The Florida Bar

Florida Bar News

Proposed board action

Regular News

Proposed board action

Pursuant to Standing Board Policy 1.60, the Board of Governors of The Florida Bar publishes this notice of intent to consider the following items at its December 4, 2015board of governors meeting in Naples, Florida. This is governed by Rule 1-12.1, Rules Regulating The Florida Bar. If approved by the board, most of these amendments must still be formally filed with the Supreme Court of Florida, with further notice and opportunity to be heard, before they are officially approved and become effective. Additionally, most non-substantive edits to conform to the Supreme Court style guide are not noted in the summary. To receive a full copy of the text of any of these proposed amendments, email [email protected] or call Janellen Green at (850) 561-5751. Reference any requested proposal by its title or item number and date of this publication.

RULES REGULATING THE FLORIDA BAR

Final Action Items:

RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES (Lien Resolution #3)
The board will consider 2 alternatives: Within Rule 4-1.5(f)(4), adds new subdivision (E) that the lawyer in a personal injury or wrongful death case charging a contingent fee must provide ordinary lien resolution as part of the lawyer’s representation of the client under the fee contract, that the lawyer may not charge any additional fee to the client for providing any lien resolution services if all fees for the personal injury matter plus lien resolution exceed the contingent fee schedule, that extraordinary services for subrogation and lien resolution may be referred to another only with the client’s informed consent, that additional fees by the other lawyer must comply with all provisions of the fee rule, and that the lawyer providing the extraordinary subrogation and lien resolution services may not divide fees with the lawyer handling the personal injury or wrongful death claim; providing definitions of extraordinary versus ordinary lien resolution services; requiring a disclosure at the outset of representation that the personal injury lawyer would not provide extraordinary lien resolution services; defining the fee that could be charged for extraordinary lien resolution services; requiring court approval of the extraordinary lien resolution fee if it together with the personal injury fee exceeded the contingent fee schedule set forth in Rule 4-1.5; and permitting the court reviewing the agreement for extraordinary lien resolution services to adjust the fee of the primary lawyer (the lawyer handling the underlying personal injury matter). Within the comment, explains what lien resolution services are required as part of the original fee contract and what extraordinary services entail. The second alternative omits the portion that and permits the court reviewing the agreement for extraordinary lien resolution services to adjust the fee of the primary lawyer (the lawyer handling the underlying personal injury matter).

RULE 1-3.2 MEMBERSHIP CLASSIFICATIONS

Adds new subdivision (a)(2), adds that inactive members are members in good standing solely for the purpose of obtaining a certificate of good standing, but no other purpose. Within subdivision (c), changes “membership in good standing” to “active” membership “eligible to practice law” regarding reinstatement. Non-substantive edits are made to conform to the Supreme Court style guide.

RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP

Within subdivision (g), adds “active” before and “to become eligible to practice law in Florida” after “membership in good standing” regarding reinstatement. Non-substantive edits are made to conform to the Supreme Court style guide.

RULE 6-10.7 CONFIDENTIALITY

Replaces “suspended from” with “not eligible to practice law” addressing failure to meet continuing legal education requirements.

RULE 8-2.2 CONTENTS OF APPLICATION

Within subdivision (c)(3), adds “and eligible to practice law in Florida” to describe members in good standing.

RULE 9-1.3 DEFINITIONS

Within subdivisions (f) and (g), adds “eligible to practice law in Florida” to describe members in good standing.

RULE 11-1.10 CERTIFICATION OF MEMBERS OF OUT-OF-STATE BARS

Within subdivision (a)(4), adds “eligible to practice law in that jurisdiction” to describe members in good standing.

RULE 11-1.7 SUPERVISION

Within subdivision (a), adds “eligible to practice law in Florida” to describe members in good standing.

RULE 13-1.2 DEFINITIONS

Within subdivision (a)(2), adds “eligible to practice law in that jurisdiction” and within subdivision (c) adds “eligible to practice law in Florida” to describe members in good standing.

RULE 18-1.2 DEFINITIONS

Within subdivision (c), adds “eligible to practice law in Florida” to describe members in good standing.

FLORIDA BAR PROCEDURES FOR ISSUING ADVISORY OPINIONS RELATING TO LAWYER ADVERTISING OR SOLICITATION

Within procedures 3(c), 4(c) and 6(d), adds “in good standing” to describe members regarding comments filed on formal advisory opinions.

FLORIDA BAR PROCEDURES FOR RULING ON QUESTIONS OF ETHICS

Within procedures 3(d), 4(c) and 6(d), adds “in good standing” to describe members regarding comments filed on formal advisory opinions.

RULE 10-2.1 GENERALLY

Within subdivision (b) amends definition of paralegal to include lawyer authorized to engage in the practice of law in Florida; within subdivision (e) clarifies that bar counsel includes UPL staff counsel.

RULE 10-3.2 DUTIES OF THE STANDING COMMITTEE

Adds new subsection (b)(7) authorizing the Standing Committee on Unlicensed Practice of Law to close cases with the acceptance of a cease and desist affidavit with restitution to the complainant.

RULE 10-4.1 GENERALLY

Adds subdivisions (e)(2) and (5) authorizing an unlicensed practice of law circuit committee to close a case based on a letter of advice and to accept a cease and desist affidavit with restitution. The subsequent subdivisions are renumbered.

Rule 10-5.1 COMPLAINT PROCESSING

Within subdivision (c), removes the words “the appropriate” when referring to the circuit committee to which a case is referred.

Rule 10-5.2 Disqualification of Attorney for Respondent Due to Conflict

Clarifies rule regarding disqualification of attorney for respondent due to conflict.

RULE 10-6.3 RECOMMENDATIONS AND DISPOSITION OF COMPLAINTS

Within subdivision (a), adds letter of advice to recommendations and disposition. Within subdivision (b), clarifies the rule regarding bar counsel disagreement with the actions of the circuit committee.

RULE 20-1.1 PURPOSE

Changes “member of The Florida Bar” to “employing or supervising lawyer.”

RULE 20-2.1 GENERALLY

Within subdivisions (a),(c), and (e), changes Florida Bar members to employing or supervising lawyers and expands the definition of employing or supervising lawyer to include not only membersof The Florida Bar, but also authorized house counsel, foreign legal consultants and military lawyers.

First Reading Items:

RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

Within subdivision (a), deletes telegraph and facsimile as forms of prohibited solicitation and adds communications that occur electronically that are real-time, face-to-face communications such as video conference.

RULE 6-3.7 Inactive Status

Creates an inactive certification status for judges, law professors, active duty military, professional neutrals (mediators, arbitrators and voluntary trial resolution judges), and for substantial or material hardship cases.

RULE 6-13.2 DEFINITIONS [Appellate Practice Certification]

Adds new subdivision (b)(1), which defines what appellate actions will be accepted from either initial or recertification applicants. Including that if the filing date of the principal brief, response or petition, as defined in Rule 6-13.2(b)(f) or (g) is outside the current filing period, the appellate action will not count towards the required total. Adds new subdivision (b)(2), which clarifies that any briefs on merits, following acceptance in the U.S. Supreme Court, and may be considered a separate appellate action. Adds new subdivision (b)(3), which defines what appellate actions will be accepted from either initial or recertification applicants. Within subdivision (e), defines the primary responsibility of an applicant who is not the author on the brief and allows that applicant to obtain credit for the brief if accompanied by certification from at least one of the designated authors that the applicant had the most substantial and direct participation in the preparation of the brief. Within subdivision (f), defines what principal briefs in appeals mean for initial and recertification applicants, clarifies “cross appeals,” and adds that for good cause, the Committee may treat a combined answer brief and initial brief on cross-appeal as separate principal briefs if the brief reflects a level of effort and preparation comparable to that required to produce separate principal briefs.

RULE 6-13.3 MINIMUM STANDARDS [Appellate Practice Certification]

Within subdivision (c), clarifies that any oral argument presented to an appellate court need not be presented in the same cases listed on the appellate actions exhibit.

RULE 6-13.4 RECERTIFICATION [Appellate Practice Certification]

Within subdivision (c), clarifies that any oral argument presented to an appellate court need not
be presented in the same cases listed on the appellate actions exhibit.

RULE 11-1.2 ACTIVITIES

Within subdivisions (b), (c) and (d), amendments require that an eligible law student be supervised by a lawyer in appearances in court or administrative proceedings prior to the eligible law student receiving a letter of clearance as to character and fitness from the Florida Board of Bar Examiners.

RULE 11-1.3 REQUIREMENTS AND LIMITATIONS
Adds new subdivision (b) to allow an eligible law student to act as a certified legal intern under the supervision of a lawyer prior to receiving a letter of clearance as to character and fitness from the Florida Board of Bar Examiners and specifies that if the law student is denied clearance the authorization is terminated; other subdivisions are re-numbered.

RULE 11-1.9 CONTINUATION OF PRACTICE PROGRAM AFTER COMPLETION OF LAW SCHOOL PROGRAM OR GRADUATION

Amends subdivision (b) to allow graduates of non-Florida law schools to act as certified legal interns under the supervision of a lawyer prior to the issuance of a letter of clearance as to character and fitness from the Florida Board of Bar Examiners and specifies that if the graduate is denied clearance the authorization is terminated.

Bylaws – RPPTL Section

The Real Property, Probate and Trust Law Section (“the Section”) by-laws were amended in the following respects: within Article II, Section 1, subsection (b), the section proposes to make affiliate section membership available to qualified students enrolled in any accredited law school, wherever located. Within Article IV, Section 3, the section proposes to permit the appointment of co-chairs of the section’s CLE seminar coordination committee and legislation committee and that each co-chair will be a member of the executive committee and entitled to one vote. Within Article VI, Section 2, the section proposes to provide that, with respect to section committees, the use of the term “chair” includes co-chairs, to recognize the need where appropriate for co-chairs of section committees, particularly for the largest of the section committees. Within Article VIII, Section 3, the section proposes to authorize the appointment of co-chairs for the section’s legislation committee, one for real property and one for probate and trust. Within Article IX, Section 1, the section proposes to provide a reasonableness test in determining the existence of a conflict of interest on the part of a member of its Executive Council or a member of one of the section’s committees, requiring the member to bring that conflict to the attention of those present, while permitting the member to continue to participate in the debate, but not to participate in a vote.