January 15, 2015 Letters
As the partner in a growing practice, I have the occasion to see firsthand how all rules governing the practice of law in Florida affect a firm.
Recently, I have begun to question several of these rules, not the least of which is Rule 5-1.1(g), which requires interest earned on money put into firm trust accounts to accrue solely for the benefit of The Florida Bar Foundation.
This rule is unethical for several reasons. First, clients have no choice but to let money that ought to accrue to themselves go to The Florida Bar Foundation.
The whole reason why money accrues interest at all is because there is a time value to it. If money is to be returned to the client, why wouldn’t they get the interest they have earned by foregoing other investment opportunities?
Given that The Florida Bar has a monopoly on the provision of services in Florida, dictating to all who seek legal services how such services shall be obtained, The Florida Bar is in effect coercing a massive transfer of wealth from clients to whom the money is actually owed.
According to a 2012 Florida Bar Foundation report, the actual amount that is redistributed without choice by the clients every year is about $7 million. That doesn’t seem like a whole lot in the scheme of things. Then again, The Florida Bar has sanctioned and disbarred many attorneys for taking far less.
It hasn’t always been this. Believe it or not, once upon a time lawyers had a choice in the matter: Interest on trust accounts going to the Foundation was a voluntary matter. It is hard to believe that 25 years later, the practice of law in Florida has less choice and less freedom, but that was the decision by the Florida Supreme Court (unelected, by the way) in 1989.
Maybe it is time we move back to IOTA contributions to the Foundation being a choice and not the mandate of a monopoly. Isn’t it better to err on the side of liberty?
Christian W. Waugh
( Editor’s Note: Contrary to the belief of many Florida attorneys, not all funds held for clients or third persons should be held in an IOTA account. Many lawyers incorrectly assume they are required to use the IOTA account for all funds they hold in trust. However, trust funds should only be deposited into an IOTA account when they are so small or are expected to be held for such a short period of time that the cost to generate income for the client or third person exceeds the income earned.
Under IOTA, lawyers and law firms aggregate all of their nominal or short-term trust funds into one or more IOTA accounts. It is because such funds are aggregated that they can earn interest in excess of financial institution service charges and generate net interest.
If trust funds can earn more income than the cost to secure that income, then, as the fiduciary for those funds, the lawyer should invest such funds for the benefit of the client or third person. It is the lawyer, not the client or third person, who must use his or her own best judgment to determine whether funds should be deposited into an IOTA account. Factors lawyers should consider when exercising such judgment can be found at 5-1.1(g)(3), Rules Regulating The Florida Bar.
For more information about the IOTA program, visit www.flabarfndn.org .)
Florida Bar rules require you to provide a “business email address, if the member has one.” That address routinely shows up on the Bar’s website.
These email addresses are an open invitation to scammers looking to separate you from your money — Chinese manufacturers claiming to be looking for counsel because they are owed money, people overseas supposedly seeking a lawyer who will enforce a settlement from their “ex,” not to mention the ever popular Nigerian princess who can’t seem to find a reliable, dear person to accept her millions.
There’s an easy way to tell at a glance whether someone sending you email is using the address from The Florida Bar’s website. Most colleges and law schools have a free lifetime email forwarding service for their alumni/ae. This is not a stand-alone email account; it is strictly a forwarding service, so you never have to check it.
For example, my forwarding email is [email protected] Whenever I see that in the “to” line, I know it’s from someone who lifted my email address from the Bar’s website. An added benefit is that if your real email address changes, the only change you have to make is to update your public forwarding account.
Get your college or law school’s forwarding email account and update the Bar’s website with it. It’s an extra layer of identity protection you should have.
Gaylord A. Wood, Jr.
The ongoing debate on how best to fund legal aid programs has received regular coverage in the News, as such an important issue should (full disclosure, I am a staff attorney at a legal aid office which receives Florida Bar Foundation funds — the views expressed herein are my own).
One proposed measure, to increase annual Florida Bar membership fees to partially address the funding shortfall for legal aid programs, has likewise received regular coverage (again, full disclosure, I am one of the 522 signatories to the petition to increase membership fees). In my view, the News’ coverage of this issue fairly presents the position of those on either side of the petition, and has contributed to a meaningful and informed debate of the issue.
But the News recently missed an opportunity to provide important context between two stories which shared the December 15 front page — “Rule challenge restores millions in food stamps, mostly to the elderly and disabled,” and “Court hears arguments on raising Bar fees for legal aid.”
The “Bar fees” article focused primarily on the legal debate surrounding the petition, but did include a quote from Raul Cantero, who represented the Bar fee petitioners before the Supreme Court, which explained that a lack of funding for legal aid will mean that more people will lose their homes and fewer people will be able to access government benefits. Previous articles covering the petition contained similar information. When presented in the abstract and almost in passing, these consequences are easy to discount.
The “rule challenge” article described the work of several different legal aid offices on behalf of “Thomas Mayer,” an elderly man whose food stamps were terminated by the State of Florida in violation of federal law. Mr. Mayer was not alone — more than 33,000 other people in Florida similarly had their food stamps wrongfully terminated. Legal aid lawyers successfully resolved the issue for all those affected, resulting in millions of dollars in wrongfully terminated food stamps
being restored to the most vulnerable among us. The article, however, made no mention that it is these very legal aid programs,which are at dire risk of being unable to continue their crucial work due to a lack of funding.
The “rule challenge” article provided a human face and a true life example of the essential work performed by legal aid offices, but made no mention of the fiscal crisis faced by these programs.
The “Bar fees” article provided an analysis of the legal and policy arguments from both proponents and opponents of the petition, but provided only a cursory summation of the real life consequences for poor people in Florida if funding for legal aid is not restored. Had the News made an explicit connection between its coverage of the work of legal aid programs and its coverage of the Bar fees petition, it could have made another important contribution to the ongoing debate of this important issue.
I’m glad to see that the Supreme Court in conjunction with The Florida Bar is taking steps to make sure that the legal profession in this state remains independent and solvent.
Take the “access to justice tool,” discussed in the January 1 story, “Portal’s pro se tools to remain free,” for example. We want to empower nonlawyers to practice law by assisting them in filling out forms at no cost whatsoever to them and then charging nothing to file those same forms. That’s just great. Meanwhile, we can all look forward to the day when they raise our Bar membership fees by $100 per year so that we can still further help litigants in handling their cases in court without the assistance of licensed attorneys in private practice. We certainly don’t want anybody to be denied access to the courts, because they have to pay all those rich and greedy lawyers.
I have an idea that I would like the Bar and the Supreme Court to consider. I think that they should take it a step further. Filing paperwork with the court isn’t enough because then you have to go in front of the judge and actually present evidence and otherwise argue the matter in compliance with the law. But, wait a minute. These are nonlawyers. They don’t know how to do that, the poor souls. So, to solve that nasty little problem, we should have a series of self-help videos where judges and other lawyers in government service (who can reliably depend on receiving a regular taxpayer-funded paycheck) can present to nonlawyers what they have to say and do at the hearing to ensure that the nonlawyer can handle his case from start to finish. They can pay for all that by raising the Bar fees that nonlawyers pay by 100 percent.
Ernest J. Mullins