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December 1, 2017
Court amends Florida Bar rules

Changes allow retired members to provide pro bono

Bar rules encouraging inactive and retired lawyers to provide pro bono service and specifying that lawyers who have voluntarily chosen inactive status remain “members in good standing” have been approved by the Supreme Court. The court also approved a new certified practice area for international litigation and arbitration.

But the court, acting November 9 on the Bar’s biennial rules petition, rejected another rule intended to comply with a federal court ruling that allows lawyers who are not certified to advertise themselves as specialists or experts. The court said that rule needed more work.

The court also tweaked conflict of interest rules dealing with gifts from clients and updated rules on prohibited direct contact with potential clients.

The court’s Commission on Access to Civil Justice had recommended that inactive members be allowed to register as emeritus attorneys under Bar rules and then be able, as part of a legal aid program, to offer pro bono services. The court amended two rules, 1-3.2 and 12-1.2, dealing with inactive members and with emeritus attorneys, to accommodate that request.

The commission hopes the change will generate a surge of pro bono volunteers.

The amendment won praise from Florida Bar Foundation President Jewel White.

Jewel White “These amendments to the emeritus rule remove barriers for many lawyers who might be inclined to do pro bono work,” White said. “This will enable and encourage more attorneys, including law professors, in-house counsel, and retired folks, to give back through volunteering. Our director of pro bono partnerships, Ericka Garcia, will work with The Florida Bar Standing Committee on Pro Bono Legal Services and the Florida Commission on Access to Civil Justice to ensure that these attorneys are aware of the amendments and of the many pro bono opportunities that await them.”

Inactive Members
At the same time, the court approved an amendment to Rule 1-3.2 specifying that inactive members who voluntarily chose that status remain members in good standing with the Bar, although they still may not practice law except as allowed for pro bono. That change allows inactive members who are applying for membership in another state bar to obtain a certificate in good standing from the Bar.

The changes to emeritus attorney rules also provide that retired judges and current or former law professors may register as emeritus attorneys to provide pro bono services. Several other related changes were made to the emeritus rules in Chapter 12.

International Litigation and Arbitration Certification
Amendments to Chapter 6 create the new certification area of international litigation and arbitration. The Bar will have a notice in the December 15 Bar News seeking applicants for the initial certification committee for that area, which will prepare the required certification exam. It becomes the 27th area covered in the Bar’s certification program.

Another change to Chapter 6 allows certified lawyers to choose inactive certification status if they are judges, law professors, active duty military personnel, or are arbitrators or mediators.

Experts
The court rejected a proposed amendment to 4-7.14. In response to a federal court ruling, it provided that lawyers who are not certified could advertise themselves as specialists or experts in a field of law if they essentially met all the requirements for certification. The original rule prohibits lawyers who are not certified from holding themselves out as experts or specialists.

The federal ruling held that violates the First Amendment, since uncertified lawyers could be just as qualified as certified lawyers, and they could also not say they were experts or specialists in practice areas for which there is no certification offered.

“We are concerned that the Bar’s proposal here does not sufficiently address the district court’s decision, and that the language requiring that a lawyer’s experience be ‘reasonably comparable’ to the Florida Certification Plan will prove to be problematic because it could lead to differing and inconsistent applications,” the court said in its unanimous per curiam opinion. “Because we believe that this important issue requires further study, we decline to adopt the Bar’s proposed amendments to Rule 4-7.14, and we refer this matter to The Florida Bar for additional consideration.”

Conflicts of Interest
On conflict of interest, the court approved the Bar’s suggested change to Rule 4-1.8 from banning lawyers from soliciting any gift from a client for themselves or relatives to banning preparing any instrument that gives lawyers or their family members a gift from a client, a change from the current rule that bans soliciting or preparing an instrument giving a substantial gift. The request came from the Bar’s Real Property, Probate and Trust Law Section.

Contact With Clients
On direct contact with clients, the court approved the Bar’s amendments to Rule 4-7.18 to codifying the prohibition on lawyers contacting potential clients via any electronic real-time face-to-face communication, such as Skype, but dropping written communications such as fax and telegram as long as they meet direct mail requirements. The court also approved modifications to require an “advertisement” mark on each separate enclosure of permitted written communications to potential clients instead of the current requirement on each page or panel.

Other Changes
Other minor changes affect the foreign legal consultant rule, unlicensed practice of law rules, authorized house counsel, and the Florida Registered Paralegal rules.

The complete opinion and list of changes is in In Re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), Case No. SC16-1961. The court also approved minor housekeeping rule changes in an accompanying case, In Re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition Housekeeping), Case No. SC16-1962. The changes are effective February 1.

[Revised: 12-18-2017]