1) affirm the BRC action, in whole or in part;
(2) reverse the BRC action, in whole or in part; or
(3) return the matter to the BRC with instructions as to redrafting.
(i) Notice of Board of Governors Action. Notice of board of governors action regarding formal advisory opinions will be published in The Florida Bar News. Notice of the board’s actions will be provided by ethics counsel to the inquirer who timely requested board of governors review and to any bar members in good standing who timely filed comments.
All appeals allowed under these procedures are commenced by mailing the required items to Ethics Counsel, The Florida Bar, 651 East Jefferson St., Tallahassee, Florida 32399-2300, within 30 days of the date on the notice of the action that is the subject of the appeal. Failure to timely commence an appeal bars the appeal.
[Revised by the Florida Board of Governors on December 6, 2019]
