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Navigating The Florida Bar’s Retirement Rules

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February 21, 2022

By Susan Healy

What do Michael Jordan, Barbra Streisand, Richard Nixon and Justin Bieber have in common? They all made very public announcements that they were retired, then changed their minds. For Florida Bar members – unlike professional athletes, celebrities and politicians – a return after retirement is not always possible. It is therefore important that lawyers who may be considering retirement understand all their options before they act.

What is “Retirement” Under The Florida Bar Rules?

So long as lawyers pay their annual Bar dues, keep current on their CLE requirements and otherwise meet the definition of members in good standing under Rule 1-3.2(a)(1) of the Rules Regulating The Florida Bar, they remain eligible to practice law. Members in good standing are not considered to be “retired.” They can take a break from practicing law and then come back to it without changing their membership status.

Under The Florida Bar Rules, “retirement” means more than just quitting a job or taking down a shingle. It is a formal process, set forth in Rule 1-3.5, that requires a petition or written request to retire to be submitted for approval by the Executive Director. Instead of receiving a gold watch when the retirement petition is approved, the lawyer becomes ineligible to practice Florida law.

A very limited exception to the prohibition against practicing law allows retired lawyers who meet the requirements of Chapter 12 of the Rules Regulating The Florida Bar to provide pro bono services through the Emeritus Lawyers Pro Bono Participation Program. Not everyone qualifies for the program, so if pro bono service is part of your retirement plan, check the rules before filing your petition.

As this article is being written, there is a proposal to amend Rule 1-3.5 under consideration that would prohibit retired lawyers from holding themselves out as able to practice Florida law unless they are certified as emeritus lawyers. The proposal would also require retired lawyers to affirmatively state their retired status when they indicate Florida Bar membership. This can be difficult. After a lifetime of practicing law, it is more than just what lawyers do, it is who they are. For some, the annual Bar membership fee may be a small price to pay to maintain that professional identity.

Retirement does more than disqualify lawyers from practicing law, it also terminates all aspects of their Florida Bar membership. As a result, members who retire before achieving 50-year member or senior counselor status will not be eligible for recognition.  Retired members also lose access to the member section of The Bar’s website and to the benefits that are available to members in good standing. Rule 1-3.5 allows the Board of Governors to authorize privileges for retired members; however, as of the date of this article, the Board has not authorized any such privileges. As a result, a retired lawyer has the same access to Florida Bar events, programs and information that the general public has, but no more. Again, this can be a factor in making the decision to retire. For many lawyers it can be difficult to abruptly stop their service to the profession and lose the chance to catch up with colleagues at Bar events.

When 50-year recognition and continued participation in the non-practice related aspects of the legal profession are important considerations, a better alternative to retirement may be to opt for inactive status.  Inactive status terminates a member’s ability to practice law and requires disclosure of the lawyer’s inactive status, but otherwise preserves Bar membership in good standing. Unlike retirement, switching to inactive status is an informal process. All it requires is checking a box on the annual dues notice and payment of a reduced fee. Rule 1-3.2(b). Some membership options, such as section memberships, may be affected, so be sure to check whether the benefits that are important to you will be affected before you make any change in your active status.

What if a Retired Lawyer has a Change of Heart?

Whether a retired lawyer will be able to return to membership in good standing and regain the ability to practice law depends on two things: the type of retirement that was requested and the amount of time that has passed since the retirement petition was approved.

Rule 1-3.5 provides for two categories of retirement: “retirement” and “permanent retirement.” The difference is that permanent retirement is indeed “permanent.” A lawyer who has elected permanent retirement is not eligible to apply for either reinstatement or readmission to the Bar.

Lawyers who have a regular (not “permanent”) retirement may petition the Executive Director for reinstatement of membership under Rule 1-3.7 for up to five years after they retire. Five years after retirement, a lawyer becomes ineligible for reinstatement upon petition. However, so long as the retirement was not “permanent,” the lawyer may apply to be readmitted by the Florida Board of Bar Examiners and the Florida Supreme Court. It is hard to imagine that going through the admission process after having been retired from the legal profession for five years or more would be any easier than it was the first time around, but it is an option.

Rule 1-3.7 also provides procedures for reinstatement of inactive members, as well as delinquent members whose way of “retiring” was to just quit paying their annual fees (which is not recommended).

Know the Rules Before Retirement

For many lawyers, keeping the door open for a few years to return to practicing law may help them ease into retirement. Others may welcome the closure that “permanent retirement” offers. In either case, lawyers should continue to exercise their legal skills throughout the retirement process by researching the rules, understanding the consequences and weighing all their options. For your convenience, some of the Rules referenced in this article are set forth below.

RESOURCES AND REFERENCES

Petitions for Retirement and for Removal of Retirement Status

LegalFuel podcast on retiring or going inactive

RULE 1-3.2 MEMBERSHIP CLASSIFICATIONS

(a) Members in Good Standing.

(1) Members of The Florida Bar in good standing means only those persons licensed to practice law in Florida who have paid annual membership fees for the current year and who are not retired, resigned, delinquent, on the inactive list for incapacity, or suspended.

(2) Members of The Florida Bar who have elected inactive status, who have paid annual membership fees for the current year, and who are not retired, resigned, delinquent, suspended, or on the inactive list for incapacity, are considered to be in good standing only for purposes of obtaining a certificate of good standing and for no other purpose. A certificate of good standing issued to an inactive member will reflect the member’s inactive status.

(b) Inactive Members. Inactive members of The Florida Bar means only those members who have properly elected to be classified as inactive in the manner elsewhere provided.

Inactive members will:

(1) pay annual membership fees as set forth in rule 1-7.3;

(2) be exempt from continuing legal education requirements;

(3) affirmatively represent their membership status as inactive members of The Florida Bar when any statement of Florida Bar membership is made;

(4) not hold themselves out as being able to practice law in Florida or render advice on matters of Florida law unless certified as an emeritus lawyer under chapter 12 of these rules;

(5) not hold any position that requires the person to be a licensed Florida lawyer;

(6) not be eligible for certification under the Florida certification plan;

(7) not vote in Florida Bar elections or be counted for purposes of apportionment of the board of governors;

(8) certify on election of inactive status that they will comply with all applicable restrictions and limitations imposed on inactive members of The Florida Bar, unless certified as an emeritus lawyer under chapter 12 of these rules.

Failure of an inactive member to comply with all these requirements is cause for disciplinary action.

An inactive member may, at any time, apply for reinstatement to active membership in good standing to become eligible to practice law in Florida in the manner provided in rule 1-3.7.

RULE 1-3.5 RETIREMENT

Any member of The Florida Bar may retire from The Florida Bar upon petition or other written request to, and approval of, the executive director. A retired member shall not practice law in this state except upon petition for reinstatement to, and approval of, the executive director; the payment of all membership fees, costs, or other amounts owed to The Florida Bar; and the completion of all outstanding continuing legal education or basic skills course requirements. A member who seeks and is approved to permanently retire shall not be eligible for reinstatement or readmission. A retired member shall be entitled to receive such other privileges as the board of governors may authorize.

A retired member shall remain subject to disciplinary action for acts committed before the effective date of retirement. Acts committed after retirement may be considered in evaluating the member’s fitness to resume the practice of law in Florida as elsewhere stated in these Rules Regulating The Florida Bar.

If the executive director is in doubt as to disposition of a petition, the executive director may refer the petition to the board of governors for its action. Action of the executive director or board of governors denying a petition for retirement or reinstatement from retirement may be reviewed upon petition to the Supreme Court of Florida.

RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP

(a) Eligibility for Reinstatement. Members who have retired or been delinquent for a period of time not in excess of 5 years are eligible for reinstatement under this rule. Time will be calculated from the day of the retirement or delinquency.  Inactive members may also seek reinstatement under this rule.

(b) Petitions Required. A member seeking reinstatement must file a petition with the executive director setting forth the reason for inactive status, retirement, or delinquency and showing good cause why the petition for reinstatement should be granted. The petitioner must include all required information on a form approved by the board of governors. The petition must be accompanied by a nonrefundable reinstatement fee of $150 and payment of all arrearages unless adjusted by the executive director with concurrence of the executive committee for good cause shown. Inactive members are not required to pay the reinstatement fee. No member will be reinstated if, from the petition or from investigation conducted, the petitioner is not of good moral character and morally fit to practice law or if the member is delinquent with the continuing legal education or basic skills course requirements. If the executive director is in doubt as to approval of a petition, the executive director may refer the petition to the board of governors for its action. Action of the executive director or board of governors denying a petition for reinstatement may be reviewed on petition to the Supreme Court of Florida.

(c) Members Who Have Retired or Been Delinquent for Less Than 5 Years, But More Than 3 Years. Members who have retired or been delinquent for less than 5 years, but more than 3 years, must complete 11 hours of continuing legal education courses for each year or portion of a year that the member had retired or was deemed delinquent.

(d) Members Who Have Retired or Been Delinquent for 5 Years or More. Members who have retired or have been deemed delinquent for a period of 5 years or longer will not be reinstated under this rule and must be readmitted upon application to the Florida Board of Bar Examiners and approval by the Supreme Court of Florida.

(e) Members Who Have Permanently Retired. Members who have permanently retired will not be reinstated under this rule.

(f) Members Delinquent 60 Days or Less. Reinstatement from delinquency for payment of membership fees or completion of continuing legal education or basic skills course requirements approved within 60 days from the date of delinquency is effective on the last business day before the delinquency. Any member reinstated within the 60-day period is not subject to disciplinary sanction for practicing law in Florida during that time.

(g) Inactive Members. Inactive members may be reinstated to active membership in good standing to become eligible to practice law in Florida by petition filed with the executive director, in the form and as provided in (b) above, except:

(1) If the member has been inactive for greater than 5 years, has been authorized to practice law in another jurisdiction, and either actively practiced law in that jurisdiction or held a position that requires a license as a lawyer for the entire period of time, the member will be required to complete the Florida Law Update continuing legal education course as part of continuing legal education requirements.

(2) If the member has been inactive for greater than 5 years and does not meet the requirements of subdivision (1), the member will be required to complete the basic skills course requirement and the 33- hour continuing legal education requirement.

(3) An inactive member is not eligible for reinstatement until all applicable continuing legal education requirements have been completed and the remaining portion of membership fees for members in good standing for the current fiscal year have been paid.