Board of Governors sets agenda for its September 8 meeting
When it meets September 8, the Board of Governors is scheduled to consider a host of proposed rule amendments, some prompted by a recent Supreme Court order revising minimum CLE requirements.
Another set of proposed amendments would scrub so-called “Z” words – “zeal,” “zealous,” and “zealously,” — from the Bar rule book.
Among a host of proposed revisions on the agenda is a Rules Committee proposal to amend Rule 21-3.1 (Continuing Legal Education).
The proposal is a technical change that would impact members returning to the profession.
“These amendments are made to lower the pro rata continuing legal education hours for reinstatement…,” according to a staff analysis.
But the proposed revisions are a reminder that new CLE requirements will begin to take effect next year as a result of a July 6 Supreme order, “In Re: Code for Resolving Professionalism Referrals and Amendments to Rule Regulating The Florida Bar 6-10.3,” SC2023-0884.
Responding to a Bar special committee’s recommendations for enhancing legal professionalism, justices adopted a new Code for Resolving Professionalism Referrals and amended the Professionalism Expectations.
A third component of the order amends Bar Rule 6-10.3 (Minimum Continuing Legal Education Standards).
On its own motion, the court reduced the hours a lawyer must earn every three-year reporting cycle, from 33 to 30. Justices noted the reduction restores the initial requirement when the Supreme Court first imposed mandatory CLE in 1987 and aligns lawyers with a continuing education requirement for judges.
Bar members will begin to feel the impact in January 2024.
“The important thing for lawyers to know is the effective date of the order is January 8, 2024,” Bar Programs Division Director Terry Hill said last month. “There will be lots of communication, lots of reminders.” See Florida Bar story here.
In other business, the board will consider — on first-reading only – a Real Property, Probate & Trust Law Section proposal to remove references to “zealous” from the Bar rule book.
At a July 27 meeting in Sarasota, the Rules Committee voted unanimously to approve the revisions, which are drawn to Chapter 4 Rules of Professional Conduct.
The board could take final action later this year at a December 1 meeting in Destin. The Supreme Court would have the final say.
Tampa Lawyer Larry Miccolis told the Rules Committee in July that the RPPTL’s Professionalism and Ethics Committee formed a subcommittee in April of last year to study the issue.
“There were a number of us that felt that the terms zeal, zealous, zealous advocacy, as they apply to our professional rules, should be at a minimum questioned,” he said.
Miccolis was quick to credit Professionalism and Ethics Chair Andy Sasso with spearheading the proposal.
The RPPTL subcommittee took a very “structured approach,” to its review, Miccolis said.
“We looked at the term’s etymology, the history of the terms, caselaw, other states’ jurisdictional rules,” he said. “Z terms have a long history. But today, we found that there is more often a negative treatment associated with negative behaviors and labels.”
The proposed amendments would remove “Z-word” references from the Preamble to Chapter 4 and comment to Rule 4-1.3 – and add a comment that offers an historical perspective.
Under the proposal, a sentence in the Preamble, “As an advocate, a lawyer zealously asserts the client’s position under the rules of the adversary system,” would instead state, “As an advocate, a lawyer asserts the client’s position with commitment and dedication to the interest of the client under the rules of the adversary system.”
Another sentence in the Preamble, “Zealous advocacy is not inconsistent with justice,” would instead state, “Commitment and dedication in advocacy are not inconsistent with justice.”
A proposed new comment would appear in the Preamble under the subheading, “Conduct.”
It would state, in part, “All prior references in this chapter to a lawyer’s duty to act zealously, as a zealous advocate, or with zeal upon the client’s behalf, have been removed. Zealous advocacy has been invoked in the legal profession as an excuse for unprofessional behavior.”
In a Bar News interview last year, Sasso said the project was inspired, in part, by lawyers who defend unprofessional behavior by pointing to “zealous advocacy” references in the rules.
The proposed comment refers to a 2000 Supreme Court decision, The Florida Bar v. Buckle, in which the justices wrote, “we must never permit a cloak of zealous advocacy to conceal unethical behavior.”
In other action, the board is expected to receive updates on two newly formed panels, a “Special Committee on Artificial Intelligence Tools & Resources,” and a “Committee on Cybersecurity and Privacy Law.”
President Scott Westheimer formed the panels in May to help Florida Bar members keep abreast of the latest trends.
“Technology has changed everything we do, and it keeps progressing,” Westheimer said.
The Board Technology Committee, which will coordinate the activities of the panel, is scheduled to deliver an update.
In addition to board members and academics, the AI committee includes lawyers from across the state and diverse practice areas, a legal technology consultant, the chair of Florida’s Public Service Commission, and a circuit judge who serves on the Florida Courts Technology Commission.
At its first meeting in July, Co-Chair Gordon Glover said the panel will focus initially on two general areas – lawyer regulation and court-related proceedings – before refining its mission, making assignments, and establishing deadlines.
The cybersecurity committee’s mission includes facilitating “attorney awareness of cyber risks on a continuing basis,” and creating “best practices” guides for Bar members.
Considered a panel of technical experts, the cybersecurity committee is co-chaired by Steven Teppler and Franklin Zemel, both attorneys whose practice areas focus on cybersecurity. The committee holds its first meeting August 24.
In other action, the board is expected to:
- Recommend two attorneys to fill vacancies on the Supreme Court Judicial Nominating Commission.
- Consider a proposed amendment to Standing Board Policy 9.10 (Authority). The proposed revision would make it clear the policy applies to voluntary Florida Bar groups.
