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Board to review remote proceeding guidelines, discuss negative online reviews

Senior Editor Top Stories

BOG SealWhen it convenes virtually December 4, the Board of Governors is expected to weigh a host of issues, including proposed guidelines for making remote proceedings more uniform, and whether to request an ethics opinion regarding negative online reviews by non-clients.

Board Technology Committee Chair Jay Kim, who represents the 17th Circuit, told the board’s COVID-19 Pandemic Recovery Task Force that the guidelines should be ready for board review by December.

“The Technology Committee has a couple of projects that are ready to be wrapped up,” Kim told task force members at a November 17 meeting.

When the pandemic forced courts this spring to pivot to mostly online proceedings, some lawyers expressed concern about navigating different videoconferencing platforms, or different procedures for such things as evidence submission and document sharing.

If the board accepts the guidelines, they would likely be posted on the task force’s newly redesigned COVID-19 Information and Resources webpage, said task force Chair Michael Tanner.

In other business, the board is expected to weigh a request by the Professional Ethics Committee to authorize an ethics opinion that would provide guidance for attorneys responding to negative online reviews by non-clients.

On February 7, 2020, the Ethics Committee voted to recommend Ethics Opinion 20-1.

The opinion concluded, in part, that a lawyer may not disclose information relating to the client’s representation online, including that the lawyer may not post a copy of the order on the lawyer’s motion to withdraw, “but could state that the post is not accurate.”

When the opinion was published in March, it attracted three comments, according to a staff analysis. The committee agreed to add the phrase that “the inquirer is constrained by the Rules Regulating The Florida Bar from responding in detail, but that the online post presents neither a fair nor accurate picture of what occurred.”

One of three comments, however, requested that the opinion address responses to negative online reviews from non-clients. The committee expressed a willingness to address the issue, but determined that board authorization was necessary because it was not part of the original request for an opinion, according to the analysis.

“Many committee members themselves have heard from Florida Bar members who have concerns about responding to online posts,” the analysis states. “The Florida Bar’s Ethics Hotline also receives calls on this issue.”

Under Bar rules, the board will have to determine whether the issue “is likely to be of widespread interest or unusual importance to a significant number of Florida Bar members” before authorizing the opinion.

In other action, the board is also expected:

• To receive an update from the COVID-19 Pandemic Recovery Task Force. At its October 17 meeting, the task force discussed, among other things, plans for a major Bar survey to determine which legal proceedings should continue to be conducted remotely after the pandemic subsides.

• A report from Communications Committee Chair Steven Davis regarding a plan for increasing advertising on the Bar website.

• Proposed amendments by the Rules Committee that are designed to clarify Rule 4-5.8 Procedures for Lawyers Leaving Law Firms and Dissolution of Law Firms.

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