Board of Governors moves rule that would allow 'limited appearance attorneys'
Scott Westheimer
The Board of Governors, in keeping with a recent focus on expanding court access, has signed off on a proposed new court rule authorizing “limited appearance attorneys.”
Meeting March 3, the board voted overwhelmingly to recommend acceptance of a Civil Procedure Rules Committee proposal to adopt new Rule 1.041 (Limited Appearance Attorneys).
“This is something we should be doing to promote access,” said President-elect Scott Westheimer.
Westheimer reminded the board that the Supreme Court’s Special Committee to Improve the Delivery of Legal Services recommended better promotion of a Florida Bar rule that authorizes “unbundled legal services” in 2021.
Proposed Civil Procedure Rule 1.041 would state, in part, “An attorney may file a notice of limited appearance specifically limiting the attorney’s appearance to particular proceedings or specified matters.”
Proposed subdivisions would require the limited appearance attorney to notify all parties of such things as the scope of his or her representation, and the hearings that he or she will not be attending because they are outside of that scope.
Board liaison Michael Orr said the Civil Procedure Rules Committee voted 34-0 to recommend the proposed rule after a “robust” debate.
“There was a discussion about whether or not, in civil cases, we could sanction lawyers to come in on a limited basis,” he said.
Orr noted that the Vision 2016 commission recommended the proposed court rule— but thought there should first be a Rule of General Practice and Judicial Administration.
Rule of General Practice and Judicial Administration 2.505 (e)(5) subsequently authorized limited appearance attorneys, but only “as permitted by another court rule,” Orr said.
A proposed subdivision (e) would require that termination of the limited appearance be “in accordance with Florida Rule of General Practice and Judicial Administration 2.505.”
The Supreme Court will make the final determination.
In other business, the board voted overwhelmingly to recommend acceptance of Family Law Rules Committee proposed amendments to Rule 12.140 (Responses).
The proposed amendments would add a subdivision (g) that addresses procedures for striking “sham” or “frivolous” pleadings. The proposal would remove Rule 12.150 (Sham Pleadings) in its entirety. The Supreme Court would make the final determination.
Fourth Judicial Circuit Magistrate Kristi Beth Luna, a Family Law Rules Committee member, told the board that the proposal is a response to recommendations from the Supreme Court’s Workgroup on Sanctions for Sham and Vexatious Litigation.
“We were tasked at looking at changes that might increase sanctions,” Luna said. “We were trying to give a little more structure…to how we get these issues addressed.”
Jeff Rynor
Board Liaison Jeff Rynor praised the committee’s dedication.
“There was a lot of work that went into this,” Rynor said.
In other business, the board voted, after a long discussion, to amend a Disciplinary Procedure Committee proposed comment to a February 8 Supreme Court order.
Acting on its own motion, the Supreme Court proposed amendments to Bar Rule 3-5.2 that would allow a felony charge against a lawyer to “constitute clear and convincing evidence that the lawyer’s continued practice of law would cause great public harm.”
The proposed amendments would allow the emergency suspension of lawyers facing felony charges reflecting adversely on the lawyer’s fitness to practice law. The Disciplinary Procedure Committee proposed a comment in which the Bar would take no position — but requested that if justices adopt the amendments, the court add language clarifying that the triggering event would be the filing of an information or indictment in state or federal court consistent with an earlier Court request to the bar.
The board voted instead to file a comment opposing the proposed amendments. The comment would also ask justices that if they adopt the proposed amendment, they add the Bar’s suggested language.
Several board members said they were concerned the Supreme Court proposal would violate an attorney’s due process rights.
Board member Michael Gelfand urged his colleagues to weigh the matter carefully, noting that If a prosecutor told a jury that a defendant is guilty because he was arrested, it would cause a mistrial.
“This is contrary to everything that we learned about due process,” Gelfand said.
Board member Brian Burgoon said he agreed.
“I think we should be adamant that we oppose this change,” he said.
Veteran Miami-Dade Public Defender Carlos Martinez, a non-voting board liaison, called the proposed amendments “a bridge too far.”
“This makes a mockery of the presumption of innocence, completely,” he said.
But others urged restraint.
Board member Braxton Gilliam said any objection should be careful not to “blur the line” between due process, the privilege to practice law, and the Supreme Court’s responsibility to protect the public.
In other business, the board:
- Voted to add “eNotaryLog,” the remote, online notarization and electronic signature solutions, to The Florida Bar Member Benefits Program.
- Voted to appoint former 12th Judicial Circuit Judge Kimberly C. Bonner, who stepped down in September after serving nearly two decades, to the board that oversees Florida Rural Legal Services, Inc.
