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Pro bono committee explores putting cy pres in civil code

Senior Editor Regular News

Donny MacKenzieThe Bar’s Pro Bono Legal Services Committee will explore pushing legislation that would expand the ability for residual funds in Florida class actions and other civil litigation to be assigned to legal aid programs.

The committee voted unanimously to approach the Board of Governor’s Legislation Committee to explore how it could push for a law declaring Florida a cy pres state in civil cases. The committee acted October 17 at the Bar’s Fall Meeting in Tampa.

Committee members said the law is a way to address the cy pres issue after the Supreme Court last May declined to adopt a civil procedure rule proposed by the committee and the Civil Procedure Rules Committee. The amendment would have allowed a court to direct the defendant to distribute any unpaid residual funds awarded in a class action to recipients agreed to by the parties, “including one or more nonprofit, tax-exempt organizations that provides civil legal services to the poor, including The Florida Bar Foundation.”

The two committees proposed the voluntary procedural rule after the court’s Commission on Access to Civil Justice studied the matter and recommended that residual civil class-action funds automatically go to The Florida Bar Foundation or nonprofit legal services.

During oral arguments, justices questioned whether the rule was substantive or procedural, noting there is a cy pres section in probate laws to address trust-fund residuals.

At the Pro Bono Legal Services Committee, member and Foundation Executive Director Donny MacKenzie said since justices during oral arguments appeared concerned about separation of powers, the best course was to pass a law including the cy pres doctrine for civil cases.

He added the legislation would be simple: “The doctrine of cy pres exists in all matters in civil legal proceedings in all matters in the State of Florida….’”

“We know the doctrine applies, we know it exists. We’ve got federal courts [where] we get cy pres awards occasionally,” MacKenzie said. “All we’re trying to do is put it in the books and say, ‘Look, the cy pres doctrine does exist and because it exists for your class-action lawsuits, consider it at the beginning of your case rather than the end of your case, and leave the burden to the judge to figure out what’s going on with unclaimed funds and residual funds.’”

Committee members noted most other states have either cy pres procedural rules or statutes, and many states either require the residual funds go to legal aid or delineate specific agencies to get the monies.

“I don’t think it hurts to ask [for the legislative position],” said Board of Governors and committee member Scott Westheimer. “We tried the rule change and that didn’t work; I don’t think there’s any harm in asking.”

Board of Governors and committee member Michael Tanner, who serves on the Legislation Committee, suggested the committee should coordinate with the Real Property, Probate and Trust Law Section since it would be affected because of the cy pres in the probate code.

The committee agreed that Co-chair Kathleen McLeroy and MacKenzie will explore with the Bar how the committee can take a legislative position and also approach RPPTL officials about the issue.

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