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Rule amendments, platform for resolving minor civil disputes on board’s October agenda

Senior Editor Top Stories

Board of Governors SealWhen it convenes October 1, the Board of Governors is expected, among other things, to weigh a series of proposed rule amendments, and receive an update on the potential for creating an automated platform for resolving minor civil disputes.

Supreme Court Justice Alan Lawson is also scheduled to deliver brief remarks.

The board could also weigh final action on a proposed amendment to Bar Rule 3-5.2 (Emergency Suspension and Interim Probation or Interim Placement on the Inactive List for Incapacity Not Related to Misconduct).

Citing a “continuing need to protect the public,” the Supreme Court in June ordered the Bar to review Rule 3-5.2 and create a procedure for temporarily suspending lawyers facing felony indictment.

“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,” Supreme Court Clerk John Tomasino wrote in a letter to Bar leaders.

The court set an October 11 deadline for filing the proposal but said it would consider an extension.

The Disciplinary Procedure Committee expressed concerns but drafted a proposal. The proposed amendment includes a board comment urging the court not to consider it a “default” position, and to weigh suspensions of indicted lawyers “on a case-by-case basis.”

Jason Blank

Jason Blank

In a September 8 letter to the committee, Criminal Law Section Chair Jason Blank echoed the committee’s due process concerns and said the section’s executive council voted unanimously to oppose the proposed amendment.

“All lawyers, regardless of the basis for an emergency suspension, are entitled to the protections of due process — which includes, at a minimum, the right to a hearing,” Blank wrote.

The Disciplinary Procedure Committee is scheduled to meet again September 23 to hear from the Criminal Law Section as to whether alternative amendments should be considered.

In other business, board members are scheduled to hear a report from the COVID-19 Pandemic Recovery Task Force, initially created by immediate past President Dori Foster-Morales in the summer of 2020.

When he assumed the presidency in June, President Michael Tanner asked the board to extend the task force for another year.

One of three missions Tanner assigned the task force is to study the potential for an automated platform that could help unrepresented parties resolve civil disputes worth $1,000 or less.

Sia Baker-Barnes

Sia Baker-Barnes

Task force Co-Chairs Sia Baker Barnes, who served on the original panel, and Jay Kim, the immediate past chair of the Board Technology Committee, said the panel has studied similar platforms in other states and Europe.

Baker-Barnes said she envisioned the platform as something that could help unrepresented parties resolve consumer issues, such as a customer with a complaint about a major household appliance.

“You buy a refrigerator that doesn’t work, and the company is not cooperating, whether it’s replacing the fridge or getting your money back,” she said. “Maybe there’s an online platform statewide that allows you to submit your claim electronically, with documents only, and allows the other side to submit a response, and ultimately provides a resolution online without you ever having to set foot in a courtroom,” she said.

Jay Kim

Jay Kim

Kim said the platform could possibly help a customer who claims a local repair shop destroyed their laptop, or someone seeking repayment of a personal loan.

Many consumers need help resolving disputes that wouldn’t be worth the time and expense of going to court, Kim said.

“You have two choices, you can go to court as a pro se litigant, or you can just forget about it,” Kim said. “This will definitely fill an unmet need.”

One of the challenges the task force faces, Baker-Barnes and Kim said, is determining whether existing platforms would work in Florida.

Board members are also expected to receive an update on the progress of the Special Committee for the Review of Professionalism in Florida.

When he announced the formation of the committee in June, Tanner asked it to perform a comprehensive review of professionalism standards, how they are defined, taught to new Bar members and through a lawyer’s career, and how they are enforced. He gave the panel until the end of the Bar year to recommend ways for strengthening all three areas.

Co-chaired by President-elect Gary Lesser and Standing Committee on Professionalism Chair Elizabeth Hunter, the special committee met in July and formed three subcommittees. It has been working diligently ever since.

When it comes to enforcing professionalism standards, Hunter and Lesser said the committee is considering recommending procedures for better promoting local professionalism panels and making them operate more uniformly.

The Supreme Court authorized local professionalism panels in In re: Code for Resolving Professionalism Complaints, No. SC13-688, in June 2013. Formed by chief judges, some panels have been more active than others, with some lacking referrals.

The panels lack authority to discipline attorneys, but they have proven highly effective as peer review and educational tools, correcting unprofessional behavior before it rises to the level of a formal Bar investigation, Lesser said.

“What we are looking to do is have a very clear process where every professionalism panel functions the same, where we have a system where a professionalism referral either goes to the panel for handling, or to ACAP (Attorney/Consumer Assistance Program), which is what the court asked,” Lesser said.

In other action, the board is expected to weigh:

  • A proposed amendment to Standing Board Policy 16.23 (Dual Circuit UPL and Grievance Committee Membership). The proposed amendment would ease a restriction on dual membership to make it easier to fill vacancies.
  • A proposed amendment to Rule 4-5.5 (Unlicensed Practice of Law; Multijurisdictional Practice of Law). Requested by the Supreme Court, the proposed amendment would add a comment regarding the ability of out-of-state lawyers working remotely while physically located in Florida.

 

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