The opinion
Supreme Court of Florida
____________
No. SC14-2088
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IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA
BAR (BIENNIAL PETITION).
[June 11, 2015]
PER CURIAM.
This matter is before the Court on the petition of The Florida Bar proposing
amendments to the Rules Regulating the Florida Bar (Bar Rules). See R.
Regulating Fla. Bar 1-12.1. We have jurisdiction. See art. V, § 15, Fla. Const.
The Bar’s petition in this case proposes amendments to the following Bar
Rules: 1-3.3 (Official Bar Name and Contact Information); 1-3.7 (Reinstatement to
Membership); 3-5.1 (Types of Discipline; Generally); 3-5.2 (Emergency
Suspension and Interim Probation or Interim Placement on the Inactive List for
Incapacity not Related to Misconduct); 3-5.3 (Diversion of Disciplinary Cases to
Practice and Professionalism Enhancement Programs); 3-7.10 (Reinstatement and
Readmission Procedures); 4-1.6 (Confidentiality of Information); 4-1.17 (Sale of
Law Practice); 4-5.3 (Responsibilities Regarding Nonlawyer Assistants); 5-1.1
(Trust Accounts); 5-1.2 (Trust Accounting Records and Procedures); 6-12.3
(Requirement); and 10-7.2 (Proceedings for Indirect Criminal Contempt). The
proposals were approved by the Board of Governors, and formal notice of the
proposed amendments was published in The Florida Bar News. The notice
directed interested persons to file their comments directly with the Court. The
Court did not receive any comments.
After fully considering the Bar’s petition, we adopt most of the proposed
rule amendments. However, as addressed in this opinion, we do not adopt portions
of the proposed amendment to Bar Rule 3-5.1(h) (Types of Discipline; Generally;
Notice to Clients), nor do we adopt the amendments to Bar Rule 5-1.2 (Trust
Accounting Records and Procedures), subdivisions (d)(5) (Minimum Trust
Accounting Procedures) and (g)(1) (Audits). Additionally, the Court, on its own
motion, amends Bar Rule 3-7.9 (Consent Judgment). We discuss the more
significant amendments in this case below.
First, in Bar Rule 3-5.1 (Types of Discipline; Generally), subdivision (e)
(Suspension) is amended, as proposed by the Bar, to delete existing language in the
rule providing that a lawyer may be suspended for an indefinite period of time, and
to instead provide that a lawyer may be suspended for a specified period or until
further order of this Court. Additionally, subdivision (h) (Notice to Clients) is
amended to require a lawyer, upon being served with a notice of disbarment,
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disbarment on consent, disciplinary revocation, suspension, emergency suspension,
emergency probation, or placement on the inactive list for incapacity not related to
misconduct, to provide a copy of the Court’s order imposing the discipline on all
state, federal, or administrative bars of which the respondent is a member.
Subdivision (j) (Restitution) is amended to require a lawyer to provide the Bar with
telephone numbers and current addresses for all individuals or entities to whom the
lawyer is ordered to pay restitution.
The Bar also proposes amending Bar Rule 3-5.1(h) to provide that when a
lawyer begins serving a required period of suspension before the issuance of an
order from this Court approving the suspension, the lawyer must furnish a copy of
the Court’s order, or notice of commencement of the suspension, to all of the
lawyer’s clients, opposing and co-counsel, and all courts, tribunals, or adjudicative
agencies before which the lawyer is counsel of record. The Bar’s proposed
amendment is made in response to the Court’s decision in Florida Bar v.
Townsend, 145 So. 3d 775 (Fla. 2014), where the respondent, acting pursuant to a
consent judgment with the Bar, began and completed serving his full thirty-day
suspension before the Court issued an order approving the suspension; because the
“triggering” date in Bar Rule 3-5.1(h) for determining which clients, lawyers, and
courts should be notified of the suspension was the date the respondent is served
with the Court’s order imposing the discipline, the respondent in Townsend was
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not required to notify any clients, lawyers, or courts of the thirty-day suspension
until after he completed serving it. After considering the Bar’s proposal to amend
Bar Rule 3-5.1(h) in order to address this issue, we decline to adopt the proposed
amendment. Consent judgments between a respondent and the Bar are not final
until this Court issues an order approving the judgment. See R. Regulating Fla.
Bar 3-7.9(c). Accordingly, we conclude that a better practice in cases involving a
conditional plea and consent judgment entered into between the Bar and a
respondent is that the consent judgment may not permit the respondent to begin
serving a period of suspension or disbarment until this Court issues an order
approving the discipline. Thus, the Court, on its own motion, amends Bar Rule 3-
7.9(d) (Consent Judgment; Content of Conditional Pleas) to prohibit this practice.
Next, Bar Rule 3-5.2 (Emergency Suspension and Interim Probation or
Interim Placement on the Inactive List for Incapacity not Related to Misconduct),
is amended, as proposed by the Bar, to outline new procedures authorizing referees
to determine entitlement to, and to oversee disbursement of, funds frozen in a
lawyer’s trust account pursuant to an emergency suspension or interim probation
order. These new procedures are described in several subdivisions. Subdivision
(c) (Trust Accounts) will provide that, upon an order of emergency suspension or
probation that restricts a lawyer’s access to his or her trust account, Bar counsel
will serve a copy of the order freezing the trust account on all banks where the
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lawyer maintains a trust account. The suspension or probation order will serve as
an injunction to prevent the bank from allowing further payments from the trust
account except in accordance with restrictions imposed by the court through
subsequent orders issued by a court-appointed referee. Additionally, new
subdivision (c)(1) provides that the Court’s order appointing a referee in a case
involving an emergency suspension or probation may authorize the referee to
determine entitlement to funds in a frozen trust account. Any client or third party
requesting release of frozen funds must file a written petition with the referee,
along with proof of entitlement to the funds. Under new subdivision (c)(2), Bar
counsel and Bar auditors are also required to provide any information to the
referee, collected during a Bar audit, identifying persons who may be entitled to
trust account funds. Bar staff will then send written notice to each of these persons
making them aware of their possible interest in the trust account money; the notice
will include a copy of a form “Petition Requesting Release of Frozen Trust
Account Funds,” as well as instructions for completing the petition. The Bar will
also publish a notice in the local newspaper informing the public that the lawyer’s
trust account has been frozen, and instructing those with possible claims on the
funds to contact the Bar. In some circumstances, the referee will be authorized to
appoint a receiver, paid from the corpus of the trust account funds, to determine
those who are rightfully entitled to the money.
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New subdivision (d) (Referee Review of Frozen Trust Account Petitions) of
Bar Rule 3-5.2, provides that the referee, after reviewing the Bar’s audit report, the
trust account records, any petitions filed by interested persons, or any
recommendations from an appointed receiver, will determine when and how to pay
the claim of any person asserting an entitlement to funds in the frozen trust
account. The referee may hold a hearing on the matter. Significantly, subchapter
3-7 (Procedures) will not apply to this proceeding—no pleadings will be filed, only
petitions requesting release of trust account funds; the parties will be only those
persons filing a petition requesting release of funds, and will not include the Bar;
and the referee’s order will be treated as a final order unless one of the parties
petitions for review in this Court. The referee will determine the percentage of
monies missing from the trust account and the amounts owed to the parties, and
will implement a “pro rata distribution” of funds if there is not sufficient money in
the account to pay all of the claims in full. The parties may file a petition for
review within 60 days of the referee’s final order.
New subdivision (e) (Separate Funds in Frozen Trust Accounts) of Bar Rule
3-5.2 is also adopted to direct the referee to order the return of any “separate
funds” to the rightful owner of those funds. Separate funds are defined as monies
deposited into the lawyer’s trust account after the misappropriation took place,
which are not affected by the misappropriation, and funds that have been placed
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into a separate segregated individual trust account under the individual client’s tax
identification number.
Next, we amend Bar Rule 3-5.3 (Diversion of Disciplinary Cases to Practice
and Professionalism Enhancement Programs) to provide that a lawyer is not
eligible for diversion to a practice and professionalism enhancement program if he
or she has been the subject of a prior diversionary program for the same type of
rule violation within the past five years (rather than seven years). A lawyer who
has been the subject of a prior diversion for one type of rule violation, and is
alleged to have violated a completely different type of rule at least one year after
the initial diversion, would be eligible to attend a diversionary program.
We make several amendments to Bar Rule 3-7.10 (Reinstatement and
Readmission Procedures), as proposed by the Bar. The most notable of these is
subdivision (b) (Petitions; Form and Contents), which is amended to provide that a
petition for reinstatement to Bar membership may not be filed until the petitioner
has completed at least 80 percent of his or her suspension. We also amend Bar
Rule 3-7.10 to require: that a petition for reinstatement be filed with the Court in
compliance with the filing requirements in the Florida Rules of Civil Procedure
and the Florida Rules of Judicial Administration; and that a petition for
reinstatement filed by a petitioner who has been ineligible to practice for more than
five years, and who is consequently required to retake the Florida Bar Examination
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and the Multistate Professional Responsibility Examination, must provide proof in
the petition that the petitioner has passed both exams.
Bar Rule 4-1.6 (Confidentiality of Information) is amended to authorize a
lawyer to reveal confidential information in order to detect and resolve conflicts of
interest between lawyers in different firms, which may arise when lawyers change
employment or change the composition or ownership of a firm, provided that the
revealed information would not compromise the attorney-client privilege or
prejudice the client. This amendment is consistent with recent changes to the
American Bar Association’s model rules. Rule 4-1.6 is also amended to provide
that, as technology continues to evolve, lawyers must make reasonable efforts to
prevent the inadvertent or unauthorized disclosure of confidential information
relating to the representation of a client.
Bar Rule 5-1.1 (Trust Accounts) is amended to add new language
authorizing a lawyer to deposit his or her own personal funds into the trust account
to address a shortage in the account. However, any deposits made by the lawyer to
cover trust account shortages must be no more than is needed to cover the shortage
(and may be less). If a lawyer does deposit personal funds to cover a shortage, the
lawyer must immediately notify the Bar’s lawyer regulation department, and
identify the cause of the shortage and the amount deposited into the account to
cover it. This amendment is intended to encourage lawyers to take action to
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identify and replenish shortages in their trust accounts (whether the shortage is
caused by misappropriation or error) without risking further disciplinary action for
commingling funds, and the Bar states that the rule is consistent with rules
governing lawyer conduct in several other states. We emphasize, however, that the
lawyer must immediately notify the Bar of any shortage in the trust account and
any money deposited to correct the shortage, so that the Bar can investigate
whether any ethical violations occurred and take the appropriate actions necessary
to protect the public.
In Bar Rule 5-1.2 (Trust Accounting Records and Procedures), the Bar
proposes amendments to subdivision (d)(5) (Minimum Trust Accounting
Procedures), and a corresponding amendment to subdivision (g)(1) (Audits) to
remove the current requirement that lawyers must file with the Bar every year a
certificate of compliance with the trust accounting rules. The Bar indicates that a
“significant minority” of Bar members currently do not file the yearly trust account
certificates, and that this has led to inconsistent discipline for lawyers who engage
in minor trust accounting violations—sometimes resulting in harsher discipline for
lawyers who did submit a yearly trust account certificate than for those who did
not. Nonetheless, we do not adopt these amendments to rule 5-1.2. We believe
that the requirement that lawyers submit a yearly trust account certificate is an
important and useful tool in ensuring that lawyers are aware of the trust accounting
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requirements, and that they affirm their compliance with those requirements.
Accordingly, we take this opportunity to make clear that, as required in Bar Rule
5-1.2(d)(5), every member of The Florida Bar must file each year a trust
accounting certificate showing his or her compliance with the trust accounting
rules. The failure to file the trust accounting certificate will result in the lawyer
being deemed delinquent and ineligible to practice.
We do amend Bar Rule 5-1.2, subdivision (f) (Record Retention), as
proposed by the Bar to state that, on the dissolution of a law firm or on the sale of a
law practice, the partners or the seller of the practice shall make reasonable
arrangements for the maintenance and retention of trust account records.
Finally, we amend Bar Rule 6-12.3 (Basic Skills Course Requirement Rule;
Requirement), as proposed by the Bar, to remove the requirement that lawyers
newly admitted to the practice of law must attend the Practicing with
Professionalism program in person. Instead, the Young Lawyers Division of the
Bar may develop a program to allow these newly-admitted lawyers to attend the
course electronically.
Accordingly, the Court adopts the amendments to the Rules Regulating the
Florida Bar as set forth in the appendix to this opinion. New language is indicated
by underscoring; deletions are indicated by struck-through type. The comments
are offered for explanation and guidance only and are not adopted as an official
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part of the rules. The amendments shall become effective on October 1, 2015, at
12:01 a.m.
It is so ordered.
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – Rules Regulating The Florida Bar
John F. Harkness, Jr., Executive Director, Gregory William Coleman, President,
Mary Ellen Bateman, DEUP Division Director, and Elizabeth Clark Tarbert, Ethics
Counsel, The Florida Bar, Tallahassee, Florida,
for Petitioner
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APPENDIX
RULE 1-3.3 OFFICIAL BAR NAME AND CONTACT
INFORMATION
(a) Designation. Each member of The Florida Bar shallmust designate an
official bar name, mailing address, business telephone number, and business e-mail
address, if the member has one. If the physical location or street address is not the
principal place of employment, the member must also provide an address for the
principal place of employment. The Florida Bar may excuse a bar member from
the requirement of providing an e-mail address if the bar member has been excused
by the court from e-service or the bar member demonstrates that the bar member
has no e-mail account and lacks Internet service at the bar member’s office.
(b) Changes. Each member shallmust promptly notify the executive
director of any changes in any information required by this rule. The official bar
name of each member of The Florida Bar shallmust be used in the course of the
member’s practice of law. Members may change their official bar name by
sending a request to the Supreme Court of Florida. The court must approve all
official bar name changes.
RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP
(a) [No Change]
(b) Petitions Required. A member seeking reinstatement must file a
petition with the executive director setting forth the reason for inactive status,
retirement, or delinquency and showing good cause why the petition for
reinstatement should be granted. The petitioner must beinclude all required
information on a form approved by the board of governors and the petitioner will
furnish such information on such form as the board of governors may require. The
petition must be accompanied by a nonrefundable reinstatement fee of $150 and
payment of all arrearages unless adjusted by the executive director with
concurrence of the executive committee for good cause shown. Inactive members
are not required to pay the reinstatement fee. No member will be reinstated if,
from the petition or from investigation conducted, the petitioner is not of good
moral character and morally fit to practice law or if the member is delinquent with
the continuing legal education or basic skills course requirements.
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If the executive director is in doubt as to approval of a petition the executive
director may refer the petition to the board of governors for its action. Action of
the executive director or board of governors denying a petition for reinstatement
may be reviewed upon petition to the Supreme Court of Florida.
(c) Members Who Have Retired or Been Delinquent for Less Than 5
Years, But More Than 3 Years. Members who have retired or been delinquent
for less than 5 years, but more than 3 years, must have completed 10 hours of
continuing legal education courses for each year or portion of a year that the
member had retired or was deemed delinquent.
(d) Members Who Have Retired or Been Delinquent for 5 Years or
More. Members who have retired or have been deemed delinquent for a period of
5 years or longer will not be reinstated under this rule and must be readmitted upon
application to and approval by the Florida Board of Bar Examiners and approval
by the Supreme Court of Florida.
(e) [No Change]
(f) Members Delinquent 60 Days or Less. Reinstatement from
membership fees delinquency for payment of membership fees or completion of
continuing legal education or basic skills course requirements
accomplishedapproved within 60 days from the date of delinquency relates back to
the dateis effective on the last business day before the delinquency. Any member
reinstated within the 60-day period is not subject to disciplinary sanction for
practicing law in Florida during that time.
(g) [No Change]
RULE 3-5.1 GENERALLY
A judgment entered, finding a member of The Florida Bar guilty of
misconduct, shallwill include one1 or more of the following disciplinary measures:
(a) Admonishments. A Supreme Court of Florida order finding minor
misconduct and adjudging an admonishment may direct the respondent to appear
before the Supreme Court of Florida, the board of governors, grievance committee,
or the referee for administration of the admonishment. A grievance committee
report and finding of minor misconduct or the board of governors, upon review of
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suchthe report, may direct the respondent to appear before the board of governors
or the grievance committee for administration of the admonishment. A
memorandum of administration of an admonishment shall thereafterwill be made a
part of the record of the proceeding after the admonishment is administered.
(b) Minor Misconduct. Minor misconduct is the only type of misconduct
for which an admonishment is an appropriate disciplinary sanction.
(1) Criteria. In the absence of unusual circumstances misconduct
shallwill not be regarded as minor if any of the following conditions exist:
(A) – (F) [No Change]
(2) Discretion of Grievance Committee. Despite the presence of 1
or more of the criteria described in subdivision (1) above, aA grievance committee
may recommend an admonishment for minor misconduct or diversion to a practice
and professionalism enhancement program when unusual circumstances are
present, despite the presence of 1 or more of the criteria described in subpart (1) of
this rule. When the grievance committee recommends an admonishment for minor
misconduct or diversion to a practice and professionalism enhancement program
under suchthese circumstances, its report shallwill contain a detailed explanation of
the circumstances giving rise to the committee’s recommendation.
(3) Recommendation of Minor Misconduct. If a grievance
committee finds the respondent guilty of minor misconduct or if the respondent
shall admits guilt of minor misconduct and the committee concurs, the grievance
committee shallwill file its report recommending an admonishment, the manner of
administration, the taxing of costs, and an assessment or administrative fee in the
amount of $1,250 against the respondent. The report recommending an
admonishment shallwill be forwarded to staff counsel and the designated reviewer
for review. If staff counsel does not return the report to the grievance committee to
remedy a defect therein the report, or if the report is not referred to the disciplinary
review committee by the designated reviewer [as provided in rule 3-7.5(b)], the
report shallwill then be served on the respondent by bar counsel. The report and
finding of minor misconduct shall becomes final unless rejected by the respondent
within 15 days after service of the report. If rejected by the respondent, the report
shallwill be referred to bar counsel and referee for trial on complaint of minor
misconduct to be prepared by bar counsel as in the case of a finding of probable
cause. If the report of minor misconduct is not rejected by the respondent, notice
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of the finding of minor misconduct shallwill be given, in writing, to the
complainant.
(4) Rejection of Minor Misconduct Reports. The rejection by the
board of governors of a grievance committee report of minor misconduct, without
dismissal of the case, or remand to the grievance committee, shall beis deemed a
finding of probable cause. The rejection of sucha report by a respondent shall beis
deemed a finding of probable cause for minor misconduct. UponAt trial before a
referee following rejection by a respondent of a report of minor misconduct, the
referee may recommend any discipline authorized under these rules.
(5) Admission of Minor Misconduct. Within 15 days after a finding
of probable cause by a grievance committee, aA respondent may tender a written
admission of minor misconduct to bar counsel or to the grievance committee
within 15 days after a finding of probable cause by a grievance committee. An
admission of minor misconduct may be conditioned upon acceptance by the
grievance committee, but the respondent may not condition the admission of minor
misconduct upon the method of administration of the admonishment or upon
nonpayment of costs incurred in the proceedings. Such aAn admission may be
tendered after a finding of probable cause (but before the filing of a complaint)
only if such an admission has not been previously tendered. If the admission is
tendered after a finding of probable cause, the grievance committee may consider
suchthe admission without further evidentiary hearing and may either reject the
admission, thereby affirming its prior action, or accept the admission and issue its
report of minor misconduct. If a respondent’s admission is accepted by the
grievance committee, the respondent may not thereafterlater reject a report of the
committee recommending an admonishment for minor misconduct. If the
admission of minor misconduct is rejected, suchthe admission shallmay not be
considered or used against the respondent in subsequent proceedings.
(c) Probation. The respondent may be placed on probation for a stated
period of time of not less than 6 months nor more than 5 years or for an indefinite
period determined by conditions stated in the order. The judgment shallwill state
the conditions of the probation, which may include but are not limited to the
following:
(1) – (2) [No Change]
(3) the making ofrequired reportsing to a designated agency;
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(4) the satisfactory completion of a course of study or a paper on
legal ethics approved by the Supreme Court of Florida;
(5) such supervision over fees and trust accounts as the court may
directs; or
(6) [No Change]
The respondent will reimburse the bar for the costs of supervision. Upon
failure of a respondent to comply with the conditions of the probation or a finding
of probable cause as to conduct of the respondent committed during the period of
probation, tThe respondent may be punished for contempt on petition by The
Florida Bar, as provided elsewhere in these Rules Regulating The Florida Bar., on
failure of a respondent to comply with the conditions of the probation or a finding
of probable cause as to conduct of the respondent committed during the period of
probation. An order of the court imposing sanctions for contempt under this rule
may also terminate the probation previously imposed.
(d) Public Reprimand. A public reprimand shallwill be administered in
the manner prescribed in the judgment but all such reprimands shallwill be
reported in the Southern Reporter. Due notice shallwill be given to the respondent
of any proceeding set to administer the reprimand. The respondent shallmust
appear personally before the Supreme Court of Florida, the board of governors,
any judge designated to administer the reprimand, or the referee, if required, and
suchthis appearance shallwill be made a part of the record of the proceeding.
(e) Suspension. The respondent may be suspended from the practice of
law for a definite period of time or an indefinite period thereafter to be determined
by the conditions imposed by the judgment or order or until further order of the
court. During suchthis suspension the respondent shall continues to be a member
of The Florida Bar but without the privilege of practicing. A suspension of 90
days or less shalldoes not require proof of rehabilitation or passage of the Florida
bar examination and the respondent shallwill become eligible for all privileges of
members of The Florida Bar upon the expiration of the period of suspension. A
suspension of more than 90 days shall requires proof of rehabilitation and may
require passage of all or part of the Florida bar examination and the respondent
shallwill not become eligible for all privileges of members of The Florida Bar until
the court enters an order reinstating the respondent to membership in The Florida
Bar. No suspension shallwill be ordered for a specific period of time in excess
ofmore than 3 years.
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Unless waived or modified by the court on motion of the respondent
showing good cause, aAn order or opinion imposing a suspension of 90 days or
less shallwill include a provision that prohibits the respondent from accepting new
business from the date of the order or opinion until the end of the term of the
suspension and shallwill provide that the suspension is effective 30 days from the
date of the order or opinion so that the respondent may close out the practice of
law and protect the interests of existing clients., unless the court orders otherwise.
Unless waived or modified by the court on motion of the respondent
showing good cause, aAn order or opinion imposing a suspension of more than 90
days shallwill include a provision that prohibits the respondent from accepting new
business from the date of the order or opinion until the date of the court’s order of
reinstatement and shallwill provide that the suspension is effective 30 days from
the date of the order or opinion so that the respondent may close out the practice of
law and protect the interests of existing clients., unless the court orders otherwise.
(f) Disbarment. A judgment of disbarment terminates the respondent’s
status as a member of the bar. Permanent disbarment shall precludes readmission.
A former member who has not been permanently disbarred may only be admitted
again upon full compliance with the rules and regulations governing admission to
the bar. Except as might be otherwise provided in these rules, no application for
readmission may be tendered within 5 years after the date of disbarment or sucha
longer period asordered by the court might determine in the disbarment order and
thereafteror at any time after that date until all court-ordered restitution and
outstanding disciplinary costs have been paid.
Disbarment is the presumed sanction for lawyers found guilty of theft from a
lawyer’s trust account or special trust funds received or disbursed by a lawyer as
guardian, personal representative, receiver, or in a similar capacity such as trustee
under a specific trust document. A respondent found guilty of such theft shallwill
have the opportunity to offer competent, substantial evidence to rebut the
presumption that disbarment is appropriate.
Unless waived or modified by the court on motion of the respondent, an
order or opinion imposing disbarment shallwill include a provision that prohibits
the respondent from accepting new business from the date of the order or opinion
and shallwill provide that the disbarment is effective 30 days from the date of the
order or opinion so that the respondent may close out the practice of law and
protect the interests of existing clients.
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(g) [No Change]
(h) Notice to Clients. Unless the court orders otherwise, Uponwhen
service on the respondent is served with of an order of disbarment, disbarment on
consent, disciplinary revocation, suspension, emergency suspension, emergency
probation, or placement on the inactive list for incapacity not related to
misconduct, the respondent shallmust, unless this requirement is waived or
modified in the court’s order, forthwithimmediately furnish a copy of the order to:
(1) [No Change]
(2) all opposing counsel or co-counsel in the matters listed in (1),
above; and
(3) all courts, tribunals, or adjudicative agencies before which the
respondent is counsel of record.; and
(4) all state, federal, or administrative bars of which respondent is a
member.
Within 30 days after service of the order the respondent shallmust furnish
bar counsel with a sworn affidavit listing the names and addresses of all persons
and entities that have been furnished copies of the order.
(i) [No Change]
(j) Restitution. In addition to any of the foregoing disciplinary sanctions
and any disciplinary sanctions authorized elsewhere in these rules, the respondent
may be ordered or agree to pay restitution to a complainant or other person if the
disciplinary order finds that the respondent has received a clearly excessive, illegal,
or prohibited fee or that the respondent has converted trust funds or property. In
such instances tThe amount of restitution shallwill be specifically set forth in the
disciplinary order or agreement and shallwill not exceed the amount by which a fee
is clearly excessive, in the case of a prohibited or illegal fee shallwill not exceed
the amount of suchthe fee, or in the case of conversion shallwill not exceed the
amount of the conversion established in disciplinary proceedings. The disciplinary
order or agreement shallwill also state to whom restitution shallmust be made and
the date by which it shallmust be completed. Failure to comply with the order or
agreement shallwill cause the respondent to become a delinquent member and will
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not preclude further proceedings under these rules. The respondent must provide
the bar with telephone numbers and current addresses of all individuals or entities
to whom the respondent is ordered to pay restitution.
RULE 3-5.2 EMERGENCY SUSPENSION AND INTERIM
PROBATION OR INTERIM PLACEMENT ON THE
INACTIVE LIST FOR INCAPACITY NOT RELATED
TO MISCONDUCT
(a) Petition for Emergency Suspension.
(1) Great Public Harm. On petition of The Florida Bar, authorized
by its president, president-elect, or executive director, supported by 1 or more
affidavits demonstrating facts personally known to the affiants that, if unrebutted,
would establish clearly and convincingly that an attorneya lawyer appears to be
causing great public harm, the Supreme Court of Florida may issue an order
suspending the said attorneylawyer on an emergency basis.
(2) Discipline by Foreign Jurisdiction. On petition of The Florida
Bar, authorized by its president, president-elect, or executive director, supported by
a certified copy of an order of a foreign disciplinary jurisdiction suspending or
disbarring an attorneya lawyer from the practice of law, the Supreme Court of
Florida may issue an order suspending the attorneylawyer on an emergency basis.
See subdivision (l) of rule 3-7.2.
A petition for emergency suspension shallwill also constitute a formal
complaint. The respondent shallwill have 20 days after docketing by the Supreme
Court of Florida of its order granting the bar’s petition for emergency suspension
in which to file an answer and any affirmative defenses to the bar’s petition.
(b) Petition for Interim Probation or Interim Placement on the
Inactive List for Incapacity Not Related to Misconduct. On petition of The
Florida Bar, authorized by its president, president-elect, or executive director,
supported by 1 or more affidavits demonstrating facts personally known to the
affiants that, if unrebutted, would establish clearly and convincingly that
conditions or restrictions on a lawyer’s privilege to practice law in Florida are
necessary for protection of the public, the Supreme Court of Florida may issue an
order placing said lawyer on interim probation, the conditions of which shall be as
provided in rule 3-5.1(c); or placing the lawyer on the inactive list for incapacity
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not related to misconduct as provided in rule 3-7.13. The Supreme Court of
Florida may issue an order placing a lawyer on interim probation, under the
conditions provided in subdivision (c) of rule 3-5.1 or placing the lawyer on the
inactive list for incapacity not related to misconduct as provided in rule 3-7.13.
Such order may be issued upon petition of The Florida Bar, authorized by its
president, president-elect, or executive director, supported by 1 or more affidavits
demonstrating facts personally known to the affiants that, if unrebutted, would
establish clearly and convincingly that conditions or restrictions on a lawyer’s
privilege to practice law in Florida are necessary for protection of the public. This
petition shallwill also constitute the formal complaint. The respondent shallwill
have 20 days after docketing by the Supreme Court of Florida of its order granting
the bar’s petition for interim probation in which to file an answer and any
affirmative defenses to the bar’s petition.
(c) Trust Accounts. Any order of emergency suspension or probation that
restricts the attorney in maintaining a trust account shall, whenwill be served on
the respondent and any bank or other financial institution maintaining an account
against which said attorneythe respondent may make withdrawals,. The order will
serve as an injunction to prevent saidthe bank or financial institution from making
further payment from suchthe trust account or accounts on any obligation except in
accordance with restrictions imposed by the court through subsequent orders
issued by a court-appointed referee. Bar counsel will serve a copy of the Supreme
Court of Florida’s order freezing a lawyer’s trust account via first class mail on the
bank(s) in which the respondent’s trust account is held.
(1) The court’s order appointing a referee under this rule may
authorize the referee to determine entitlement to funds in the frozen trust account.
Any client or third party claiming to be entitled to funds in the frozen trust account
must file a petition requesting release of frozen trust account funds with the referee
appointed in the case, accompanied by proof of entitlement to the funds.
(2) Bar counsel and bar auditors will provide information to the
appointed referee from bar audits and other existing information regarding persons
claiming ownership of frozen trust account funds. The bar will notify persons
known to bar staff in writing via regular first class mail of their possible interest in
funds contained in the frozen trust account. The notices will include a copy of the
form of a petition requesting release of frozen trust account funds, to be filed with
the referee and instructions for completing the form. The bar will publish, in the
local county or city newspaper published where the lawyer practiced before
suspension, a notice informing the public that the lawyer’s trust account has been
- 20 -
frozen and those persons with claims on the funds should contact listed bar counsel
within 30 days after publication whenever possible.
(A) If there are no responses to the notices mailed and
published by the bar within 90 days from the date of the notice or if the amount in
the frozen trust account is over $100,000, a receiver may be appointed by the
referee to determine the person rightfully entitled to the frozen trust funds. The
receiver will be paid from the corpus of the trust funds unless the referee orders
otherwise.
(B) In all other instances, a referee shall determine who is
entitled to funds in the frozen trust account, unless the amount in the frozen trust
account is $5,000 or less and no persons with potential entitlement to frozen trust
account funds respond to the bar’s mailed or published notices within 90 days from
the date of the notice. In such event, the funds will be unfrozen.
(d) Referee Review of Frozen Trust Account Petitions. The referee will
determine when and how to pay the claim of any person entitled to funds in the
frozen trust account after reviewing the bar’s audit report, the lawyer’s trust
account records, the petitions filed or the receiver’s recommendations. If the bar’s
audit report or other reliable evidence shows that funds have been stolen or
misappropriated from the lawyer’s trust account, then the referee may hold a
hearing. Subchapter 3-7 will not apply to a referee hearing under this rule. No
pleadings will be filed, only petitions requesting release of frozen trust account
funds. The parties to this referee proceeding will be those persons filing a petition
requesting release of frozen trust account funds. The bar will not be a party to the
proceeding. The referee’s order will be the final order in the matter unless one of
the parties petitions for review of the referee’s order to the Supreme Court of
Florida. The sole issue before the referee will be determination of ownership of
the frozen trust account funds. The referee will determine the percentage of
monies missing from the respondent’s trust account and the amounts owing to
those petitioners requesting release of frozen trust account funds. A pro rata
distribution is the method of distribution when there are insufficient funds in the
account to pay all claims in full. The referee’s decision is subject only to direct
petition for review of the referee’s final order by a party claiming an ownership
interest in the frozen trust funds. The petition for review must be filed within 60
days of the referee’s final order. The schedule for filing of briefs in the appellate
process will be as set forth in subchapter 3-7 of these rules.
- 21 -
(e) Separate Funds in Frozen Trust Accounts. The referee will order
return of any separate funds to their rightful owner(s) in full upon their filing a
petition requesting release of frozen trust account funds with proof of entitlement
to the funds. Separate funds are monies deposited into the respondent’s trust
account after the misappropriation, which are not affected by the misappropriation,
and funds that have been placed into a separate segregated individual trust account
under the individual client’s tax identification number.
(df) New Cases and Existing Clients. Any order of emergency suspension
issued under this rule shallwill immediately preclude the attorney from accepting
any new cases and unless otherwise ordered permit the attorney to continue to
represent existing clients for only the first 30 days after issuance of suchan
emergency order. Any fees paid to the suspended attorney during the 30-day
period shallwill be deposited in a trust account from which withdrawals may be
made only in accordance with restrictions imposed by the court.
(eg) Motions for Dissolution. The lawyer may move at any time for
dissolution or amendment of an emergency order by motion filed with the Supreme
Court of Florida, a copy of which will be served on bar counsel. SuchThe motion
shallwill not stay any other proceedings and applicable time limitations in the case
and, unless the motion fails to state good cause or is procedurally barred as an
invalid successive motion, shallwill immediately be assigned to a referee
designated by the chief justice. The filing of suchthe motion shallwill not stay the
operation of an order of emergency suspension or interim probation entered under
this rule.
(fh) Appointment of Referee. UpoOn entry of an order of suspension or
interim probation, as provided above, the Supreme Court of Florida shallwill
promptly appoint or direct the appointment of a referee. On determination that
funds have been misappropriated from a lawyer’s trust account as provided above,
the Supreme Court of Florida will promptly appoint or direct the appointment of a
referee.
(gi) Hearing on Petition to Terminate or Modify Suspension. The
referee shallwill hear a motion to terminate or modify a suspension or interim
probation imposed under this rule within 7 days of assignment and submit a report
and recommendation to the Supreme Court of Florida within 7 days of the date of
the hearing. The referee shallwill recommend dissolution or amendment,
whichever is appropriate, to the extent that bar counsel cannot demonstrate a
- 22 -
likelihood of prevailing on the merits on any element of the underlying rule
violations.
(hj) Successive Motions Prohibited. Successive motions for dissolution
shallwill be summarily dismissed by the Supreme Court of Florida to the extent
that they raise issues that were or with due diligence could have been raised in a
prior motion.
(ik) Review by the Supreme Court of Florida. UpoOn receipt of the
referee’s recommended order on the motion for dissolution or amendment, the
Supreme Court of Florida shallwill review and act upon the referee’s findings and
recommendations regarding emergency suspensions and interim probations. This
subdivision does not apply to a referee’s final order to determine ownership of
funds in frozen trust accounts. These final orders of referee are reviewable by the
Supreme Court of Florida only if a party timely files a petition for review pursuant
to this rule. Briefing schedules following the petition for review will be as set
forth in subchapter 3-7 of these rules.
(jl) Hearings on Issues Raised in Petitions for Emergency
Suspension or Interim Probation and Sanctions. Once the Supreme Court of
Florida has granted a petition for emergency suspension or interim probation as set
forth in this rule, the referee appointed by the court shallwill hear the matter in the
same manner as provided in rule 3-7.6, except that the referee shallwill hear the
matter after the lawyer charged shall havehas answered the charges in the petition
for emergency suspension or interim probation or when the time has expired for
filing an answer. The referee shallwill issue a final report and recommendation
within 90 days of appointment. If the time limit specified in this subdivision is not
met, that portion of an emergency order imposing a suspension or interim
probation shallwill be automatically dissolved, except upon order of the Supreme
Court of Florida, provided that any other appropriate disciplinary action on the
underlying conduct still may be taken.
(km) Proceedings in the Supreme Court of Florida. Consideration of
the referee’s report and recommendation shallregarding emergency suspension and
interim probation will be expedited in the Supreme Court of Florida. If oral
argument is granted, the chief justice shallwill schedule oral argument as soon as
practicable.
- 23 -
(ln) Waiver of Time Limits. The respondent may at any time waive
the time requirements set forth in this rule by written request made to and approved
by the referee assigned to hear the matter.
RULE 3-5.3 DIVERSION OF DISCIPLINARY CASES TO PRACTICE
AND PROFESSIONALISM ENHANCEMENT
PROGRAMS
(a) – (b) [No Change]
(c) Limitation on Diversion. A respondent who has been the subject of a
prior diversion within 7 years shall not be is not eligible for diversion for the same
type of rule violation for a period of 5 years after the earlier diversion. However, a
respondent who has been the subject of a prior diversion and then is alleged to
have violated a completely different type of rule at least 1 year after the initial
diversion, will be eligible for a practice and professionalism enhancement
program.
(d) – (l) [No Change]
COMMENT
As to subdivision (c) of 3-5.3, a lawyer who agreed to attend the Advertising
Workshop in 1 year would not be eligible for another such diversion for an
advertising violation for a period of 5 years following the first diversion.
However, that same lawyer would be eligible to attend the Advertising Workshop
1 year and a Trust Account Workshop for a completely different violation 1 year
after the first diversion is completed.
RULE 3-7.9 CONSENT JUDGMENT
(a) – (c) [No Change]
(d) Content of Conditional Pleas. All conditional pleas shall show
clearly by reference or otherwise the disciplinary offenses to which the plea is
made. All conditional pleas in which the respondent agrees to the imposition of a
suspension or disbarment shall include an acknowledgment that, unless waived or
modified by the court on motion of the respondent, the court order accepting the
- 24 -
conditional plea will contain a provision that prohibits the respondent from
accepting new business from the date of the order or opinion and shall provide that
the suspension or disbarment is effective 30 days from the date of the order or
opinion so that the respondent may close out the practice of law and protect the
interests of existing clients. A conditional plea may not permit a respondent to
begin serving a suspension or disbarment until the Supreme Court of Florida issues
an order or opinion approving the recommended discipline.
(e) – (f) [No Change]
RULE 3-7.10 REINSTATEMENT AND READMISSION
PROCEDURES
(a) [No Change]
(b) Petitions; Form and Contents.
(1) Filing. The original petition for reinstatement and 1 copy must
be in writing, verified by the petitioner, and addressed to and filed with the
Supreme Court of Florida in compliance with the Florida Rules of Civil Procedure
and the Florida Rules of Judicial Administration. A copy must be served on Staff
Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-
2300in compliance with applicable court rules. The petition for reinstatement may
not be filed until the petitioner has completed at least 80% of the term of that
lawyer’s period of suspension.
(2) Form and Exhibits. The petition must be in suchthe form and
accompanied by suchthe exhibits as provided for elsewhere in this rule. The
information required concerning the petitioner may include any or all of the
following matters in addition to suchany other matters asthat may be reasonably
required to determine the fitness of the petitioner to resume the practice of law:
criminal and civil judgments; disciplinary judgments; copies of income tax returns
together with consents to secure original returns; occupation during suspension and
employment related information; financial statements; and statement of restitution
of funds that were the subject matter of disciplinary proceedings. In cases seeking
reinstatement from incapacity, the petition must also include copies of all
pleadings in the matter leading to placement on the inactive list and all such other
matters as may be reasonably required to demonstrate the character and fitness of
the petitioner to resume the practice of law.
- 25 -
(c) Deposit for Cost. The petition must be accompanied by proof of a
deposit paid to The Florida Bar in suchthe amount as the board of governors
prescribes to ensure payment of reasonable costs of the proceedings, as provided
elsewhere in this rule.
(d) Reference of Petition Forfor Hearing. The chief justice will refer the
petition for reinstatement to a referee for hearing; provided, however, that no such
referencereferral will be made until evidence is submitted showing that all costs
assessed against the petitioner in all disciplinary or incapacity proceedings have
been paid and restitution has been made.
(e) Bar Counsel. When a petition for reinstatement is filed, the board of
governors or staff counsel, if authorized by the board of governors, may appoint
bar counsel to represent The Florida Bar in the proceeding. The duties of such
lawyers arelawyer’s duty is to appear at the hearings and to prepare and present to
the referee evidence that, in the opinion of the referee or such lawyer, shouldwill
be considered in passing upon the petition.
(f) Determination of Fitness by Referee Hearing. The referee to whom
the petition for reinstatement is referred must conduct the hearing as a trial, in the
same manner, to the extent practical, as provided elsewhere in these rules. The
matter to decide isreferee must decide the fitness of the petitioner to resume the
practice of law. In determining the fitness of the petitioner to resume the practice
of lawmaking this determination, the referee will consider whether the petitioner
has engaged in any disqualifying conduct, the character and fitness of the
petitioner, and whether the petitioner has been rehabilitated, as further described in
this subdivision. All conduct engaged in after the date of admission to The Florida
Bar is relevant in proceedings under this rule.
(1) Disqualifying Conduct. A record manifesting a deficiency in
the honesty, trustworthiness, diligence, or reliability of a petitioner may constitute
a basis for denial of reinstatement. The following are considered disqualifying
conduct:
(A) – (N) [No Change]
(O) any other conduct that reflects adverselyadversely
reflects upon the character or fitness of the applicant.
- 26 -
(2) Determination of Character and Fitness. In addition to other
factors in making this determination, the following factors shouldwill be
considered in assigning weight and significance to prior conduct:
(A) – (J) [No Change]
(3) Elements of Rehabilitation. Merely showing that an individual
is now living as and doing those things that should be done throughout life,
although necessary to prove rehabilitation, does not prove that the individual has
undertaken a useful and constructive place in society. Any petitioner for
reinstatement from discipline for prior misconduct is required to produce clear and
convincing evidence of such rehabilitation including, but not limited to, the
following elements:
(A) – (G) [No Change]
The requirement of positive action is appropriate for persons seeking
reinstatement to the bar as well as for applicants for admission to the bar because
service to one’s community is an essential obligation of members of the bar.
(4) Educational Requirements.
(A) [No Change]
(B) A petitioner who has been ineligible to practice for 5
years or more will not be reinstated under this rule until the petitioner has re-taken
and provided proof in the lawyer’s petition for reinstatement that the lawyer has
passed both the Florida portions of the Florida Bar Examination and the Multistate
Professional Responsibility Examination (MPRE).
(g) Hearing; Notice; Evidence.
(1) Notice. The referee to whom the petition for reinstatement is
referred will fix a time and place for hearing, and notice of the hearing will be
provided at least 10 days prior to the hearing to the petitioner, to lawyers
representing The Florida Bar, and to such other persons aswho may be designated
by the appointed referee to whom the petition is referred.
(2) [No Change]
- 27 -
(3) Failure of Petitioner to be Examined. For the failure of the
petitioner to submit to examination as a witness pursuant to notice given, the
referee will dismiss the petition for reinstatement unless good cause is shown for
suchthe failure.
(4) Summary Procedure. If after the completion of discovery bar
counsel is unable to discover any evidence on which denial of reinstatement may
be based and if no other person provides sameany relevant evidence, bar counsel
may, with the approval of the designated reviewer and staff counsel, stipulate to
the issue of reinstatement, including conditions for reinstatement. The stipulation
must include a statement of costs as provided elsewhere in these Rules Regulating
the Florida Bar.
(5) [No Change]
(h) – (i) [No Change]
(j) Recommendation of Referee and Judgment of the Court. If the
petitioner is found unfit to resume the practice of law, the petition will be
dismissed. If the petitioner is found fit to resume the practice of law, the referee
will enter a report recommending, and the court may enter an order of,
reinstatement of the petitioner in The Florida Bar; provided, however, that the
reinstatement may be conditioned upon the payment of all or part of the costs of
the proceeding and upon the making of partial or complete restitution to parties
harmed by the petitioner’s misconduct that led to the petitioner’s suspension of
membership in The Florida Bar or conduct that led to the petitioner’s incapacity;
and further provided, however, if suspension or incapacity of the petitioner has
continued for more than 3 years, the reinstatement may be conditioned upon the
furnishing of such proof of competency as may be required by the judgment in the
discretion of the Supreme Court of Florida,. which pProof may include
certification by the Florida Board of Bar Examiners of the successful completion
of an examination for admission to The Florida Bar subsequent to the date of the
suspension or incapacity.
(k) Successive Petitions. No petition for reinstatement may be filed within
1 year following an adverse judgment upon a petition for reinstatement filed by or
on behalf of the same person. In cases of incapacity no petition for reinstatement
may be filed within 6 months following an adverse judgment under this rule.
(l) Petitions for Reinstatement to Membership in Good Standing.
- 28 -
(1) [No Change]
(2) Style of Petition. Petitions must be styled in the Supreme Court
of Florida and an original and 1 copy filed with the courtSupreme Court of Florida
in accordance with the court’s filing requirements, including e-filing requirements
where applicable. A copy must be served on Staff Counsel, The Florida Bar, 651
East Jefferson Street, Tallahassee, Florida 32399-2300.
(3) Contents of Petition. The petition must be verified by the
petitioner and accompanied by a written authorization to the District Director of
the Internal Revenue Service, authorizing the furnishing of certified copies of the
petitioner’s tax returns for the past 5 years or since admission to the bar, whichever
is greater. The authorization must be furnished on a separate sheet. The petition
must have attached as an exhibit a true copy of all disciplinary judgments
previously entered against the petitioner. It must also include the petitioner’s
statement concerning the following:
(A) [No Change]
(B) the conduct, offense, or misconduct upon which the
suspension or incapacity was based, together with the date of such suspension or
incapacity;
(C) the names and addresses of all complaining witnesses in
any disciplinary proceedings that resulted in suspension; and the name and address
of the referee or judge who heard suchthese disciplinary proceedings or of the trial
judge, complaining witnesses, and prosecuting lawyer, if suspension was based
upon conviction of a felony or misdemeanor involving moral turpitude;
(D) the nature of the petitioner’s occupation in detail since
suspension or incapacity, with names and addresses of all partners, associates in
business, and employers, if any, and dates and duration of all suchthese relations
and employments;
(E) a statement showing the approximate monthly earnings
and other income of the petitioner and the sources from which all such earnings
and income were derived during saidthis period;
- 29 -
(F) a statement showing all residences maintained during
saidthis period, with names and addresses of landlords, if any;
(G) – (I) [No Change]
(J) a statement as to whether any applications were made
during the period of suspension for a license requiring proof of good character for
its procurement; and, as tofor each such application, the date and the name and
address of the authority to whom it was addressed and its disposition;
(K) a statement of any procedure or inquiry, during the
period of suspension, covering the petitioner’s standing as a member of any
profession or organization, or holder of any license or office, that involved the
censure, removal, suspension, revocation of license, or discipline of the petitioner;
and, as to each, the dates, facts, and the disposition, and the name and address of
the authority in possession of these records;
(L) a statement as to whether any charges of fraud were
made or claimed against the petitioner during the period of suspension, whether
formal or informal, together with the dates and names and addresses of persons
making suchthese charges;
(M) [No Change]
(N) a statement showing the dates, general nature, and final
disposition of every civil action in which the petitioner was either a party plaintiff
or defendant, together with dates of filing of complaints, titles of courts and causes,
and the names and addresses of all parties and of the trial judge or judges, and
names and addresses of all witnesses who testified in saidthis action or actions; and
(O) a statement showing what amounts, if any, of the costs
assessed against the accused lawyer in the prior disciplinary proceedings against
the petitioner have been paid by the petitioner and the source and amount of funds
used for this purpose.
(4) Comments on Petition. UpoOn the appointment of a referee
and bar counsel, copies of the petition will be furnished by the bar counsel to local
board members, local grievance committees, and to such other persons as are
mentioned in this rule. Persons or groups that wish to respond must direct their
comments to bar counsel. The proceedings and finding of the referee will relate to
- 30 -
those matters described in this rule and also to those matters tending to show the
petitioner’s rehabilitation, present fitness to resume the practice of law, and the
effect of suchthe proposed reinstatement upon the administration of justice and
purity of the courts and confidence of the public in the profession.
(5) [No Change]
(m) – (n) [No Change]
COMMENT
[No Change]
RULE 4-1.6 CONFIDENTIALITY OF INFORMATION
(a) [No Change]
(b) When Lawyer Must Reveal Information. A lawyer must reveal
suchconfidential information to the extent the lawyer reasonably believes
necessary:
(1) – (2) [No Change]
(c) When Lawyer May Reveal Information. A lawyer may reveal
suchconfidential information to the extent the lawyer reasonably believes
necessary:
(1) – (2) [No Change]
(3) to establish a defense to a criminal charge or civil claim against
the lawyer based upon conduct in which the client was involved;
(4) to respond to allegations in any proceeding concerning the
lawyer’s representation of the client; or
(5) to comply with the Rules Regulating The Florida Bar.; or
(6) to detect and resolve conflicts of interest between lawyers in
different firms arising from the lawyer’s change of employment or from changes in
- 31 -
the composition or ownership of a firm, but only if the revealed information would
not compromise the attorney-client privilege or otherwise prejudice the client.
(d) Exhaustion of Appellate Remedies. When required by a tribunal to
reveal suchconfidential information, a lawyer may first exhaust all appellate
remedies.
(e) Inadvertent Disclosure of Information. A lawyer must make
reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or
unauthorized access to, information relating to the representation of a client.
(ef) Limitation on Amount of Disclosure. When disclosure is mandated
or permitted, the lawyer must disclose no more information than is required to
meet the requirements or accomplish the purposes of this rule.
COMMENT
The lawyer is part of a judicial system charged with upholding the law. One
of the lawyer’s functions is to advise clients so that they avoid any violation of the
law in the proper exercise of their rights.
This rule governs the disclosure by a lawyer of information relating to the
representation of a client during the lawyer’s representation of the client. See rule
4-1.18 for the lawyer’s duties with respect to information provided to the lawyer
by a prospective client, rule 4-1.9(c) for the lawyer’s duty not to reveal information
relating to the lawyer’s prior representation of a former client, and rules 4-1.8(b)
and 4-1.9(b) for the lawyer’s duties with respect to the use of suchconfidential
information to the disadvantage of clients and former clients.
A fundamental principle in the client-lawyer relationship is that, in the
absence of the client’s informed consent, the lawyer must not reveal information
relating to the representation. See terminology for the definition of informed
consent. This contributes to the trust that is the hallmark of the client-lawyer
relationship. The client is thereby encouraged to seek legal assistance and to
communicate fully and frankly with the lawyer even as to embarrassing or legally
damaging subject matter. The lawyer needs this information to represent the client
effectively and, if necessary, to advise the client to refrain from wrongful conduct.
Almost without exception, clients come to lawyers in order to determine their
rights and what is, in the complex of laws and regulations, deemed to be legal and
- 32 -
correct. Based upon experience, lawyers know that almost all clients follow the
advice given, and the law is upheld.
The principle of confidentiality is given effect in 2 related bodies of law, the
attorney-client privilege (which includes the work product doctrine) in the law of
evidence and the rule of confidentiality established in professional ethics. The
attorney-client privilege applies in judicial and other proceedings in which a
lawyer may be called as a witness or otherwise required to produce evidence
concerning a client. The rule of client-lawyer confidentiality applies in situations
other than those where evidence is sought from the lawyer through compulsion of
law. The confidentiality rule applies not merely to matters communicated in
confidence by the client but also to all information relating to the representation,
whatever its source. A lawyer may not disclose suchconfidential information
except as authorized or required by the Rules Regulating The Florida Bar or by
law. However, none of the foregoing limits the requirement of disclosure in
subdivision (b). This disclosure is required to prevent a lawyer from becoming an
unwitting accomplice in the fraudulent acts of a client. See also Scope.
The requirement of maintaining confidentiality of information relating to
representation applies to government lawyers who may disagree with the policy
goals that their representation is designed to advance.
Authorized disclosure
A lawyer is impliedly authorized to make disclosures about a client when
appropriate in carrying out the representation, except to the extent that the client’s
instructions or special circumstances limit that authority. In litigation, for
example, a lawyer may disclose information by admitting a fact that cannot
properly be disputed or in negotiation by making a disclosure that facilitates a
satisfactory conclusion.
Lawyers in a firm may, in the course of the firm’s practice, disclose to each
other information relating to a client of the firm, unless the client has instructed
that particular information be confined to specified lawyers.
Disclosure adverse to client
The confidentiality rule is subject to limited exceptions. In becoming privy
to information about a client, a lawyer may foresee that the client intends serious
harm to another person. However, to the extent a lawyer is required or permitted to
- 33 -
disclose a client’s purposes, the client will be inhibited from revealing facts that
would enable the lawyer to counsel against a wrongful course of action. While the
public may be protected if full and open communication by the client is
encouraged, several situations must be distinguished.
First, the lawyer may not counsel or assist a client in conduct that is criminal
or fraudulent. See rule 4-1.2(d). Similarly, a lawyer has a duty under rule 4-
3.3(a)(4) not to use false evidence. This duty is essentially a special instance of the
duty prescribed in rule 4-1.2(d) to avoid assisting a client in criminal or fraudulent
conduct.
Second, the lawyer may have been innocently involved in past conduct by
the client that was criminal or fraudulent. In such athis situation the lawyer has not
violated rule 4-1.2(d), because to "counsel or assist" criminal or fraudulent conduct
requires knowing that the conduct is of that character.
Third, the lawyer may learn that a client intends prospective conduct that is
criminal. As stated in subdivision (b)(1), the lawyer must reveal information in
order to prevent suchthese consequences. It is admittedly difficult for a lawyer to
“know” when the criminal intent will actually be carried out, for the client may
have a change of mind.
Subdivision (b)(2) contemplates past acts on the part of a client that may
result in present or future consequences that may be avoided by disclosure of
otherwise confidential communications. Rule 4-1.6(b)(2) would now require the
lawyer to disclose information reasonably necessary to prevent the future death or
substantial bodily harm to another, even though the act of the client has been
completed.
The lawyer’s exercise of discretion requires consideration of such factors as
the nature of the lawyer’s relationship with the client and with those who might be
injured by the client, the lawyer’s own involvement in the transaction, and factors
that may extenuate the conduct in question. Where practical the lawyer should
seek to persuade the client to take suitable action. In any case, a disclosure adverse
to the client’s interest should be no greater than the lawyer reasonably believes
necessary to the purpose.
Withdrawal
- 34 -
If the lawyer’s services will be used by the client in materially furthering a
course of criminal or fraudulent conduct, the lawyer must withdraw, as stated in
rule 4-1.16(a)(1).
After withdrawal the lawyer is required to refrain from making disclosure of
the client’s confidences, except as otherwise provided in rule 4-1.6. Neither this
rule nor rule 4-1.8(b) nor rule 4-1.16(d) prevents the lawyer from giving notice of
the fact of withdrawal, and the lawyer may also withdraw or disaffirm any opinion,
document, affirmation, or the like.
Where the client is an organization, the lawyer may be in doubt whether
contemplated conduct will actually be carried out by the organization. Where
necessary to guide conduct in connection with the rule, the lawyer may make
inquiry within the organization as indicated in rule 4-1.13(b).
Dispute concerning lawyer’s conduct
A lawyer’s confidentiality obligations do not preclude a lawyer from
securing confidential legal advice about the lawyer’s personal responsibility to
comply with these rules. In most situations, disclosing information to secure
suchthis advice will be impliedly authorized for the lawyer to carry out the
representation. Even when the disclosure is not impliedly authorized, subdivision
(c)(5) permits suchthis disclosure because of the importance of a lawyer’s
compliance with the Rules of Professional Conduct.
Where a legal claim or disciplinary charge alleges complicity of the lawyer
in a client’s conduct or other misconduct of the lawyer involving representation of
the client, the lawyer may respond to the extent the lawyer reasonably believes
necessary to establish a defense. The same is true with respect to a claim involving
the conduct or representation of a former client. The lawyer’s right to respond
arises when an assertion of such complicity has been made. Subdivision (c) does
not require the lawyer to await the commencement of an action or proceeding that
charges such complicity, so that the defense may be established by responding
directly to a third party who has made such anthe assertion. The right to defend, of
course, applies where a proceeding has been commenced. Where practicable and
not prejudicial to the lawyer’s ability to establish the defense, the lawyer should
advise the client of the third party’s assertion and request that the client respond
appropriately. In any event, disclosure should be no greater than the lawyer
reasonably believes is necessary to vindicate innocence, the disclosure should be
made in a manner that limits access to the information to the tribunal or other
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persons having a need to know it, and appropriate protective orders or other
arrangements should be sought by the lawyer to the fullest extent practicable.
If the lawyer is charged with wrongdoing in which the client’s conduct is
implicated, the rule of confidentiality should not prevent the lawyer from
defending against the charge. Such aA charge can arise in a civil, criminal, or
professional disciplinary proceeding and can be based on a wrong allegedly
committed by the lawyer against the client or on a wrong alleged by a third person;
for example, a person claiming to have been defrauded by the lawyer and client
acting together. A lawyer entitled to a fee is permitted by subdivision (c) to prove
the services rendered in an action to collect it. This aspect of the rule expresses the
principle that the beneficiary of a fiduciary relationship may not exploit it to the
detriment of the fiduciary. As stated above, the lawyer must make every effort
practicable to avoid unnecessary disclosure of information relating to a
representation, to limit disclosure to those having the need to know it, and to obtain
protective orders or make other arrangements minimizing the risk of disclosure.
Disclosures otherwise required or authorized
The attorney-client privilege is differently defined in various jurisdictions.
If a lawyer is called as a witness to give testimony concerning a client, absent
waiver by the client, rule 4-1.6(a) requires the lawyer to invoke the privilege when
it is applicable. The lawyer must comply with the final orders of a court or other
tribunal of competent jurisdiction requiring the lawyer to give information about
the client.
The Rules of Professional Conduct in various circumstances permit or
require a lawyer to disclose information relating to the representation. See rules 4-
2.3, 4-3.3, and 4-4.1. In addition to these provisions, a lawyer may be obligated or
permitted by other provisions of law to give information about a client. Whether
another provision of law supersedes rule 4-1.6 is a matter of interpretation beyond
the scope of these rules, but a presumption should exist against such a
supersession.
Detection of Conflicts of Interest
Subdivision (c)(6) recognizes that lawyers in different firms may need to
disclose limited information to each other to detect and resolve conflicts of interest,
for example, when a lawyer is considering an association with another firm, two or
more firms are considering a merger, or a lawyer is considering the purchase of a
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law practice. See comment to rule 4-1.17. Under these circumstances, lawyers
and law firms are permitted to disclose limited information, but only once
substantive discussions regarding the new relationship have occurred. Any
disclosure should ordinarily include no more than the identity of the persons and
entities involved in a matter, a brief summary of the general issues involved, and
information about whether the matter has terminated. Even this limited
information, however, should be disclosed only to the extent reasonably necessary
to detect and resolve conflicts of interest that might arise from the possible new
relationship. The disclosure of any information is prohibited if it would
compromise the attorney-client privilege or otherwise prejudice the client (e.g., the
fact that a corporate client is seeking advice on a corporate takeover that has not
been publicly announced; that a person has consulted a lawyer about the possibility
of divorce before the person’s intentions are known to the person’s spouse; or that
a person has consulted a lawyer about a criminal investigation that has not led to a
public charge). Under those circumstances, subdivision (a) prohibits disclosure
unless the client or former client gives informed consent. A lawyer’s fiduciary
duty to the lawyer’s firm may also govern a lawyer’s conduct when exploring an
association with another firm and is beyond the scope of these rules.
Any information disclosed under this subdivision may be used or further
disclosed only to the extent necessary to detect and resolve conflicts of interest.
This subdivision does not restrict the use of information acquired by means
independent of any disclosure under this subdivision. This subdivision also does
not affect the disclosure of information within a law firm when the disclosure is
otherwise authorized, for example, when a lawyer in a firm discloses information
to another lawyer in the same firm to detect and resolve conflicts of interest that
could arise in connection with undertaking a new representation.
Acting Competently to Preserve Confidentiality
Paragraph (e) requires a lawyer to act competently to safeguard information
relating to the representation of a client against unauthorized access by third parties
and against inadvertent or unauthorized disclosure by the lawyer or other persons
who are participating in the representation of the client or who are subject to the
lawyer’s supervision. See rules 4-1.1, 4-5.1 and 4-5.3. The unauthorized access
to, or the inadvertent or unauthorized disclosure of, information relating to the
representation of a client does not constitute a violation of paragraph (e) if the
lawyer has made reasonable efforts to prevent the access or disclosure. Factors to
be considered in determining the reasonableness of the lawyer’s efforts include,
but are not limited to, the sensitivity of the information, the likelihood of disclosure
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if additional safeguards are not employed, the cost of employing additional
safeguards, the difficulty of implementing the safeguards, and the extent to which
the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by
making a device or important piece of software excessively difficult to use). A
client may require the lawyer to implement special security measures not required
by this rule or may give informed consent to forgo security measures that would
otherwise be required by this rule. Whether a lawyer may be required to take
additional steps to safeguard a client’s information in order to comply with other
law, for example state and federal laws that govern data privacy or that impose
notification requirements on the loss of, or unauthorized access to, electronic
information, is beyond the scope of these rules. For a lawyer’s duties when
sharing information with nonlawyers outside the lawyer’s own firm, see the
comment to rule 4-5.3.
When transmitting a communication that includes information relating to the
representation of a client, the lawyer must take reasonable precautions to prevent
the information from coming into the hands of unintended recipients. This duty,
however, does not require that the lawyer use special security measures if the
method of communication affords a reasonable expectation of privacy. Special
circumstances, however, may warrant special precautions. Factors to be
considered in determining the reasonableness of the lawyer’s expectation of
confidentiality include the sensitivity of the information and the extent to which
the privacy of the communication is protected by law or by a confidentiality
agreement. A client may require the lawyer to implement special security
measures not required by this rule or may give informed consent to the use of a
means of communication that would otherwise be prohibited by this rule. Whether
a lawyer may be required to take additional steps in order to comply with other
law, for example state and federal laws that govern data privacy, is beyond the
scope of these rules.
Former client
The duty of confidentiality continues after the client-lawyer relationship has
terminated. See rule 4-1.9 for the prohibition against using such information to the
disadvantage of the former client.
RULE 4-1.17 SALE OF LAW PRACTICE
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A lawyer or a law firm may sell or purchase a law practice, or an area of
practice, including good will, provided that:
(a) [No Change]
(b) Notice to Clients. Written notice is served by certified mail, return
receipt requested, upon each of the seller’s clients of:
(1) – (3) [No Change]
(c) Court Approval Required. If a representation involves pending
litigation, there shallwill be no substitution of counsel or termination of
representation unless authorized by the court. The seller may disclose, in camera,
to the court information relating to the representation only to the extent necessary
to obtain an order authorizing the substitution of counsel or termination of
representation.
(d) Client Objections. If a client objects to the proposed substitution of
counsel, the seller shallmust comply with the requirements of rule 4-1.16(d).
(e) Consummation of Sale. A sale of a law practice shallmay not be
consummated until:
(1) with respect to clients of the seller who were served with
written notice of the proposed sale, the 30-day period referred to in subdivision
(b)(3) has expired or all suchthese clients have consented to the substitution of
counsel or termination of representation; and
(2) court orders have been entered authorizing substitution of
counsel for all clients who could not be served with written notice of the proposed
sale and whose representations involve pending litigation; provided, in the event
the court fails to grant a substitution of counsel in a matter involving pending
litigation, that matter shallmay not be included in the sale and the sale otherwise
shallwill be unaffected. Further, the matters not involving pending litigation of
any client who cannot be served with written notice of the proposed sale shallmay
not be included in the sale and the sale otherwise shallwill be unaffected.
(f) Existing Fee Contracts Controlling. The purchaser shallmust honor
the fee agreements that were entered into between the seller and the seller’s clients.
The fees charged clients shallmay not be increased by reason of the sale.
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COMMENT
The practice of law is a profession, not merely a business. Clients are not
commodities that can be purchased and sold at will. In accordance with the
requirements of this rule, when a lawyer or an entire firm sells the practice and
other lawyers or firms take over the representation, the selling lawyer or firm may
obtain compensation for the reasonable value of the practice as may withdrawing
partners of law firms. See rules 4-5.4 and 4-5.6.
The requirement that all of the private practice, or all of an area of practice,
be sold is satisfied if the seller in good faith makes the entire practice, or area of
practice, available for sale to the purchasers. The fact that a number of the seller’s
clients decide not to be represented by the purchasers but take their matters
elsewhere, therefore, does not result in a violation. Similarly, a violation does not
occur merely because a court declines to approve the substitution of counsel in the
cases of a number of clients who could not be served with written notice of the
proposed sale.
Sale of entire practice or entire area of practice
The rule requires that the seller’s entire practice, or an area of practice, be
sold. The prohibition against sale of less than an entire practice area protects those
clients whose matters are less lucrative and who might find it difficult to secure
other counsel if a sale could be limited to substantial fee-generating matters. The
purchasers are required to undertake all client matters in the practice, or practice
area, subject to client consent or court authorization. This requirement is satisfied,
however, even if a purchaser is unable to undertake a particular client matter
because of a conflict of interest.
Client confidences, consent, and notice
Negotiations between seller and prospective purchaser prior to disclosure of
information relating to a specific representation of an identifiable client do not
violate the confidentiality provisions of rule 4-1.6 any more than do preliminary
discussions concerning the possible association of another lawyer or mergers
between firms, with respect to which client consent ordinarily is not required. See
rule 4-1.6(c)(6). Providing the prospective purchaser access to client-
specificdetailed information relating to the representation, for example, and to the
file, however, requires client consent or court authorization. See rule 4-1.6. Rule
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4-1.17 provides that the seller must attempt to serve each client with written notice
of the contemplated sale, including the identity of the purchaser and the fact that
the decision to consent to the substitution of counsel or to make other arrangements
must be made within 30 days. If nothing is heard within that time from a client
who was served with written notice of the proposed sale, that client’s consent to
the substitution of counsel is presumed. However, with regard to clients whose
matters involve pending litigation but who could not be served with written notice
of the proposed sale, authorization of the court is required before the files and
client-specific information relating to the representation of those clients may be
disclosed by the seller to the purchaser and before counsel may be substituted.
A lawyer or law firm selling a practice cannot be required to remain in
practice just because some clients cannot be served with written notice of the
proposed sale. Because these clients cannot themselves consent to the substitution
of counsel or direct any other disposition of their representations and files, with
regard to clients whose matters involve pending litigation the rule requires an order
from the court authorizing the substitution (or withdrawal) of counsel. The court
can be expected to determine whether reasonable efforts to locate the client have
been exhausted, and whether the absent client’s legitimate interests will be served
by authorizing the substitution of counsel so that the purchaser may continue the
representation. Preservation of client confidences requires that the petition for a
court order be considered in camera. If, however, the court fails to grant
substitution of counsel in a matter involving pending litigation, that matter
shallmay not be included in the sale and the sale may be consummated without
inclusion of that matter.
The rule provides that matters not involving pending litigation of clients who
could not be served with written notice may not be included in the sale. This is
because the clients’ consent to disclosure of confidential information and to
substitution of counsel cannot be obtained and because the alternative of court
authorization ordinarily is not available in matters not involving pending litigation.
Although suchthese matters shallmay not be included in the sale, the sale may be
consummated without inclusion of those matters.
If a client objects to the proposed substitution of counsel, the rule treats the
seller as attempting to withdraw from representation of that client and, therefore,
provides that the seller must comply with the provisions of rule 4-1.16 concerning
withdrawal from representation. Additionally, the seller must comply with
applicable requirements of law or rules of procedure.
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All the elements of client autonomy, including the client’s absolute right to
discharge a lawyer and transfer the representation to another, survive the sale of
the practice or an area of practice.
Fee arrangements between client and purchaser
The sale may not be financed by increases in fees charged the clients of the
practice. Existing agreements between the seller and the client as to fees and the
scope of the work must be honored by the purchaser. This obligation of the
purchaser is a factor that can be taken into account by seller and purchaser when
negotiating the sale price of the practice.
Other applicable ethical standards
Lawyers participating in the sale of a law practice or a practice area are
subject to the ethical standards applicable to involving another lawyer in the
representation of a client for all matters pending at the time of the sale. These
include, for example, the seller’s ethical obligation to exercise competence in
identifying a purchaser qualified to assume the practice and the purchaser’s
obligation to undertake the representation competently (see rule 4-1.1); the
obligation to avoid disqualifying conflicts, and to secure the client’s informed
consent for those conflicts that can be agreed to (see rule 4-1.7 regarding conflicts
and see the terminology section of the preamble for the definition of informed
consent); and the obligation to protect information relating to the representation
(see rules 4-1.6, 4-1.8(b), and 4-1.9(b) and (c)). If the terms of the sale involve the
division between purchaser and seller of fees from matters that arise subsequent to
the sale, the fee-division provisions of rule 4-1.5 must be satisfied with respect to
suchthese fees. These provisions will not apply to the division of fees from matters
pending at the time of sale.
If approval of the substitution of the purchasing attorney for the selling
attorney is required by the rules of any tribunal in which a matter is pending, such
approval must be obtained before the matter can be included in the sale (see rule 4-
1.16).
Applicability of this rule
This rule applies, among other situations, to the sale of a law practice by
representatives of a lawyer who is deceased, disabled, or has disappeared. It is
possible that a nonlawyer, who is not subject to the Rules of Professional Conduct,
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might be involved in the sale. When the practice of a lawyer who is deceased, is
disabled, or has disappeared is being sold, the notice required by subdivision (b) of
this rule must be given by someone who is legally authorized to act on the selling
lawyer’s behalf, such asfor example, a personal representative or a guardian. This
is because the sale of a practice and transfer of representation involve legal rights
of the affected clients.
Bona fide admission to, withdrawal from, or retirement from a law
partnership or professional association, retirement plans and similar arrangements,
and a sale of tangible assets of a law practice, do not constitute a sale or purchase
governed by this rule.
RULE 4-5.3 RESPONSIBILITIES REGARDING NONLAWYER
ASSISTANTS
(a) [No Change]
(b) Supervisory Responsibility. With respect to a nonlawyer employed or
retained by or associated with a lawyer or an authorized business entity as defined
elsewhere in these Rules Regulating The Florida Bar:
(1) a partner, and a lawyer who individually or together with other
lawyers possesses comparable managerial authority in a law firm, shallmust make
reasonable efforts to ensure that the firm has in effect measures giving reasonable
assurance that the person’s conduct is compatible with the professional obligations
of the lawyer;
(2) a lawyer having direct supervisory authority over the nonlawyer
shallmust make reasonable efforts to ensure that the person’s conduct is compatible
with the professional obligations of the lawyer; and
(3) a lawyer shall beis responsible for conduct of such a person that
would be a violation of the Rules of Professional Conduct if engaged in by a
lawyer if the lawyer:
(A) the lawyer orders or, with the knowledge of the specific
conduct, ratifies the conduct involved; or
- 43 -
(B) the lawyer is a partner or has comparable managerial
authority in the law firm in which the person is employed, or has direct supervisory
authority over the person, and knows of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable remedial
action.
(c) Ultimate Responsibility of Lawyer. Although paralegals or legal
assistants may perform the duties delegated to them by the lawyer without the
presence or active involvement of the lawyer, the lawyer shallmust review and be
responsible for the work product of the paralegals or legal assistants.
COMMENT
Lawyers generally employ assistants in their practice, including secretaries,
investigators, law student interns, and paraprofessionals such as paralegals and
legal assistants. Such assistants, whether employees or independent contractors,
act for the lawyer in rendition of the lawyer’s professional services. A lawyer must
give such assistants appropriate instruction and supervision concerning the ethical
aspects of their employment, particularly regarding the obligation not to disclose
information relating to representation of the client. The measures employed in
supervising nonlawyers should take account of the level of their legal training and
the fact that they are not subject to professional discipline. If an activity requires
the independent judgment and participation of the lawyer, it cannot be properly
delegated to a nonlawyer employee.
Subdivision (b)(1) requires lawyers with managerial authority within a law
firm to make reasonable efforts to establish internal policies and procedures
designed to provideensure that the firm has in effect measures giving reasonable
assurance that nonlawyers in the firm and nonlawyers outside the firm who work
on firm matters will act in a way compatible with the Rules of Professional
Conductprofessional obligations of the lawyer. See comment to rule 1.1 (retaining
lawyers outside the firm) and comment to rule 4-5.1 (responsibilities with respect
to lawyers within a firm). Subdivision (b)(2) applies to lawyers who have
supervisory authority over the work of a nonlawyernonlawyers within or outside
the firm. Subdivision (b)(3) specifies the circumstances in which a lawyer is
responsible for conduct of a nonlawyernonlawyers within or outside the firm that
would be a violation of the Rules of Professional Conduct if engaged in by a
lawyer.
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Nothing provided in this rule should be interpreted to mean that a nonlawyer
may have any ownership or partnership interest in a law firm, which is prohibited
by rule 4-5.4. Additionally, this rule woulddoes not permit a lawyer to accept
employment by a nonlawyer or group of nonlawyers, the purpose of which is to
provide the supervision required under this rule. SuchThis conduct is prohibited
by rules 4-5.4 and 4-5.5.
Nonlawyers Outside the Firm
A lawyer may use nonlawyers outside the firm to assist the lawyer in
rendering legal services to the client. Examples include the retention of an
investigative or paraprofessional service, hiring a document management company
to create and maintain a database for complex litigation, sending client documents
to a third party for printing or scanning, and using an Internet-based service to
store client information. When using these services outside the firm, a lawyer must
make reasonable efforts to ensure that the services are provided in a manner that is
compatible with the lawyer’s professional obligations. The extent of this
obligation will depend on the circumstances, including the education, experience
and reputation of the nonlawyer; the nature of the services involved; the terms of
any arrangements concerning the protection of client information; and the legal and
ethical environments of the jurisdictions in which the services will be performed,
particularly with regard to confidentiality. See also rules 4-1.1 (competence), 4-1.2
(allocation of authority), 4-1.4 (communication with client), 4-1.6 (confidentiality),
4-5.4 (professional independence of the lawyer), and 4-5.5 (unauthorized practice
of law). When retaining or directing a nonlawyer outside the firm, a lawyer should
communicate directions appropriate under the circumstances to give reasonable
assurance that the nonlawyer’s conduct is compatible with the professional
obligations of the lawyer.
Where the client directs the selection of a particular nonlawyer service
provider outside the firm, the lawyer ordinarily should agree with the client
concerning the allocation of responsibility for monitoring as between the client and
the lawyer. See Rule 1.2. When making this allocation in a matter pending before
a tribunal, lawyers and parties may have additional obligations that are a matter of
law beyond the scope of these rules.
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RULE 5-1.1 TRUST ACCOUNTS
(a) Nature of Money or Property Entrusted to Attorney.
(1) Trust Account Required; Location of Trust Account; Commingling
Prohibited. A lawyer shallmust hold in trust, separate from the lawyer’s own
property, funds and property of clients or third persons that are in a lawyer’s
possession in connection with a representation. All funds, including advances
for fees, costs, and expenses, shallmust be kept in a separate bank or savings
and loan association account maintained in the state where the lawyer’s office
is situated or elsewhere with the consent of the client or third person and
clearly labeled and designated as a trust account except:
(A) A lawyer may maintain funds belonging to the lawyer in the
lawyer’s trust account in an amount no more than is reasonably sufficient
to pay bank charges relating to the trust account; and
(B) A lawyer may deposit the lawyer’s own funds into trust to
replenish a shortage in the lawyer’s trust account. Any deposits by the
lawyer to cover trust account shortages must be no more than the amount
of the trust account shortage, but may be less than the amount of the
shortage. The lawyer must notify the bar’s lawyer regulation department
immediately of the shortage in the lawyer’s trust account, the cause of the
shortage, and the amount of the replenishment of the trust account by the
lawyer.
(2) Compliance Withwith Client Directives. Trust funds may be separately
held and maintained other than in a bank or savings and loan association
account if the lawyer receives written permission from the client to do so and
provided that written permission is received before maintaining the funds other
than in a separate account.
(3) Safe Deposit Boxes. If a member of the barlawyer uses a safe deposit
box to store trust funds or property, the memberlawyer shallmust advise the
institution in which the deposit box is located that it may include property of
clients or third persons.
(b) Application of Trust Funds or Property to Specific Purpose. [no
change]
(c) Liens Permitted. [no change]
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(d) Controversies as to Amount of Fees. [no change]
(e) Notice of Receipt of Trust Funds; Delivery; Accounting. [no change]
(f) Disputed Ownership of Trust Funds. [no change]
(g) Interest on Trust Accounts (IOTA) Program.
(1) Definitions. As used hereinin this rule, the term:
(A) [no change]
(B) [no change]
(C) [no change]
(D) "Eligible Institution" means any bank or savings and loan
association authorized by federal or state laws to do business in Florida and
insured by the Federal Savings and Loan Insurance CorporationFederal
Deposit Insurance Corporation, or any successor insurance corporation(s)
established by federal or state laws, or any open-end investment company
registered with the Securities and Exchange Commission and authorized by
federal or state laws to do business in Florida, all of which must meet the
requirements set out in subdivision (5), below.
(E) [no change]
(h) Interest on Funds That Are Not Nominal or Short-Term. [no change]
(i) Unidentifiable Trust Fund Accumulations and Trust Funds Held for
Missing Owners. [no change]
(j) Disbursement Againstagainst Uncollected Funds. [no change]
(k) Overdraft Protection Prohibited. [no change]
COMMENT
[no change]
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RULE 5-1.2 TRUST ACCOUNTING RECORDS AND PROCEDURES
(a) (c) [No Change]
(d) Minimum Trust Accounting Procedures. The minimum trust
accounting procedures that must be followed by all members of The Florida Bar
(when a choice of laws analysis indicates that the laws of Florida apply) who
receive or disburse trust money or property are as follows:
(1) The lawyer is required to make monthly:
(A) [No Change]
(B) a comparison between the total of the reconciled balances
of all trust accounts and the total of the trust ledger cards or pages, together with
specific descriptions of any differences between the 2 totals and reasons for these
differences.
(2) – (5) [No Change]
(e) [No Change]
(f) Record Retention. A lawyer or law firm that receives and disburses
client or third-party funds or property must maintain the records required by this
chapter for 6 years subsequent to the final conclusion of each representation in
which the trust funds or property were received.
(1) On dissolution of a law firm or of any legal professional
corporation, the partners shall make reasonable arrangements for the maintenance
and retention of client trust account records specified in this rule.
(2) On the sale of a law practice, the seller must make reasonable
arrangements for the maintenance and retention of trust account records specified
in this rule consistent with other requirements regarding the sale of a law firm set
forth in Chapter 4 of these rules.
(g) Audits. Any of the following are cause for The Florida Bar to order an
audit of a trust account:
(1) – (7) [No Change]
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(8) upon court order; or
(9) upon entry of an order of disbarment, on consent or otherwise.
(h) – (i) [No Change]
RULE 6-12.3 REQUIREMENT
(a) Course Components. Compliance with BSCR shall includes:
(1) in-person attendance at a 1-daycompletion of a Practicing with
Professionalism program sponsored by the YLD; and
(2) [No Change]
(b) Time for Completion. BSCR shallmust be completed as follows:
(1) the Practicing with Professionalism program shallmust be
completed no sooner than 12 months prior to or no later than 12 months following
admission to The Florida Bar; and
(2) the 3 elective, basic, substantive continuing legal education
programs shallmust be completed during the member’s initial 3-year continuing
legal education requirement reporting cycle assigned upon admission to The
Florida Bar.
RULE 10-7.2 PROCEEDINGS FOR INDIRECT CRIMINAL
CONTEMPT
(a) Petitions for Indirect Criminal Contempt. Nothing within these
rules prohibits or limits the right of the court to issue a permanent injunction in lieu
of or in addition to any punishment imposed for an indirect criminal contempt.
(1) [No Change]
(2) The respondent, personally or by counsel, may move to dismiss
the order to show cause, move for a statement of particulars, or answer suchthe
- 49 -
order by way of explanation or defense. All motions and the answer must be in
writing. A respondent’s omission to file motions or answer will not be deemed an
admission of guilt of the contempt charged.
(b) Indigency of Respondent. Any respondent who is determined to be
indigent by the referee is entitled to the appointment of counsel.
(1) [No Change]
(2) Determination. After reviewing the affidavit and questioning
the respondent, the referee must make one of the following determinations:will
determine whether the respondent is indigent or the respondent is not indigent.
In making this determination, the referee must consider the applicable
statutory criteria used by the clerk of court when determining indigent status and
the applicable statutory factors considered by a court when reviewing that
determination.
(c) Proceedings Before the Referee. Proceedings before the referee must
be in accordance with the following:
(1) – (2) [No Change]
(3) The respondent will be arraigned and enter a plea at the time of
the hearing before the referee, or prior upon request. A subsequent hearing to
determine the guilt or innocence of the respondent will follow a plea of not guilty.
The date and time of the subsequent hearing will be set at the arraignment. The
respondent is entitled to be represented by counsel, have compulsory process for
the attendance of witnesses, and confront witnesses against the respondent. The
respondent may testify in the respondent’s own defense. No respondent may be
compelled to testify. A presumption of innocence will be accorded the respondent.
The Florida Bar, which will actacting as prosecuting authority, must prove guilt of
the respondent beyond a reasonable doubt.
(4) Subpoenas for the attendance of witnesses and the production
of documentary evidence will be issued in the name of the court by the referee
upon request of a party. Failure or refusal to comply with any subpoena is a
contempt of court and may be punished by the court or by any circuit court where
the action is pending or where the contemnor may be found, as if saidthe refusal
were a contempt of that court.
- 50 -
(5) [No Change]
(6) At the conclusion of the hearing, the referee will sign and enter
of record a judgment of guilty or not guilty. There should be included in a
judgment of guilty a recital of the facts constituting the contempt of which the
respondent has been found and adjudicated guilty, and the costs of prosecution,
including investigative costs and restitution, if any, will be included and entered in
the judgment rendered against the respondent. The amount of restitution must be
specifically set forth in the judgment and must not exceed the amount paid to
respondent by complainant(s). The judgment must also state the name of the
complainant(s) to whom restitution is to be made, the amount of restitution to be
made, and the date by which it shallmust be completed. The referee has discretion
over the timing of payments, over how those payments are to be distributed to
multiple complainant(s), and whether restitution will bear interest at the legal rate
provided for judgments in this state. In determining the amount of restitution to be
paid to complainant(s), the referee will consider any documentary evidence that
shows the amount paid to respondent by complainant(s), including cancelled
checks, credit card receipts, receipts from respondent, and any other documentation
evidencing the amount of payment. Nothing in this section precludes an individual
from seeking redress through civil proceedings to recover fees or other damages.
(7) Prior to the pronouncement of a recommended sentence upon a
judgment of guilty, the referee will inform the respondent of the accusation and
judgment and afford the opportunity to present evidence of mitigating
circumstances. The recommended sentence will be pronounced in open court and
in the presence of the respondent.
(d) Record.
(1) Contents. The record must includes all items properly filed in
the cause including pleadings, recorded testimony, if transcribed, exhibits in
evidence, and the report of the referee.
(2) [No Change]
(3) Supplementing or Removing Items from the Record. The
respondent and The Florida Bar may seek to supplement the record or have items
removed from the record by filing a motion with the referee for suchthat purpose,
provided suchthe motion is filed within 15 days of the service of the index. Denial
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of a motion to supplement the record or to remove an item from the record may be
reviewed in the same manner as provided for in the rule on appellate review under
these rules.
(e) Review by the Supreme Court of Florida. The judgment and
recommended sentence, upon a finding of “guilty,” together with the entire record
of proceedings must be forwarded to the Supreme Court of Florida for approval,
modification, or rejection based upon the law. The petitioner or the respondent
may file objections, together with a supporting brief or memorandum of law, to the
referee’s judgment and recommended sentence within 30 days of the date of filing
with the court of the referee’s judgment, recommended sentence, and record of
proceedings, or in the case where a party seeks review of a referee’s denial to
supplement or remove an item from the record, within 30 days after the court
issues its ruling on that matter. Denial of a motion to supplement the record or to
remove an item from the record may be reviewed in the same manner as provided
for in the rule on appellate review under these rules.
The Florida Bar may file a responsive brief or memorandum of law within
20 days after service of respondent’s brief or memorandum of law. The
respondent may file a reply brief or memorandum of law within 20 days after
service of The Florida Bar’s responsive brief or memorandum of law.A responsive
brief or memorandum of law may be filed within 20 days after service of the initial
brief or memorandum of law. A reply brief or memorandum of law may be filed
within 20 days after service of the responsive brief or memorandum of law.
(f) – (g) [No Change]
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