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October 15, 2017
Court declines substitute counsel and limited representation amendments

Proposed procedural rule amendments governing how lawyers enter and leave cases have been rejected by the Supreme Court, although justices said they might be interested in rules tailored specifically for each practice area.

The amendments were submitted by the Rules of Judicial Administration Committee and were intended to mostly address questions related to the use of substitute counsel in cases and also recommendations from the Vision 2016 commission on expanding the use of limited representation attorneys.

Quote With the former, difficulties have arisen because sometimes clients don’t know the substitute attorney is representing them, and it can be difficult for courts to keep track of which attorneys are representing which clients. Sometimes clients disapprove of the substitute attorney or the actions being taken by the substitute attorneys.

The Vision 2016 commission made recommendations on the unbundling of legal services, where attorneys can be hired to work on one specific part of a case for the clients.

The proposed rule would designate an attorney of record for each party in a case and that attorney would be primarily responsible for handling the case. Other attorneys could be listed as co-counsels, including attorneys who would appear for specific times to handle specific issues or hearings. Those attorneys would file notices of appearances and notices of termination with the court and all parties. Those notices also would identify who continues as the attorney of record. The attorney of record could be changed with approval of the court and written consent of the client.

The rules contain provisions to handle notices of limited representation allowed in family law rules and probate rules. The amendments also affected criminal cases, which have special cases when state attorneys, public defenders, and criminal attorneys cover for each other, and for appellate cases.

“The Florida Bar’s Rules of Judicial Administration Committee and the Bar’s Vision 2016 Commission developed the proposed amendments to the Rules of Judicial Administration that modify how counsel appear in a case. The amendments recognize three types of representation by creating the designations of lead counsel (the attorney principally responsible for the representation of a party); additional counsel (coverage and attorneys in a law firm or governmental agency); and limited representation counsel (an attorney for a party or nonparty who provides limited representation). Each type of representation has its own rules for appearance and termination of appearance in a case,” the court opinion noted.

Citing objections raised in filings with the court and oral arguments, the opinion said, “While the attempt to develop one body of comprehensive rules that classifies different types of representation and governs how attorneys appear and terminate an appearance in a case is laudable, we believe more refined rules that address these matters for each of the various practice areas should be considered; and there should be more active involvement of and communication between all the affected rules committees before new proposals are finalized.”

The court also said it was concerned that trying to accommodate the Vision 2016 recommendations on unbundled services into the appearance rule will result “in confusing procedures when there is both a lead and limited representation counsel in a case . . . .”

While the RJAC report expressed concerns about attorneys appearing in cases being recognized as attorneys of record, which allows them online access to case records, the court said, “[A]ttorneys who wish to have remote access to court records in a given case and to ensure proper email service should file a notice of appearance in any case in which they provide representation.”

The court also urged the committee to take that issue up with the Florida Courts Technology Commission and the Florida Court Clerks & Comptrollers.

The court acted unanimously in a per curiam opinion. In a concurring opinion, Justice Alan Lawson expanded on the court’s concern about confusion when a limited representation counsel is engaged in a case where there is already counsel of record. He suggested that could be addressed “by adding another designation for ‘additional special counsel.’

“That designation would apply only when there is already counsel of record and could have its own separate rules that allow the appearance with consent of a sponsoring lead or additional counsel (without the need for a signature by the client). Additional special counsel could then be allowed to withdraw, without leave of court, by filing his or her own notice of withdrawal, or upon notice filed by the sponsoring lead or additional counsel. The additional special counsel designation could also be used to address the practice of ‘coverage counsel’ in criminal cases . . . [T]his approach would appear to address the valid points made by appellate specialists retained to provide litigation assistance, and by criminal practitioners, while still implementing the good work of the Vision 2016 commission aimed at assisting unrepresented litigants.”

The court acted September 7 in In Re: Amendments to the Florida Rules of Judicial Administration, Florida Rule of Criminal Procedure 3.010, and Florida Rule of Appellate Procedure 9.440, Case No. SC16-1062.

[Revised: 02-16-2018]