Skip Navigation

 
The Florida Bar
www.floridabar.org

Florida Procedures for Ruling on Question of Ethics



On This Page

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



1. Application; Scope; And Usage

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 shall not be the basis for action by grievance committees, referees, or the board of governors except upon 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 request therefor that would otherwise be confidential under these rules. Information concerning requests for staff opinions shall be 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.
    Back to Top


    2. Authority To Issue Ethics Opinions

    Ethics counsel and assistant ethics counsel, the professional ethics committee, and the board of governors shall have the authority to issue ethics opinions in the type and manner as 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 shall be identified as "staff opinions." Staff opinions shall be issued only to the members of The Florida Bar in good standing inquiring as to their own contemplated conduct.

      (1) Staff opinions shall 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;
        (B) concerns past conduct of the inquirer;
        (C) involves the conduct of an attorney 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 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 (hereinafter referred to as PEC) may render written opinions, amend existing opinions, or withdraw existing opinions:

      (1) upon appeal of a written staff opinion by the inquiring attorney;
      (2) upon request of the board of governors regarding application of the Rules of Professional Conduct to a particular set of facts;
      (3) upon review of staff opinions by the PEC; or
      (4) upon review of existing advisory ethics opinions by the PEC.

    Opinions of the PEC shall 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) upon appeal of a PEC action; and
      (2) upon 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 shall be identified as advisory ethics opinions.
      Back to Top


      3. Procedures For Issuance Of And Declining To Issue Staff Opinions
        (a) Request for Staff Opinion.

          (1) Oral Staff Opinions. Members in good standing may request an oral staff opinion by calling ethics counsel in Tallahassee, at (800) 235-8619 or (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 shall be confidential as provided elsewhere in these procedures.
          (2) Written Staff Opinions. Members in good standing may request a written staff opinion by writing Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300 or by electronic mail to eto@flabar.org. All requests for written staff opinions shall set forth all operative facts upon 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 shall be confidential as provided elsewhere in these procedures.

        (b) Declining to Issue Staff Opinions. Ethics counsel shall 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 shall not reveal the identity of the inquirer and any other persons or entities involved in the inquiry.

        (d) Appeal to PEC. Members 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 shall be 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 shall be provided to the chair of the PEC who shall assign same to members of the PEC or a subcommittee for determination of the exercise of the PEC’s initiative review.
          Back to Top


          4. Procedure For Issuance Of Pec Opinions

          (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 shall 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 such meeting and any official notice requirements are met.

          (b) Authority of PEC Chair. The chair of the PEC shall have 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. In the event that the PEC decides to consider rendering a written opinion for publication at the request of the board of governors, upon PEC review of staff opinions, or upon PEC review of existing formal opinions, the PEC shall publish in The Florida Bar News an official notice of its intent to consider rendering a written opinion. The notice shall state the time and place at which the PEC’s deliberations will occur and shall invite written comments from interested bar members. Initial publication shall 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 shall 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 shall contain the full text of any revised advisory ethics opinion.

          (d) Comments. Any 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, or official notice that the PEC has revised a proposed advisory ethics opinion.

          All comments filed under this subdivision shall be in the form of written statements with relevant facts, arguments in support, and citations to relevant authority, if any.

          (e) Record on Review. Ethics counsel shall prepare and distribute to the PEC a file on each matter for review. Any person may request and receive a copy of the file. Ethics counsel may charge a reasonable fee for providing copies in accord with established, general bar policies.

            (1) Appeals of Written Staff Opinions. The file shall 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 file shall include the request, relevant material and authorities, any proposed text for consideration, and any timely comments.
            (3) Review of Staff Opinions. The file shall 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 file shall 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 shall 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 shall be published in The Florida Bar News. Notice of the PEC’s actions shall be provided by ethics counsel to:

            (1) Appeals of Written Staff Opinions. The inquiring member who appealed a written staff opinion;
            (2) Requests of Board of Governors. The inquirer, all members who timely commented on a referral from the board of governors and the bar’s executive director;
            (3) Review of Staff Opinions. All members who timely commented on notice of the PEC’s review of staff opinions.
            (4) Review of Existing Advisory Ethics Opinions. All members who timely commented on notice of the PEC’s review of existing advisory ethics opinions.

          (h) Appeal of PEC Action. Any member who timely commented to the PEC and any member who timely appealed a written staff opinion may appeal action of the PEC to the board of governors as provided elsewhere in these procedures.
            Back to Top


            5. Procedure For Review Of Pec Action
              (a) Referral to Board Review Committee on Professional Ethics. Timely appeals from PEC action shall be referred to the Board Review Committee on Professional Ethics (hereinafter BRC).

              (b) Scheduling BRC Review. Timely appeals from PEC action shall 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 such meeting.

              (c) Authority of BRC Chair. The chair of the BRC shall have 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 shall prepare and distribute to the BRC a file on each matter for review. Any person may request and receive a copy of the file. Ethics counsel may charge a reasonable fee for providing copies in accord with established, general bar policies. The file shall 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 shall 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 shall be published in The Florida Bar News. Notice of the board’s actions shall be provided by ethics counsel to the members who timely requested board of governors review.
              Back to Top


              6. Procedure For Issuance Of Board Of Governors Opinions

              (a) Referral to BRC. Board of governors decisions to render an advisory ethics opinion shall be referred to the BRC to develop a specific set of facts upon 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 shall be scheduled for BRC consideration if the decision to consider rendering an opinion is made more than 30 days in advance of such meeting and any official notice requirements are met.

              (c) Authority of BRC Chair. The chair of the BRC shall have 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 shall publish in The Florida Bar News an official notice of its intent to consider rendering a written opinion. The notice shall state the time and place at which the BRC’s deliberations will occur and shall invite written comments from interested bar members. Initial publication shall 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 shall 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 shall contain the full text of any revised advisory ethics opinion.

              (e) Comments. Any 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 shall 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 shall prepare and distribute to the BRC a file on each matter for review. Any person may request and receive a copy of the file. Ethics counsel may charge a reasonable fee for providing copies in accord with established, general bar policies. The file shall contain the statement of facts upon 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 shall 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 shall be published in The Florida Bar News. Notice of the board’s actions shall be provided by ethics counsel to the members who timely filed comments.
              Back to Top


              7. Time For Appeals

              All appeals allowed under these procedures shall be commenced by mailing the required items to Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, 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 shall bar the appeal.

              (revised and adopted by the Board of Governors on May 24, 2002)


              [Revised: 08-24-2011]