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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 item at its March 28, 2014 meeting in Palm Coast. 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, 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 this proposed amendment, 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

Chapter 1 General

RULE 1-3.3 OFFICIAL BAR NAME AND CONTACT INFORMATION

Within subdivision (a), requires that bar members provide an e-mail address to the bar unless the bar grants an exception. Non-substantive edits conform the rule to the Supreme Court of Florida style guide.

RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP

Within subdivision (d), proposed amendments clarify that reinstatement requires approval by the Supreme Court of Florida. Non-substantive edits conform the rule to the Supreme Court of Florida style guide.

Chapter 4 Rules of Professional Conduct

CHAPTER 4, PREAMBLE – A LAWYER’S RESPONSIBILITIES (Terminology)

In terminology under “writing” changes “e-mail” to “electronic communications.” Within the comment on “screened,” changes “materials” to “information, including information in electronic form” in 2 places. Nonsubstantive amendments conform the rule to the Supreme Court of Florida style guide.

RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES (Retainers, Advances)

Within subdivision (c), defines the terms retainer, flat fee and advance fee and indicates proper placement in operating versus trust account. Within the commentary, moves commentary regarding a bonus in domestic relations matters to the section of commentary titled “Prohibited contingent fees.” Within the commentary, indicates that nonrefundable fees should not be held in trust as they are earned on receipt, but that advances on fees must be held in trust. Within commentary indicates that nonrefundable fees remain subject to the prohibition against clearly excessive fees.

RULE 4-1.6 CONFIDENTIALITY OF INFORMATION

Adds new subdivision (c)(6) and commentary which would permit lawyers to disclose confidential information to discover and resolve conflicts of interest when law firm composition changes or a lawyer changes employment with a firm where attorney-client privilege will not be compromised and disclosure will not harm the client. Adds new subdivision (e) requiring lawyers to make reasonable efforts to avoid inadvertent disclosure of confidential information and re-letters subsequent subdivisions accordingly. Adds new commentary explaining lawyer’s obligations to avoid inadvertent disclosure of confidential information. Nonsubstantive amendments conform the rule to the Supreme Court of Florida style guide.

RULE 4-1.17 SALE OF LAW PRACTICE

Proposed amendments to the comment reference proposed amendments to rule 4-1.6 which would permit disclosure of some confidential information to resolve conflicts of interest before the purchase of a law practice. Nonsubstantive amendments conform the rule to the Supreme Court of Florida style guide.

RULE 4-1.18 DUTIES TO PROSPECTIVE CLIENT

Throughout the rule and comment, replaces terms such as “discuss” with “consult” to make clear that communications between lawyer and prospective client are not limited to oral communications. Proposed commentary also clarifies when a person is considered a prospective client under this rule. Nonsubstantive amendments conform the rule to the Supreme Court of Florida style guide.

RULE 4-4.4 RESPECT FOR RIGHTS OF THIRD PERSONS

Changes throughout the rule and comment add “electronically stored information” regarding inadvertently sent material. Proposed amendments to the comment clarify the meaning of inadvertently sent, the meaning of document or electronically stored information, and clarify a lawyer’s obligation regarding metadata. Nonsubstantive amendments conform the rule to the Supreme Court of Florida style guide.

RULE 4-5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS

Changes in the rule and commentary clarify that a lawyer’s obligations regarding nonlawyers applies whether the nonlawyers work directly for lawyers inside a law firm or are work outside the firm. Proposed commentary provides examples of work “outsourced” to nonlawyers, factors to consider in determining the extent of reasonable measures of the lawyer, the lawyer’s obligation to communicate with the nonlawyers outside the firm, and allocation of decision-making between lawyer and client regarding use of nonlawyers outside the firm. Nonsubstantive amendments conform the rule to the Supreme Court of Florida style guide.

RULE 4-5.5 UNLICENSED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW

Nonsubstantive amendments conform the rule to the Supreme Court of Florida style guide.

Chapter 5 Rules Regulating Trust Accounts

RULE 5-1.1 TRUST ACCOUNTS (Replacing Funds Improperly Taken from a Lawyer’s Trust Account )

Reorganizes subdivision (a) and within subdivision (a)(1) creates an exception to commingling to permit a lawyer to deposit sufficient funds into the lawyer’s trust account to make up a shortfall in the trust account caused by misappropriation, bank error, bank charge or a bounced check. Also makes style changes to comply with the Supreme Court of Florida’s style guidelines.

RULE 5-1.2(c) TRUST ACCOUNTING RECORDS AND PROCEDURES (Trust Account Certification)

Strikes subpart (c)(5), which had required bar members to file a trust account compliance form with the bar each year.

Chapter 6 Legal Specialization and Education Programs

RULE 6-3.7 EMERITUS SPECIALIST STATUS

Repeals Rule 6-3.7, Emeritus Specialist Status

RULE 6-3.11(g) Emeritus Application Fee

Rule 6-3.11(g) – Eliminates Emeritus Application Fee

Chapter 7 Clients’ Security Funds

CSF Regulation C 4 Claims Ordinarily Denied

Clarifies that claims by subsidiaries and affiliates of publically traded companies will not ordinarily be considered for payment.

Standing Board Policies

Standing Board Policy 13.10 (Citizens Forum Name Change)

Within subdivision (d)(6), changes “Citizens Forum” to “Citizens Advisory Committee” throughout.

Standing Board Policy 15.40 Grievance Committee Membership

Authorizes criminal background investigations of non-lawyers who will be nominated as public members of Bar grievance committees.
Section Bylaws

Bylaws – Trial Lawyers Section

The amended bylaws were approved by the members of the Section at the Bar’s annual meeting, and also by the Executive Council in separate votes. The paragraphs below note the substantive changes in this update to the existing bylaws. In addition to these changes, some minor grammatical corrections are made which do not materially impact the intent of the language within the bylaws nor differ from the Section’s directive expressed in the passage of the motion to update the bylaws.

In Article II, Section 1 (c), previous language is deleted and incorporated in Article II, Section 2. In Article II, Section 2, 3 eligibility requirements for affiliate members and associated voting privileges are consolidated.

Throughout Article III, language reflects the addition of the title of Treasurer to that of Secretary, per the Section’s vote. In Article III Section 1, the immediate past chair is noted as an officer of the Section.

In Article III Section 3(a), language is added, empowering the chair to appoint non-Executive Council members to special projects as necessary. Also, language has been added showing the change that the chair is authorized to assign tasks to non-Executive Council members on occasion where the outcome of those duties would be beneficial to the section.

In Article III Section 3 (c), the secretary/treasurer is also included as a member of the Budget Committee.

In Article III, Section 4(d), language is stricken that qualifies term limits for the initial appointees.

In Article IV Section 3, the membership structure of the Legislative Committee is increased from 6 members to 7 members. The committee will consist of the 4 Section officers and the officers (the chair, chair-elect and immediate past chair) will appoint three additional members to serve for one-year terms.

In Article IV Section 4, changes redefine the composition of the Executive Committee to be the officers plus chairs of the CLE, Legislative, and Budget committees. Also, the provisions that staggered terms of Executive Committee members are deleted. Also, the Executive Committee is authorized to act on behalf of the Executive Council when a full meeting is impractical; previously, three members of the Executive Committee were authorized to take emergency action on behalf of the Executive Council. The Executive Committee may meet by conference call or any similar means of communication.

In Article V, Section 1, language pertaining to the initial selection of the Executive Council is deleted. Also, Section 3 (previously Section 4 prior to the deletion of Section 1) is modified so that vacancies during an officer’s term of office may be filled for the balance of the vacated term by the Executive Council’s vote based on the recommendation of the Executive Committee. Members who previously served on the Executive Council are eligible for reappointment after an absence of at least one regularly scheduled meeting of the Executive Council.

In Article VI, changes define the standing committees of the section going forward.

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