Chief Justice Canady to address the Board of Governors January 21
Chief Justice Charles Canady
When it meets January 21 in Tallahassee, the Board of Governors will hear remarks from Chief Justice Charles Canady, and, among other things, weigh a Disciplinary Procedure Committee proposal for suspending lawyers who face felony charges.
Justice Canady’s appearance comes after the chair of a Judicial Management Council workgroup recently told the board that the Supreme Court is considering major changes to Florida’s civil justice system.
At a December 3 board meeting, Second District Court of Appeal Chief Judge Robert Morris delivered a lengthy presentation on a final report by the Workgroup on Improved Resolution of Civil Cases.
Three years in the making, the report proposes rule amendments that are designed to create a more efficient process and speed the resolution of civil cases.
Judge Morris warned the changes will be challenging to implement, at least at first.
“People don’t like change,” he said. “This is a major paradigm shift.”
The subject is likely to surface, especially if Justice Canady continues to honor his custom of inviting board member questions.
In other business, the Board of Governors is scheduled to weigh final action on a proposed amendment to Bar Rule 3.52 that would provide for the emergency suspension of lawyers facing felony charges in state or federal court.
The Disciplinary Procedure Committee proposal was prompted by a June 11 letter from the Supreme Court in which the justices noted that Rule 3-7.2 “pertains to felony determinations or judgments of guilt, both of which only occur at the conclusion of the criminal matter.”
The court said it was requesting the amendments “in a continuing effort to protect the public.”
“Without an appropriate rule modification, an attorney may remain eligible to practice law during the pendency of a felony case while the attorney may also be unwilling or unable to respond fully in disciplinary proceedings,” the justices wrote.
The Disciplinary Procedure Committee invited Criminal Law Section input after the section objected to an initial proposed draft.
The final version would, among other things, create a subsection (b) “Emergency Suspension Relating to Felony Charge Causing Great Public Harm.”
Under the proposal, a lawyer would have 15 days to file a response to the allegations in the charging document, and the Bar would weigh the response before determining whether to file a “Notice of Institution of Felony Charge Causing Great Public Harm,” with the Supreme Court.
In cases where the lawyer responds, the Supreme Court would “promptly” appoint a referee who would recommend, within 30 days of being appointed, whether an emergency suspension is warranted.
The referee would be required to consider “the totality of the circumstances,” the nature of the charge, the lawyer’s response, and the potential impact the charges will have on the lawyer’s duties to existing clients, the legal community and judicial system, and the public.
If the board recommends approval, the proposed amendments will be forwarded to the Supreme Court for final consideration.
The board will also weigh final approval of a Disciplinary Procedure Committee proposal to amend Bar Rule 3-7.2. The proposal would also require Supreme Court approval.
The proposed changes would require Florida Bar members who enter a diversion program for any reason, or who receive a censure or reprimand in another state, to notify The Florida Bar.
According to an analysis, Bar staff noticed that lawyers were receiving reprimands or censures in other states for conduct that would have resulted in more serious discipline in Florida.
“Requiring [T]he Florida Bar member to file a copy of the order or judgment with the Bar would allow the Bar to review the matter to determine if the Bar wishes to seek discipline in Florida for the conduct in a foreign jurisdiction,” the analysis states. “Requiring Florida Bar members to notify the [B]ar when they enter a diversion program ensures that the Bar will review and determine if discipline may be necessary.”
Currently, lawyers are only required to notify the Bar of a misdemeanor “determination of guilt,” and pre-trial diversion is not included in the definition of “determination of guilt,” according to the analysis.
The board will also weigh final approval of a Rules Committee proposal to amend Rule 1-3.5 (Retirement).
Prompted by Bar member inquiries, the proposal would require lawyers to affirmatively state their retired status when they indicate Florida Bar membership and prohibit retired lawyers from holding themselves out as able to practice Florida law unless they are certified as emeritus lawyers.
The proposal would add a subsection (2) that states, “Retired members must affirmatively represent their retired status when any statement of Florida Bar members is made, e.g., when in writing, Esquire (Ret.) or Member, Florida Bar (Ret.).”
A proposed subsection (3) states, “Retired members must not hold themselves out as being able to practice law in Florida or render advice on matters of Florida law unless certified as emeritus lawyers under chapter 12 of these rules.”
The Supreme Court will have the final say.
The board will also be asked to weigh a Rules Committee proposal to amend Bar Rule 4-1.6 (Confidentiality of Information).
Prompted by inquiries to The Florida Bar’s Ethics Hotline, the proposed change would, among other things, remove the words “to another” from subsection (b)(2) that describes when a lawyer must reveal information.
The changes would make it clear that mandatory disclosure of confidential information to prevent death or substantial bodily harm includes harm to the client, according to a staff analysis.
“The change would also be more consistent with ABA Model Rule 1.6,” according to the staff analysis. If the board approves the proposal, it will be forwarded to the Supreme Court for final consideration.
The board will also be asked to affirm or reverse a Standing Committee on Advertising decision regarding whether the payment of a portion of a webinar registration fee to a third party who promotes a lawyer’s webinar on social media violates Rule 4-7.17, which prohibits paying for referrals.
In other business:
- The board is expected to receive an update on a priority President Michael Tanner identified this summer — the potential for a fully automated, remote platform for the resolution of civil claims worth less than $1,000. The COVID-19 Pandemic Recovery Task Force, co-chaired by Sia Baker-Barnes and Jay Kim, is overseeing the effort.
- The board will also take up a proposed Criminal Law Section legislative position that encourages lawmakers to “increase funding for the needs of the criminal justice court system in the State of Florida” to “ensure a more effective, efficient, and just criminal court system in our State.”
- Donny MacKenzie, executive director of The Florida Bar Foundation, is also scheduled to address the board.
