Opinion

In Re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition) – Corrected Opinion

Court: Supreme Court of Florida
Filed: Jan 25, 2018
Status: Published
Cited by: 0 cases
Authority: More cited than 4.2%

The opinion

Supreme Court of Florida

____________

No. SC16-1961

____________

IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA

BAR (BIENNIAL PETITION).

[November 9, 2017]

CORRECTED OPINION

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). We have

jurisdiction. See art. V, § 15, Fla. Const.

The Florida Bar (Bar) has filed its biennial petition proposing both new rules

and amendments to a number of existing Bar Rules. The proposals were approved

by the Board of Governors of The Florida Bar, 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

received two comments; the Bar filed a response to the comments.

After fully considering the Bar’s petition, the comments, and the response,

we adopt the majority of the Bar’s proposals, with some modifications,1 as

discussed in this opinion. However, as addressed below, we decline to adopt the

Bar’s proposed amendments to Bar Rule 4-7.14 (Potentially Misleading

Advertisements) at this time, and we refer this matter back to the Bar for further

consideration. We discuss the new rules and more significant rule amendments

below.

AMENDMENTS

First, Bar Rule 1-3.2 (Membership classifications) is amended in subdivision

(a) (Members in Good Standing), as proposed by the Bar, to allow members of the

Bar who have voluntarily selected inactive status to be classified as “members in

good standing.” New subdivision (a)(2) provides that members of the Bar who

have elected inactive status, paid their annual memberships fees, and who are not

retired, resigned, delinquent, suspended, or inactive because of incapacity, are

considered members in “good standing” for purposes of obtaining a certificate of

good standing and for no other purpose.

We amend Bar Rule 1-7.5 (Retired, Inactive, Delinquent Members), as

recommended by the Bar, to authorize retired or inactive Bar members to practice

1. We have revised the Bar’s proposals in several Bar Rules to make

technical or editorial changes.

-2-

law as an “emeritus lawyer” pursuant to the Emeritus Attorneys Pro Bono

Participation Program in Chapter 12 of the Bar Rules. This amendment, and other

amendments to the Bar Rules addressed herein, were recommended by the Florida

Commission on Access to Civil Justice, and are intended to increase the pool of

lawyers authorized to provide pro bono legal services to the community under the

supervision of a legal aid organization.

Next, we amend Bar Rule 1-12.1 (Amendment to Rules; Authority; Notice;

Procedures; Comments), as proposed by the Bar—subdivision (g) (Notice of Intent

to File Petition) will now require that the Bar’s notice of its intent to file a petition

to amend the Bar Rules, published in The Florida Bar News and on its website,

identify the rules to be amended and state in general terms the nature of the

proposed amendments; the full text of the Bar’s proposals will be published only

on the Bar’s website. Also in Bar Rule 1-12.1, we amend subdivision (h) (Action

by the Supreme Court of Florida) to provide that a summary of the Court’s final

action on a petition to amend the Bar Rules will be reported in The Florida Bar

News and on the Bar’s website.

Bar Rule 3-7.16 (Limitation on Time to Bring Complaint) is renamed

“Limitation on Time to Open Investigation” and is substantially amended to clarify

the limitations period for opening an investigation into allegations of lawyer

misconduct. Subdivision (a) is renamed “Time for Initiating Investigation of

-3-

Complaints and Re-opened Cases,” and will now include three new subdivisions.

Subdivision (a)(1) (Initial Complaint or Investigation) provides that a complainant

must make a written “inquiry”2 to the Bar within six years from the time the matter

giving rise to the inquiry or complaint is discovered or should have been

discovered. In the case of an investigation initiated by the Bar, the Bar must open

the investigation within six years from the time the matter is discovered or should

have been discovered. Subdivision (a)(2) (Re-opened Investigations) provides that

a re-opened disciplinary investigation is not time barred if the matter is re-opened

within one year after it was closed. And subdivision (a)(3) (Deferred

Investigations) states that a timely disciplinary investigation that was deferred

consistent with Bar policy and the Bar Rules is not time barred if the grievance

committee finds probable cause and the Bar files its formal complaint within one

year after notice that the civil, criminal, or other proceedings that were the basis for

the deferral have concluded. The remaining subdivisions in this rule are also

amended as proposed by the Bar.

Bar Rule 4-1.8 (Conflict of Interest; Prohibited and Other Transactions) is

amended in subdivision (c) (Gifts to Lawyer or Lawyer’s Family) to prohibit a

2. We amend Bar Rule 3-2.1 (Generally), as proposed by the Bar, to add a

new definition for the term “Inquiry,” meaning a written communication received

by Bar counsel questioning the conduct of any Bar member.

-4-

lawyer from soliciting any gift from a client, or from preparing an instrument that

gives the lawyer or a member of the lawyer’s family any gift. This change was

proposed by the Bar in response to a suggestion from the Real Property Probate

and Trust Law Section. We also amend the comment to rule 4-1.8 to explain this

prohibition, and other subdivisions throughout rule 4-1.8 to clarify language.

However, we have revised the Bar’s proposal in subdivision (h) (Limiting Liability

for Malpractice), as recommended in the comment from Attorney Timothy P.

Chinaris, to remove the reference to “prospective” malpractice.

We decline to adopt the Bar’s proposal to amend Bar Rule 4-7.14

(Potentially Misleading Advertisements). The Bar proposes amendments to this

rule in response to a decision from the United States District Court for the

Northern District of Florida, which held, in relevant part, that provisions in Bar

Rule 4-7.14(a) broadly prohibiting lawyers who were not board certified from

making truthful statements that they “specialize in” or “have expertise in” a

particular field of practice were unconstitutional. In response to this decision, the

Bar recommended amending the rule in subdivision (a) (Potentially Misleading

Advertisements) to add a new subdivision (a)(5), which would prohibit lawyers

from using in their advertisements the terms “specialist,” “expert,” or other

variations of those terms unless the lawyer meets one of the four criteria

established in subdivisions (a)(5)(A)-(a)(5)(D). The criteria in subdivisions

-5-

(a)(5)(A), (a)(5)(B), and (a)(5)(C) are similar to those in other parts of rule 4-7.14.

However, subdivision (a)(5)(D) would provide that a lawyer may identify as a

“specialist” or “expert” if the lawyer’s “experience and training demonstrate

specialized competence in an area of practice that is reasonably comparable to that

demonstrated by the standards of the Florida Certification Plan set forth in chapter

6 of these rules”; if the area of claimed specialization or expertise is or falls within

an area of practice under the Florida Certification Plan, the advertisement must

include a reasonably prominent disclaimer that the lawyer is not board certified in

that area of practice by the Bar or another certification program. We are concerned

that the Bar’s proposal here does not sufficiently address the district court’s

decision, and that the language requiring that a lawyer’s experience be “reasonably

comparable” to the Florida Certification Plan will prove to be problematic because

it could lead to differing and inconsistent applications. Because we believe that

this important issue requires further study, we decline to adopt the Bar’s proposed

amendments to rule 4-7.14, and we refer this matter to The Florida Bar for

additional consideration.

Next, we have made several amendments to Bar Rule 4-7.18 (Direct Contact

with Prospective Clients). As proposed by the Bar, subdivision (a) (Solicitation) is

amended to provide that the term “solicit” includes contact in person, by telephone,

by electronic means that include real-time communication face-to-face, or by any

-6-

other communication directed to a specific recipient that does not meet the

requirements of the rule. Additionally, we amend subdivision (b)(2) (Written

Communication) to require that permitted written communications to prospective

clients for the purpose of obtaining professional employment must be marked with

the label “advertisement” on each separate enclosure, rather than each separate

page. If the written communication is a self-mailing brochure or pamphlet, the

“advertisement” mark must be included on the address panel of the brochure or

pamphlet, on the inside of the brochure or pamphlet, and on each separate

enclosure. Subdivision (b)(3) is also amended, as proposed by the Bar, to provide

that the requirements contained in subdivision (b)(2) do not apply to

communications made at a prospective client’s request.

In Bar Rule 5-1.1 (Trust Accounts), we amend subdivisions (a)(1) (Nature of

Money or Property Entrusted to Attorney; Trust Account Required; Location of

Trust Account; Commingling Prohibited), (a)(2) (Nature of Money or Property

Entrusted to Attorney; Compliance with Client Directives), (g)(1)(D) (Interest on

Trust Accounts (IOTA) Program; Definitions; Eligible Institution), and (g)(5)

(Interest on Trust Accounts (IOTA) Program; Eligible Institution Participation in

IOTA) to permit lawyers to maintain trust accounts in federally insured credit

unions. We amend subdivision (g)(4) (Interest on Trust Accounts (IOTA)

Program; Notice to Foundation) to direct lawyers to the Bar’s website for The

-7-

Florida Bar Foundation’s current address. We also amend other subdivisions in

Bar Rule 5-1.1, as proposed by the Bar. However, we have revised the Bar’s

proposal in paragraphs seven and eight of the comment to the rule, as

recommended in the comment from Mr. Chinaris, to delete the parentheticals

included with the citations to case law.

We next adopt a new Bar Rule 6-3.7 (Inactive Status), to allow board

certified members of the Bar to apply for a temporary inactive status in certain

circumstances. Subdivision (a) (Purpose) of the new rule provides that the inactive

status is available to eligible members who apply and are qualified for such status

under the provisions of the rule. Subdivision (b) (Applicability) outlines six

categories of eligible members. These include board certified members appointed

or elected to serve as a judicial officer; we have revised the Bar’s proposal in

subdivision (b)(1) to include administrative law judges in the list of “judicial

officers.” Other categories of members eligible for inactive status include: law

professors teaching in an accredited law school or graduate law course who agree

not to practice if granted inactive status; professional neutrals, including mediators,

arbitrators, or voluntary trial resolution judges, who agree not to practice law if

granted inactive status; active duty military personnel; members who are unable to

practice law due to a “unique substantial and material hardship, medical or

otherwise”; and, during the two years immediately following the effective date of

-8-

the rule, members who voluntarily relinquished their board certification before the

effective date of the rule, but who would otherwise be eligible for inactive status

may be granted such status. Subdivision (c) (Qualifications) outlines the

qualifications for maintaining board certified inactive status. Any Bar member

granted board certified inactive status must maintain an active membership in The

Florida Bar, obtain the continuing legal education credit that would be required for

recertification in their practice area, and comply with the applicable rules and

policies for board certification. Subdivision (d) (Revocation or Relinquishment of

Board Certified Inactive Status) provides that the Board of Legal Specialization

and Education (BLSE) may revoke a member’s board certified inactive status if the

member fails to comply with the policies. On revocation, the member cannot use

the phrase “board certified inactive”; the member also cannot use the phrase

“board certified” unless he or she is reactivated to board certification.

Alternatively, a board certified inactive member is required to notify the BLSE

within ninety days if he or she no longer qualifies for board certified inactive

status, or no longer wishes to retain that status. The member must immediately

cease using the phrase “board certified inactive,” and either apply to reactivate

their board certification or relinquish the certification. Finally, subdivision (e)

(Reactivation to Board Certified Status and Recertification) outlines the procedures

for seeking reactivation of board certification status.

-9-

We also adopt a new Subchapter 6-31 (Standards for Board Certification in

International Litigation and Arbitration), outlining standards for board certification

in the field of International Litigation and Arbitration. This subchapter includes

four new Bar Rules. Bar Rule 6-31.1 (Generally) provides that a member in good

standing with The Florida Bar, who is eligible to practice law in Florida and meets

the standards prescribed in Subchapter 6-31, may be issued a certificate identifying

the lawyer as board certified in International Litigation and Arbitration. Bar Rule

6-31.2 (Definitions) provides definitions for the terms “International Litigation and

Arbitration,” “Practice of Law,” and “International Litigation and Arbitration

Certification Committee.” Bar Rule 6-31.3 (Minimum Standards) outlines the

minimum standards of practice, experience, and education required to earn a

certification in International Litigation and Arbitration. And Bar Rule 6-31.4

(International Litigation and Arbitration Recertification) describes the

requirements for seeking recertification in International Litigation and Arbitration

at the conclusion of a five-year cycle.

We amend Bar Rule 10-2.1 (Generally), as proposed by the Bar, first in

subdivision (b) (Paralegal or Legal Assistant) to add language authorizing a

paralegal to work under the supervision of an out-of-state lawyer or foreign lawyer

engaged in the authorized practice of law in Florida. We also amend subdivision

- 10 -

(e) (Bar Counsel) to include in the definition of “Bar Counsel” Unlicensed Practice

of Law (UPL) counsel and UPL staff counsel.

Bar Rule 10-9.1 (Procedures for Issuance of Advisory Opinions on the

Unlicensed Practice of Law) is amended, as proposed by the Bar, to address

procedures for requesting and issuing proposed advisory opinions on the

unlicensed practice of law. Subdivision (b) (Requests for Advisory Opinions) is

reworded to provide that a petitioner may request a formal advisory opinion

concerning activity that may constitute the unlicensed practice of law by

submitting a question to the Bar’s UPL Department. We also amend subdivision

(b) to make clear that the request must be in writing, include all of the operative

facts, and ask whether the activity constitutes the unlicensed practice of law. We

amend subdivision (c), renamed “Limitations on Advisory Opinions,” to include

that no advisory opinion may be rendered as to any matter that is currently the

subject of an unlicensed practice of law investigation or grievance investigation by

the Bar. And we amend subdivision (g) (Service and Judicial Review of Proposed

Advisory Opinions), pertaining to proceedings in this Court to review proposed

advisory opinions issued by the Standing Committee on UPL. The petitioner or

any other interested party may file either a brief or a memorandum in response to

the proposed advisory opinion. The Standing Committee’s response, and any

reply, may also be in the form of either a brief or a memorandum.

- 11 -

We amend several rules within Chapter 12 of the Bar Rules,3 as proposed by

the Bar, which, together with the amendments to Bar Rule 1-7.5 discussed herein,

expand the existing eligibility requirements and allow more lawyers to serve as

emeritus lawyers, providing pro bono legal services to the community under the

supervision of an approved legal aid organization. The Bar proposed these

changes based on recommendations from the Florida Commission on Access to

Civil Justice. As amended, this Chapter will now permit inactive or retired Bar

members, inactive or retired lawyers who practiced in any other state or territory of

the United States or the District of Columbia, former judges, current or former law

professors, and authorized house counsel to serve as emeritus lawyers and perform

this important service.

We also amend a number of rules within Chapter 16 of the Bar Rules

(Foreign Legal Consultancy Rule), and add a new Bar Rule 16-1.7 (Annual Sworn

Statement). Among other changes in this Chapter, Bar Rule 16-1.2, renamed

“General Certification Regulations,” is amended to change some of the

requirements for certification as a foreign legal consultant, such that a foreign

lawyer applying for certification must demonstrate that he or she has engaged in

the practice of law in a foreign country for not less than three of the five years

3. We also revise the title of Chapter 12 to “Emeritus Lawyers Pro Bono

Participation Program.”

- 12 -

immediately preceding the application; he or she must not have been disciplined

for professional misconduct by the bar or courts of any jurisdiction within the last

seven years; and he or she must not have been denied admission to practice before

the courts in any jurisdiction based upon the applicant’s character and fitness

during the ten-year period immediately preceding the application. We have

deleted existing language in the rule requiring applicants to be over twenty-six

years of age.

Additionally, in Bar Rule 16-1.3 (Activities), we amend subdivision (a)

(Rendering Legal Advice), as recommended by the Bar; however, we decline to

adopt the proposed amendments in subdivision (b) (Representing Status as

Member of The Florida Bar), which would serve to delete the requirement that

foreign legal consultants provide clients a letter disclosing the extent of their

professional liability insurance coverage, as well as the fact that the client will not

have access to the Clients’ Security Fund in any discipline case against the foreign

lawyer. We believe these disclosures serve an important role in protecting clients.

Finally, we amend several rules in Chapter 17 of the Bar Rules (Authorized

House Counsel Rule), as proposed by the Bar, to allow both lawyers licensed to

practice law in any United States jurisdiction other than Florida, and those

authorized to practice as a lawyer or counselor in a foreign jurisdiction, to serve as

authorized house counsel. Within Chapter 17, we delete existing Bar Rule 17-1.7

- 13 -

(Immunity from Prosecution) in its entirety, because this rule is no longer

necessary. However, because the rule amendments we adopt in this case will now

permit foreign lawyers to serve as authorized house counsel, such foreign lawyers

who are duly registered as authorized house counsel under Chapter 17 of the Bar

Rules will not be subject to prosecution for the unlicensed practice of law for

acting as counsel to a business organization prior to the effective date of these rule

amendments.

CONCLUSION

Accordingly, the Court amends 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 part of the rules.

The amendments shall become effective on February 1, 2018, at 12:01 a.m.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,

and LAWSON, 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, Michael J. Higer, President, Michelle R.

Suskauer, President-Elect, William J. Schifino, Jr., Past President, Lori S.

Holcomb, Director, Division of Ethics and Consumer Protection, and Elizabeth

Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida,

- 14 -

for Petitioner

Thomas O. Wells of Wells & Wells, P.A., Coral Gables, Florida; and Timothy P.

Chinaris, Nashville, Tennessee,

Responding with Comments

- 15 -

APPENDIX

RULE 1-3.2 MEMBERSHIP CLASSIFICATIONS

(a) Members in Good Standing.

(1) Members of The Florida Bar in good standing shall means only

those persons licensed to practice law in Florida who have paid annual

membership fees or dues for the current year and who are not retired, resigned,

delinquent, on the inactive list for incapacity, or suspended members.

(2) Members of The Florida Bar who have elected inactive status,

who have paid annual membership fees for the current year, and who are not

retired, resigned, delinquent, suspended, or on the inactive list for incapacity, are

considered to be in good standing only for purposes of obtaining a certificate of

good standing and for no other purpose. A certificate of good standing issued to an

inactive member will reflect the member’s inactive status.

(b) Conditionally Admitted Members. The Supreme Court of Florida

may admit a person with a prior history of drug, alcohol, or psychological

problems to membership in The Florida Bar and impose conditions of probation as

the court deems appropriate upon that member. The period of probation shallwill

be no longer than 5 years, or for suchan indefinite period of time as the court may

deems appropriate by conditions in its order. The conditions may include, but not

be limited to, participation in a rehabilitation program, periodic blood and urine

analysis, periodic psychological examinations, or supervision by another member

of The Florida Bar. The probation shallwill be monitored by The Florida Bar and

the costs thereof shall be paid by the member on probation. A failure to observe

the conditions of probation or a finding of probable cause as to conduct of the

member committed during the period of probation may terminate the probation and

subject the member to all available disciplinary sanctions. Proceedings to

determine compliance with conditions of admission shallwill be processed in the

same manner as matters of contempt provided elsewhere in these Rules Regulating

The Florida Bar. If necessary, the court may assign a judicial referee to take

testimony, receive evidence, and make findings of fact in the manner prescribed in

the rule concerning procedures before a referee. The findings of the referee may

be appealed as provided in the rule for procedures before the supreme court.

only those members who have properly elected to be classified as inactive in the

manner elsewhere provided.

- 16 -

Inactive members shallwill:

(1) – (3) [No Change]

(4) not hold themselves out as being able to practice law in Florida

or render advice on matters of Florida law unless certified as an emeritus lawyer

under chapter 12 of these rules;

(5) not hold any position that requires the person to be a licensed

Florida attorneylawyer;

(6) – (7) [No Change]

(8) certify upon election of inactive status that they will comply

with all applicable restrictions and limitations imposed on inactive members of The

Florida Bar, unless certified as an emeritus lawyer under chapter 12 of these rules.

Failure of an inactive member to comply with all these requirements thereof

shall beis cause for disciplinary action.

An inactive member may, at any time, apply for reinstatement to active

membership in good standing to become eligible to practice law in Florida in the

manner provided in rule 1-3.7.

RULE 1-7.5 RETIRED, INACTIVE, DELINQUENT MEMBERS

A member who is retired, inactive, or delinquent shall not practiceis

prohibited from practicing law in this state until reinstated as provided in these

rules, except retired or inactive members who are certified as emeritus lawyers

under chapter 12 of these rules.

RULE 1-12.1 AMENDMENT TO RULES; AUTHORITY; NOTICE;

PROCEDURES; COMMENTS

(a) Authority to Amend. The bBoard of gGovernors of The Florida Bar

shall havehas the authority to amend chapters 7 and 9, as well as the standards for

the individual areas of certification within chapter 6 of these Rules Regulating The

Florida Bar, consistent with the notice, publication, and comments requirements

- 17 -

provided below. Only the Supreme Court of Florida shall havehas the authority to

amend all other chapters of these Rules Regulating The Florida Bar.

(b) [No Change]

shallwill review proposed amendments by referral of the proposal to an appropriate

board committee thereof for substantive review. After substantive review, an

appropriate committee of the board shallwill review the proposal for consistency

with these rules and the policies of The Florida Bar. After completion of review, a

recommendation concerning the proposal shallwill be made to the board.

(d) Notice of Proposed Board Action. Notice of the proposed action of

the board on a proposed amendment shallwill be given in an edition of The Florida

Bar NewsNews and on The Florida Bar website that is published prior to the

meeting of the board at which the board action is taken. The notice shallwill

identify the rule(s) to be amended and shall state in general terms the nature of the

proposed amendments.

(e) Comments by Members. Any member may request a copy of the

proposed amendments and may file written comments concerning them. The

comments shallmust be filed with the executive director sufficiently in advance of

the board meeting to allow for copying and distribution to the members of the

board.

(f) Approval of Amendments. Amendments to other than chapters 7

and 9, as well as the standards for the individual areas of certification within

chapter 6 of these Rules Regulating The Florida Bar shallmust be by petition to the

Supreme Court of Florida. Petitions to amend these Rules Regulating The Florida

Bar may be filed by the board of governors or by 50 members in good standing,

provided that any amendments proposed by members of the bar shallmust be filed

90 days after filing them with The Florida Bar.

(g) Notice of Intent to File Petition. Notice of intent to file a petition to

amend these Rules Regulating The Florida Bar shallwill be published in The

Florida Bar NewsNews and on The Florida Bar website at least 30 days before the

filing of the petition. The notice shall set forth the text of the proposed

amendmentswill identify the rule(s) to be amended, state in general terms the

nature of the proposed amendments, state the date the petition will be filed, and

state that any comments or objections must be filed within 30 days of filing the

petition. The full text of the proposed amendment(s) will be published on The

- 18 -

Florida Bar website. A copy of all comments or objections shallmust be served on

the executive director of The Florida Bar and any persons who may have made an

appearance in the matter.

(h) Action by the Supreme Court of Florida. The court shallwill review

all proposed amendments filed under this rule and suchany amendments shallwill

not become effective until an order is issued approving them. FinalA summary of

final action of the court shallwill be reported in The Florida Bar NewsNews and on

The Florida Bar website.

(i) [No Change]

RULE 3-2.1 GENERALLY

Wherever used in these rules the following words or terms shall have the

meaning herein set forth below unless their use thereof shall clearly indicates a

different meaning:

(a) Bar Counsel. ABar counsel is a member of The Florida Bar

representing The Florida Bar in any proceeding under these rules.

(b) The Board or the Board of Governors. The board or the board of

governors is the board of governors of The Florida Bar.

complaining witness is any person who has complained of the conduct of any

member of The Florida Bar to any officer or agency of The Florida Bar.

(d) This Court or the Court. TheThis court or the court is the Supreme

Court of Florida.

(e) Court of this State. ACourt of this state is a state court authorized and

established by the constitution or laws of the state of Florida.

(f) Diversion to Practice and Professionalism Enhancement Programs.

TheDiversion to practice and professionalism enhancement programs is removal of

a disciplinary matter from the disciplinary system and placement of the matter in a

skills enhancement program in lieu of a disciplinary sanction.

(g) Executive Committee. TheExecutive committee is the executive

committee of the board of governors of The Florida Bar.

- 19 -

(h) Executive Director. TheExecutive director is the executive director of

The Florida Bar.

(i) Inquiry. Inquiry is a written communication received by bar counsel

questioning the conduct of a member of The Florida Bar.

(ij) Practice and Professionalism Enhancement Programs.

ProgramsPractice and professionalism enhancement programs are programs

operated either as a diversion from disciplinary action or as a part of a disciplinary

sanction that are intended to provide educational opportunities to members of the

bar for enhancing skills and avoiding misconduct allegations.

(jk) Probable Cause. AProbable cause is a finding by an authorized

agency that there is cause to believe that a member of The Florida Bar is guilty of

misconduct justifying disciplinary action.

(kl) Referral to Practice and Professionalism Enhancement Programs.

PlacementReferral to practice and professionalism enhancement programs is

placement of a lawyer in skills enhancement programs as a disciplinary sanction.

(lm) Referee. AReferee is a judge or retired judge appointed to conduct

proceedings as provided under these rules.

(mn) Respondent. ARespondent is a member of The Florida Bar or an

attorneylawyer subject to these rules who is accused of misconduct or whose

conduct is under investigation.

(no) Staff Counsel. AStaff counsel is a lawyer employee of The Florida

Bar designated by the executive director and authorized by these Rules Regulating

The Florida Bar to approve formal complaints, conditional guilty pleas for consent

judgments, and diversion recommendations and to make appointment of bar

counsel.

(op) Chief Branch Discipline Counsel. Chief branch discipline counsel is

the counsel in charge of a branch office of The Florida Bar. Any counsel

employed by The Florida Bar may serve as chief branch discipline counsel at the

direction of the regularly assigned chief branch discipline counsel or staff counsel.

(pq) Designated Reviewer. The designated reviewer is a member of the

board of governors responsible for review and other specific duties as assigned

with respect to a particular grievance committee or matter. The designated

- 20 -

reviewer for a special grievance committee will be selected by the president and

approved by the board.

(qr) Final Adjudication. AFinal adjudication is a decision by the

authorized disciplinary authority or court issuing a sanction for professional

misconduct that is not subject to judicial review except on direct appeal to the

Supreme Court of the United States.

RULE 3-7.5 PROCEDURES BEFORE THE BOARD OF

GOVERNORS

(a) Review by the Designated Reviewer. Notice of grievance committee

action recommending either diversion to a practice and professionalism

enhancement program or finding no probable cause, no probable cause with a letter

of advice, minor misconduct, or probable cause shallwill be given to the designated

reviewer for review. The designated reviewer may request grievance committee

reconsideration or refer the matter to the disciplinary review committee of the

board of governors within 30 days of notice of grievance committee action. The

request for a grievance committee reconsideration or referral to the disciplinary

review committee shallmust be in writing and shallmust be submitted to bar

counsel. For purposes of this subdivision letters, memoranda, handwritten notes,

facsimile documents, and e-mail shall constitute communication “in writing.”

(1) Requests for Grievance Committee Reconsideration. If the

designated reviewer requests grievance committee reconsideration, bar counsel

shall forwards the request to the chair of the grievance committee and shall gives

notice to the respondent and complainant that the request has been made. If the

grievance committee agrees to reconsider the matter, the rule prescribing

procedures before a grievance committee shall applyapplies.

(2) Referrals to Disciplinary Review Committee and Board of

Governors. If the designated reviewer refers the matter to the disciplinary review

committee, bar counsel shall prepares and submits a discipline agenda item for

consideration by the committee. Bar counsel shallmust give notice to respondent

and complainant that the designated reviewer has made the referral for review.

(3) Nature of Disciplinary Review Committee and Board of

Governors Review. The Florida Bar is a party in disciplinary proceedings and has

no authority to adjudicate rights in those proceedings. Any such review on referral

- 21 -

from a designated reviewer is in the nature of consultation on pending litigation

and therefore is not subject to intervention by persons outside the relationship

between the bar and its counsel.

(4) Effect of Failure to Timely Make the Request for

Reconsideration or Referral for Review. If the designated reviewer fails to make

the request for reconsideration or referral within the time prescribed, the grievance

committee action shall becomes final.

(5) [No Change]

(b) Review of Grievance Committee Matters. The disciplinary review

committee shall reviews those grievance committee matters referred to it by a

designated reviewer and shall make a reports to the board. The disciplinary review

committee may confirm, reject, or amend the recommendation of the designated

reviewer in whole or in part. The report of the disciplinary review committee shall

beis final unless overruled by the board. Recommendations of the disciplinary

review committee may include:

(1) – (7) [No Change]

(d) Notice of Board Action. Bar counsel shallmust give notice of board

action to the respondent, complainant, and grievance committee.

(e) Finding of No Probable Cause. A finding of no probable cause by the

board shall beis final and no further proceedings shall be hadmay be conducted in

the matter by The Florida Bar unless a reason arises at a later time to re-open the

file.

(f) Control of Proceedings. Bar counsel, however appointed, shall beis

subject to the direction of the board at all times. The board, in the exercise of its

discretion as the governing body of The Florida Bar, has the power to terminate

disciplinary proceedings before a referee prior to the receipt of evidence by the

referee, whether suchthese proceedings have been instituted upon a finding of

probable cause by the board or a grievance committee.

(g) Filing Service on Board of Governors. All matters to be filed with or

served upon the board shallmust be addressed to the board of governors and filed

with the executive director.

- 22 -

(h) Custodian of Bar Records. The executive director or his designees

shall beare the custodian of the official records of The Florida Bar.

RULE 3-7.16 LIMITATION ON TIME TO BRING COMPLAINTOPEN

INVESTIGATION

(a) Time for Inquiries, Initiating Investigation of Complaints, and Re-

opened Cases. Inquiries raised or complaints presented by or to The Florida Bar

under these rules shall be commenced

(1) Initial Complaint or Investigation. A complainant must make a

written inquiry to The Florida Bar within 6 years from the time the matter giving

rise to the inquiry or complaint is discovered or, with due diligence, should have

been discovered. The Florida Bar must open an investigation initiated by The

Florida Bar within 6 years from the time the matter giving rise to the investigation

is discovered or, with due diligence, should have been discovered. A reopened

disciplinary investigation shall not be barred by this rule if the investigation is

reopened within 1 year of the date on which the matter was closed, except that

reopened investigations based on deferrals made in accord with bar policy and as

authorized elsewhere in these Rules Regulating The Florida Bar shall not be barred

if reopened within 1 year of the conclusion of the civil, criminal, or other

proceedings on which deferral was based.

(2) Re-opened Investigations. A re-opened disciplinary

investigation is not time barred by this rule if the investigation is re-opened within

1 year after the date on which the matter was closed, except that a re-opened

investigation based on a deferral made in accordance with bar policy and as

authorized elsewhere in these Rules Regulating The Florida Bar is not barred if re-

opened within 1 year after actual notice of the conclusion of the civil, criminal, or

other proceedings on which the deferral was based.

(3) Deferred Investigations. A disciplinary investigation which

began with the opening of a discipline file and bar inquiries to a respondent within

the 6-year time period as described in this rule and was then deferred in accordance

with bar policy and the Rules Regulating The Florida Bar, is not time barred under

this rule if a grievance committee finds probable cause and the bar files its formal

complaint within 1 year after actual notice of the conclusion of the civil, criminal,

or other proceedings on which deferral was based.

- 23 -

(b) Exception for Theft or Conviction of a Felony Criminal Offense.

There shall beis no limit on the time in which to present, reopen, or bring a matter

alleging theft or conviction of a felony criminal offense by a member of The

Florida Bar.

matters covered by this rule where it can be shown that fraud, concealment, or

intentional misrepresentation of fact prevented the discovery of the matter giving

rise to the inquiry or complaint, tThe limitation of time in which to bring or reopen

an inquiry or complaint within this rule shall beis tolled. where it can be shown

that fraud, concealment, or intentional misrepresentation of fact prevented the

discovery of the matter giving rise to the inquiry or complaint.

(d) Constitutional Officers. Inquiries raised or complaints presented by

or to The Florida Bar about the conduct of a constitutional officer who is required

to be a member in good standing of The Florida Bar shallmust be commenced

within 6 years after the constitutional officer vacates office.

CHAPTER 4 RULES OF PROFESSIONAL CONDUCT

PREAMBLE: A LAWYER’S RESPONSIBILITIES

[No Change]

Scope:

[No Change]

Terminology:

“Belief’ or “believes” denotes that the person involved actually supposed the

fact in question to be true. A person’s belief may be inferred from circumstances.

“Consult” or “consultation” denotes communication of information

reasonably sufficient to permit the client to appreciate the significance of the

matter in question.

“Confirmed in writing,” when used in reference to the informed consent of a

person, denotes informed consent that is given in writing by the person or a writing

that a lawyer promptly transmits to the person confirming an oral informed

consent. See “informed consent” below. If it is not feasible to obtain or transmit

- 24 -

the writing at the time the person gives informed consent, then the lawyer must

obtain or transmit it within a reasonable time.

“Firm” or “law firm” denotes a lawyer or lawyers in a law partnership,

professional corporation, sole proprietorship, or other association authorized to

practice law; or lawyers employed in the legal department of a corporation or other

organization.

“Fraud” or “fraudulent” denotes conduct having a purpose to deceive and

not merely negligent misrepresentation or failure to apprise another of relevant

information.

“Informed consent” denotes the agreement by a person to a proposed course

of conduct after the lawyer has communicated adequate information and

explanation about the material risks of and reasonably available alternatives to the

proposed course of conduct.

“Knowingly,” “known,” or “knows” denotes actual knowledge of the fact in

question. A person’s knowledge may be inferred from circumstances.

“Lawyer” denotes a person who is a member of The Florida Bar or

otherwise authorized to practice in any court of the Sstate of Florida.

“Partner” denotes a member of a partnership and a shareholder in a law firm

organized as a professional corporation, or a member of an association authorized

to practice law.

“Reasonable” or “reasonably” when used in relation to conduct by a lawyer

denotes the conduct of a reasonably prudent and competent lawyer.

“Reasonable belief” or “reasonably believes” when used in reference to a

lawyer denotes that the lawyer believes the matter in question and that the

circumstances are such that the belief is reasonable.

“Reasonably should know” when used in reference to a lawyer denotes that

a lawyer of reasonable prudence and competence would ascertain the matter in

question.

“Screened” denotes the isolation of a lawyer from any participation in a

matter through the timely imposition of procedures within a firm that are

reasonably adequate under the circumstances to protect information that the

isolated lawyer is obligated to protect under these rules or other law.

- 25 -

“Substantial” when used in reference to degree or extent denotes a material

matter of clear and weighty importance.

“Tribunal” denotes a court, an arbitrator in a binding arbitration proceeding,

or a legislative body, administrative agency, or other body acting in an adjudicative

capacity. A legislative body, administrative agency, or other body acts in an

adjudicative capacity when a neutral official, after the presentation of evidence or

legal argument by a party or parties, will render a binding legal judgment directly

affecting a party’s interests in a particular matter.

“Writing” or “written” denotes a tangible or electronic record of a

communication or representation, including handwriting, typewriting, printing,

photostating, photography, audio or video recording, and electronic

communications. A “signed” writing includes an electronic sound, symbol or

process attached to or logically associated with a writing and executed or adopted

by a person with the intent to sign the writing.

COMMENTomment

[No Change]

RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED AND OTHER

TRANSACTIONS

(a) Business Transactions With or Acquiring Interest Adverse to

Client. A lawyer shall notis prohibited from entering into a business transaction

with a client or knowingly acquireacquiring an ownership, possessory, security, or

other pecuniary interest adverse to a client, except a lien granted by law to secure a

lawyer’s fee or expenses, unless:

(1) – (3) [No Change]

(b) Using Information to Disadvantage of Client. A lawyer shall not

useis prohibited from using information relating to representation of a client to the

disadvantage of the client unless the client gives informed consent, except as

permitted or required by these rules.

from soliciting any substantial gift from a client, including a testamentary gift, or

preparepreparing on behalf of a client an instrument giving the lawyer or a person

- 26 -

related to the lawyer any substantial gift unless the lawyer or other recipient of the

gift is related to the client. For purposes of this subdivision, related persons

include a spouse, child, grandchild, parent, grandparent, or other relative with

whom the lawyer or the client maintains a close, familial relationship.

(d) Acquiring Literary or Media Rights. Prior to the conclusion of

representation of a client, a lawyer shall not make or negotiateis prohibited from

making or negotiating an agreement giving the lawyer literary or media rights to a

portrayal or account based in substantial part on information relating to the

representation.

(e) Financial Assistance to Client. A lawyer shall not provideis

prohibited from providing financial assistance to a client in connection with

pending or contemplated litigation, except that:

(1) – (2) [No Change]

(f) Compensation by Third Party. A lawyer shall not acceptis

prohibited from accepting compensation for representing a client from one other

than the client unless:

(1) – (3) [No Change]

(g) Settlement of Claims for Multiple Clients. A lawyer who represents

2 or more clients shall not participateis prohibited from participating in making an

aggregate settlement of the claims of or against the clients, or in a criminal case an

aggregated agreement as to guilty or nolo contendere pleas, unless each client

gives informed consent, in a writing signed by the client. The lawyer’s disclosure

shallmust include the existence and nature of all the claims or pleas involved and

of the participation of each person in the settlement.

(h) Limiting Liability for Malpractice. A lawyer shall not makeis

prohibited from making an agreement prospectively limiting the lawyer’s liability

to a client for malpractice unless permitted by law and the client is independently

represented in making the agreement. A lawyer shall not settleis prohibited from

settling a claim for such liability for malpractice with an unrepresented client or

former client without first advising that person in writing that independent

representation is appropriate in connection therewithmaking the agreement.

(i) Acquiring Proprietary Interest in Cause of Action. A lawyer shall

not acquireis prohibited from acquiring a proprietary interest in the cause of action

- 27 -

or subject matter of litigation the lawyer is conducting for a client, except that the

lawyer may:

(1) – (2) [No Change]

(j) Representation of Insureds. When a lawyer undertakes the defense of

an insured other than a governmental entity, at the expense of an insurance

company, in regard to an action or claim for personal injury or for property

damages, or for death or loss of services resulting from personal injuries based

upon tortious conduct, including product liability claims, the Statement of Insured

Client’s Rights shallmust be provided to the insured at the commencement of the

representation. The lawyer shallmust sign the statement certifying the date on

which the statement was provided to the insured. The lawyer shallmust keep a

copy of the signed statement in the client’s file and shallmust retain a copy of the

signed statement for 6 years after the representation is completed. The statement

shallmust be available for inspection at reasonable times by the insured, or by the

appropriate disciplinary agency. Nothing in the Statement of Insured Client’s

Rights shall be deemed to augments or detracts from any substantive or ethical

duty of a lawyer or affect the extradisciplinary consequences of violating an

existing substantive legal or ethical duty; nor shalldoes any matter set forth in the

Statement of Insured Client’s Rights give rise to an independent cause of action or

create any presumption that an existing legal or ethical duty has been breached.

STATEMENT OF INSURED CLIENT’S RIGHTS

An insurance company has selected a lawyer to defend a lawsuit or claim

against you. This Statement of Insured Client’s Rights is being given to you to

assure that you are aware of your rights regarding your legal representation. This

disclosure statement highlights many, but not all, of your rights when your legal

representation is being provided by the insurance company.

1. [No Change]

2. [No Change]

3. Directing the Lawyer. If your policy, like most insurance policies,

provides for the insurance company to control the defense of the lawsuit, the

lawyer will be taking instructions from the insurance company. Under

suchthese policies, the lawyer cannot act solely on your instructions, and at the

same time, cannot act contrary to your interests. Your preferences should be

communicated to the lawyer.

- 28 -

4. Litigation Guidelines. Many insurance companies establish guidelines

governing how lawyers are to proceed in defending a claim. Sometimes those

guidelines affect the range of actions the lawyer can take and may require

authorization of the insurance company before certain actions are undertaken.

You are entitled to know the guidelines affecting the extent and level of legal

services being provided to you. UponOn request, the lawyer or the insurance

company should either explain the guidelines to you or provide you with a

copy. If the lawyer is denied authorization to provide a service or undertake an

action the lawyer believes necessary to your defense, you are entitled to be

informed that the insurance company has declined authorization for the service

or action.

5. [No Change]

6. [No Change]

7. [No Change]

8. [No Change]

9. [No Change]

10. Reporting Violations. If at any time you believe that your lawyer has

acted in violation of your rights, you have the right to report the matter to The

Florida Bar, the agency that oversees the practice and behavior of all lawyers in

Florida. For information on how to reach The Florida Bar call (850) 561-5839

or you may access the Barbar at www.FlaBar.orgwww.floridabar.org.

IF YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS,

PLEASE ASK FOR AN EXPLANATION.

CERTIFICATECERTIFICATE

The undersigned hereby certifies that this Statement of Insured Client’s Rights

has been provided to .....(name of insured/client(s)).....

by .....(mail/hand delivery)..... at .....(address of insured/client(s) to which

mailed or delivered,) on .....(date)......

________________________________

[Signature of AttorneyLawyer]

- 29 -

________________________________

[Print/Type Name]

Florida Bar No.: __________________

(k) Imputation of Conflicts. While lawyers are associated in a firm, a

prohibition in the foregoing subdivisions (a) through (i) that applies to any one of

them shall applyapplies to all of them.

COMMENTomment

Business transactions between client and lawyer

A lawyer’s legal skill and training, together with the relationship of trust and

confidence between lawyer and client, create the possibility of overreaching when

the lawyer participates in a business, property, or financial transaction with a

client. The requirements of subdivision (a) must be met even when the transaction

is not closely related to the subject matter of the representation. The rule applies to

lawyers engaged in the sale of goods or services related to the practice of law. See

rule 4-5.7. It does not apply to ordinary fee arrangements between client and

lawyer, which are governed by rule 4-1.5, although its requirements must be met

when the lawyer accepts an interest in the client’s business or other nonmonetary

property as payment for all or part of a fee. In addition, the rule does not apply to

standard commercial transactions between the lawyer and the client for products or

services that the client generally markets to others, for example, banking or

brokerage services, medical services, products manufactured or distributed by the

client, and utilities services. In suchthese types of transactions the lawyer has no

advantage in dealing with the client, and the restrictions in subdivision (a) are

unnecessary and impracticable. Likewise, subdivision (a) does not prohibit a

lawyer from acquiring or asserting a lien granted by law to secure the lawyer’s fee

or expenses.

Subdivision (a)(1) requires that the transaction itself be fair to the client and

that its essential terms be communicated to the client, in writing, in a manner that

can be reasonably understood. Subdivision (a)(2) requires that the client also be

advised, in writing, of the desirability of seeking the advice of independent legal

counsel. It also requires that the client be given a reasonable opportunity to obtain

such advice. Subdivision (a)(3) requires that the lawyer obtain the client’s

informed consent, in a writing signed by the client, both to the essential terms of

the transaction and to the lawyer’s role. When necessary, the lawyer should

discuss both the material risks of the proposed transaction, including any risk

- 30 -

presented by the lawyer’s involvement, and the existence of reasonably available

alternatives and should explain why the advice of independent legal counsel is

desirable. See terminology (definition of informed consent).

The risk to a client is greatest when the client expects the lawyer to represent

the client in the transaction itself or when the lawyer’s financial interest otherwise

poses a significant risk that the lawyer’s representation of the client will be

materially limited by the lawyer’s financial interest in the transaction. Here the

lawyer’s role requires that the lawyer must comply, not only with the requirements

of subdivision (a), but also with the requirements of rule 4-1.7. Under that rule, the

lawyer must disclose the risks associated with the lawyer’s dual role as both legal

adviser and participant in the transaction, such as the risk that the lawyer will

structure the transaction or give legal advice in a way that favors the lawyer’s

interests at the expense of the client. Moreover, theThe lawyer also must obtain

the client’s informed consent. In some cases, the lawyer's interest may be such that

rule 4-1.7 will preclude the lawyer from seeking the client's consent to the

transaction because of the lawyer's interest.

If the client is independently represented in the transaction, subdivision

(a)(2) of this rule is inapplicable, and the subdivision (a)(1) requirement for full

disclosure is satisfied either by a written disclosure by the lawyer involved in the

transaction or by the client’s independent counsel. The fact that the client was

independently represented in the transaction is relevant in determining whether the

agreement was fair and reasonable to the client as subdivision (a)(1) further

requires.

Gifts to lawyers

A lawyer may accept a gift from a client, if the transaction meets general

standards of fairness and if the lawyer does not prepare the instrument bestowing

the gift. For example, a simple gift such as a present given at a holiday or as a

token of appreciation is permitted. If a client offers the lawyer a more substantial

gift, subdivision (c) does not prohibit the lawyer from accepting it, although such

athe gift may be voidable by the client under the doctrine of undue influence,

which treats client gifts as presumptively fraudulent. In any event, due to concerns

about overreaching and imposition on clients, a lawyer may not suggest that a

substantial gift be made to the lawyer or for the lawyer’s benefit, except where the

lawyer is related to the client as set forth in subdivision (c). If effectuation of a

substantial gift requires preparing a legal instrument such as a will or conveyance,

however, the client should have the detached advice that another lawyer can

provide and the lawyer should advise the client to seek advice of independent

- 31 -

counsel. Subdivision (c) recognizes an exception where the client is related by

blood or marriage to the donee or the gift is not substantial.

This rule does not prohibit a lawyer from seeking to have the lawyer or a

partner or associate of the lawyer namedfrom serving as personal representative of

the client's estate or toin another potentially lucrative fiduciary position in

connection with a client’s estate planning. A lawyer may prepare a document that

appoints the lawyer or a person related to the lawyer to a fiduciary office if the

client is properly informed, the appointment does not violate rule 4-1.7, the

appointment is not the product of undue influence or improper solicitation by the

lawyer, and the client gives informed consent, confirmed in writing.Nevertheless,

such appointments will be subject to the general conflict of interest provision in

rule 4-1.7 when there is a significant risk that the lawyer's interest in obtaining the

appointment will materially limit the lawyer's independent professional judgment

in advising the client concerning the choice of a personal representative or other

fiduciary. In obtaining the client’s informed consent to the conflict, the lawyer

should advise the client in writing concerning the nature and extent of the lawyer's

financial interest in the appointment, as well as the availability of alternative

candidates for the positionwho is eligible to serve as a fiduciary, that a person who

serves as a fiduciary is entitled to compensation, and that the lawyer may be

eligible to receive compensation for serving as a fiduciary in addition to any

attorneys’ fees that the lawyer or the lawyer’s firm may earn for serving as a

lawyer for the fiduciary.

Literary rights

An agreement by which a lawyer acquires literary or media rights

concerning the conduct of the representation creates a conflict between the

interests of the client and the personal interests of the lawyer. Measures suitable in

the representation of the client may detract from the publication value of an

account of the representation. Subdivision (d) does not prohibit a lawyer

representing a client in a transaction concerning literary property from agreeing

that the lawyer’s fee shallwill consist of a share in ownership in the property if the

arrangement conforms to rule 4-1.5 and subdivision (a) and (i).

Financial assistance

Lawyers may not subsidize lawsuits or administrative proceedings brought

on behalf of their clients, including making or guaranteeing loans to their clients

for living expenses, because to do so would encourage clients to pursue lawsuits

that might not otherwise be brought and because suchfinancial assistance gives

- 32 -

lawyers too great a financial stake in the litigation. These dangers do not warrant a

prohibition on a lawyer advancing a client court costs and litigation expenses,

including the expenses of diagnostic medical examination used for litigation

purposes and the reasonable costs of obtaining and presenting evidence, because

these advances are virtually indistinguishable from contingent fees and help ensure

access to the courts. Similarly, an exception allowing lawyers representing

indigent clients to pay court costs and litigation expenses regardless of whether

these funds will be repaid is warranted.

Person paying for lawyer’s services

Lawyers are frequently asked to represent a client under circumstances in

which a third person will compensate the lawyer, in whole or in part. The third

person might be a relative or friend, an indemnitor (such as a liability insurance

company), or a co-client (such as a corporation sued along with one or more of its

employees). Because third-party payers frequently have interests that differ from

those of the client, including interests in minimizing the amount spent on the

representation and in learning how the representation is progressing, lawyers are

prohibited from accepting or continuing suchthese representations unless the

lawyer determines that there will be no interference with the lawyer’s independent

professional judgment and there is informed consent from the client. See also rule

4-5.4(d) (prohibiting interference with a lawyer’s professional judgment by one

who recommends, employs or pays the lawyer to render legal services for another).

Sometimes, it will be sufficient for the lawyer to obtain the client’s informed

consent regarding the fact of the payment and the identity of the third-party payer.

If, however, the fee arrangement creates a conflict of interest for the lawyer, then

the lawyer must comply with rule 4-1.7. The lawyer must also conform to the

requirements of rule 4-1.6 concerning confidentiality. Under rule 4-1.7(a), a

conflict of interest exists if there is significant risk that the lawyer’s representation

of the client will be materially limited by the lawyer’s own interest in the fee

arrangement or by the lawyer’s responsibilities to the third-party payer (for

example, when the third-party payer is a co-client). Under rule 4-1.7(b), the

lawyer may accept or continue the representation with the informed consent of

each affected client, unless the conflict is nonconsentable under that subdivision.

Under rule 4-1.7(b), the informed consent must be confirmed in writing or clearly

stated on the record at a hearing.

Aggregate settlements

[No Change]

- 33 -

Acquisition of interest in litigation

[No Change]

Representation of insureds

As with any representation of a client when another person or client is

paying for the representation, the representation of an insured client at the request

of the insurer creates a special need for the lawyer to be cognizant of the potential

for ethical risks. The nature of the relationship between a lawyer and a client can

lead to the insured or the insurer having expectations inconsistent with the duty of

the lawyer to maintain confidences, avoid conflicts of interest, and otherwise

comply with professional standards. When a lawyer undertakes the representation

of an insured client at the expense of the insurer, the lawyer should ascertain

whether the lawyer will be representing both the insured and the insurer, or only

the insured. Communication with both the insured and the insurer promotes their

mutual understanding of the role of the lawyer in the particular representation. The

Statement of Insured Client’s Rights has been developed to facilitate the lawyer’s

performance of ethical responsibilities. The highly variable nature of insurance

and the responsiveness of the insurance industry in developing new types of

coverages for risks arising in the dynamic American economy render it impractical

to establish a statement of rights applicable to all forms of insurance. The

Statement of Insured Client’s Rights is intended to apply to personal injury and

property damage tort cases. It is not intended to apply to workers’ compensation

cases. Even in that relatively narrow area of insurance coverage, there is

variability among policies. For that reason, the statement is necessarily broad. It is

the responsibility of the lawyer to explain the statement to the insured. In

particular cases, the lawyer may need to provide additional information to the

insured.

Because the purpose of the statement is to assist laypersons in understanding

their basic rights as clients, it is necessarily abbreviated. Although brevity

promotes the purpose for which the statement was developed, it also necessitates

incompleteness. For these reasons, it is specifically provided that the statement

shalldoes not serve to establish any legal rights or duties, nor create any

presumption that an existing legal or ethical duty has been breached. As a result,

the statement and its contents should not be invoked by opposing parties as

grounds for disqualification of a lawyer or for procedural purposes. The purpose

of the statement would be subverted if it could be used in such a manner.

- 34 -

The statement is to be signed by the lawyer to establish that it was timely

provided to the insured, but the insured client is not required to sign it. It is in the

best interests of the lawyer to have the insured client sign the statement to avoid

future questions, but it is considered impractical to require the lawyer to obtain the

insured client’s signature in all instances.

Establishment of the statement and the duty to provide it to an insured in tort

cases involving personal injury or property damage should not be construed as

lessening the duty of the lawyer to inform clients of their rights in other

circumstances. When other types of insurance are involved, when there are other

third-party payors of fees, or when multiple clients are represented, similar needs

for fully informing clients exist, as recognized in rules 4-1.7(c) and 4-1.8(f).

Imputation of prohibitions

[No Change]

RULE 4-5.8 PROCEDURES FOR LAWYERS LEAVING LAW FIRMS

AND DISSOLUTION OF LAW FIRMS

(a) [No Change]

(b) Client’s Right to Counsel of Choice. Clients have the right to expect

that they may choose counsel when legal services are required and, with few

exceptions, nothing that lawyers and law firms do shall have any effect onaffects

the exercise of that right.

(1) Lawyers Leaving Law Firms. Absent a specific agreement

otherwise, a lawyer who is leaving a law firm shallmay not unilaterally contact

those clients of the law firm for purposes of notifying them about the anticipated

departure or to solicit representation of the clients unless the lawyer has

approached an authorized representative of the law firm and attempted to negotiate

a joint communication to the clients concerning the lawyer leaving the law firm

and bona fide negotiations have been unsuccessful.

(2) Dissolution of Law Firm. Absent a specific agreement

otherwise, a lawyer involved in the dissolution of a law firm shallmay not

unilaterally contact clients of the law firm unless, after bona fide negotiations,

- 35 -

authorized members of the law firm have been unable to agree on a method to

provide notice to clients.

(d) Form for Contact With Clients.

(1) Lawyers Leaving Law Firms. When a joint response has not

been successfully negotiated, unilateral contact by individual members or the law

firm shallmust give notice to clients that the lawyer is leaving the law firm and

provide options to the clients to choose to remain a client of the law firm, to choose

representation by the departing lawyer, or to choose representation by other

lawyers or law firms.

(2) Dissolution of Law Firms. When a law firm is being dissolved

and no procedure for contacting clients has been agreed uponto, unilateral contact

by members of the law firm shallmust give notice to clients that the firm is being

dissolved and provide options to the clients to choose representation by any

member of the dissolving law firm, or representation by other lawyers or law firms.

(3) Liability for Fees and Costs. In all instances, notice to the

client required under this rule shallmust provide information concerning potential

liability for fees for legal services previously rendered, costs expended, and how

any deposits for fees or costs will be handled. In addition, if appropriate, notice

shallmust be given that reasonable charges may be imposed to provide a copy of

any file to a successor lawyer.

(e) Nonresponsive Clients.

(1) Lawyers Leaving Law Firms. In the event a client fails to

advise the lawyers and law firm of the client’s intention in regard to who is to

provide future legal services when a lawyer is leaving the firm, the client shall be

considered as remainingremains a client of the firm until the client advises

otherwise.

(2) Dissolution of Law Firms. In the event a client fails to advise

the lawyers of the client’s intention in regard to who is to provide future legal

services when a law firm is dissolving, the client shall be considered as

remainingremains a client of the lawyer who primarily provided the prior legal

services on behalf of the firm until the client advises otherwise.

- 36 -

COMMENTomment

The current rule of law regarding ownership of client files is discussed in

Donahue v. Vaughn, 721 So. 2d 356 (Fla. 5th DCA 1998), and Dowda & Fields,

P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984). A lawyer leaving a law firm,

when the law firm remains available to continue legal representation, has no right

nor expectation to take client files without an agreement with the law firm to do so.

While clients have the right to choose counsel, suchthat choice may

implicate obligations. Those obligations may include such as a requirement to pay

for legal services previously rendered and costs expended in connection with the

representation as well as a reasonable fee for copying the client’s file.

Whether individual members have any individual legal obligations to a

client is a matter of contract law, tort law, or court rules that is outside the scope of

rules governing lawyer conduct. Generally, individual lawyers have such

obligations only if provided for in the contract for representation. Nothing in this

rule or in the contract for representation may alter the ethical obligations that

individual lawyers have to clients as provided elsewhere in these rules.

It is anticipated that inIn most instances a lawyer leaving a law firm and the

law firm willshould engage in bona fide, good faith negotiations and craft a joint

communication providing adequate information to the client so that the client may

make a fully informed decision concerning future representation. In those

instances in which bona fide negotiations are unsuccessful, unilateral

communication may be made by the departing lawyer or the law firm. In

suchthose circumstances, great care should be taken to meet the obligation of

adequate communication and for this reason the specific requirements of

subdivisions (d)(1) &and (3) are provided.

Lawyers and firms should engage in bona fide, good faith negotiations

within a reasonable period of time following their knowledge of either the

anticipated change in firm composition or, if the anticipated change is unknown,

within a reasonable period of time after the change in firm composition. The

actual notification to clients should also occur within a reasonable period of time.

What is reasonable will depend on the circumstances, including the nature of the

matters in which the lawyer represented the clients and whether the affected clients

have deadlines that need to be met within a short period of time.

For purposes of this rule, clients who should be notified of the change in

firm composition include current clients for whom the departing lawyer has

- 37 -

provided significant legal services with direct client contact. Clients need not be

notified of the departure of a lawyer with whom the client has had no direct

contact. Clients whose files are closed need not be notified unless the former client

contacts the firm, at which point the firm should notify the former client of the

departure of any lawyer who performed significant legal services for that former

client and had direct contact with that former client.

Although contact by telephone is not prohibited under this rule, proof of

compliance with the requirements of this rule may be difficult unless the

notification is in writing.

In order to comply with the requirements of this rule, both departing lawyers

and the law firm should be given access to the names and contact information of all

clients for whom the departing lawyer has provided significant legal services and

with whom the lawyer has had direct contact.

If neither the departing lawyer nor the law firm intends to continue

representation of the affected clients, they may either agree on a joint letter

providing that information to those clients, or may separately notify the affected

clients after bona fide, good faith negotiations have failed. Any obligation to give

the client reasonable notice, protect the client’s interests on withdrawal, and seek

permission of a court to withdraw may apply to both the departing lawyer and

lawyers remaining in the firm.

Most law firms have some written instrument creating the law firm and

specifying procedures to be employed upon dissolution of the firm. However,

when such an instrument does not exist or does not adequately provide for

procedures in the event of dissolution, the provisions of this rule are provided so

that dissolution of the law firm does not disproportionately affect client rights.

As in instances of a lawyer departing a law firm, lawyers involved in the

dissolution of law firms have a continuing obligation to provide adequate

information to a client so that the client may make informed decisions concerning

future representation.

The Florida Bar’s Law Office Management Advisory ServicePractice

Resource Institute has sample forms for notice to clients and sample partnership

and other contracts that are available to members. The forms may be accessed on

the bar’s website, www.flabar.orgwww.floridabar.org, or by calling The Florida

Bar headquarters in Tallahassee.

- 38 -

Lawyers involved in either a change in law firm composition or law firm

dissolution may have duties to notify the court if the representation is in litigation.

If the remaining law firm will continue the representation of the client, no

notification of the change in firm composition to the court may be required, but

such a notification may be advisable. If the departing lawyer will take over

representation of the client, a motion for substitution of counsel or a motion by the

firm to withdraw from the representation may be appropriate. If the departing

lawyer and the law firm have made the appropriate request for the client to select

either the departing lawyer or the law firm to continue the representation, but the

client has not yet responded, the law firm should consider notifying the court of the

change in firm composition, although under ordinary circumstances, absent an

agreement to the contrary, the firm will continue the representation in the interim.

If the departing lawyer and the law firm have agreed regarding who will continue

handling the client’s matters then, absent disagreement by the client, the agreement

normally will determine whether the departing lawyer or the law firm will continue

the representation.

RULE 4-7.18 DIRECT CONTACT WITH PROSPECTIVE CLIENTS

(a) Solicitation. Except as provided in subdivision (b) of this rule, a

lawyer may not:

(1) solicit in person, or permit employees or agents of the lawyer to

solicit in person on the lawyer’s behalf, professional employment from a

prospective client with whom the lawyer has no family or prior professional

relationship, in person or otherwise, when a significant motive for the lawyer’s

doing so is the lawyer’s pecuniary gain. The term “solicit” includes contact in

person, by telephone, telegraph, or facsimile, by electronic means that include real-

time communication face-to-face such as video telephone or video conference, or

by other communication directed to a specific recipient and includes any written

form of communication, including any electronic mail communication, directed to

a specific recipient and not meetingthat does not meet the requirements of

subdivision (b) of this rule and rules 4-7.11 through 4-7.17 of these rules.

(2) [No Change]

(b) Written Communication.

(1) [No Change]

- 39 -

(2) Written communications to prospective clients for the purpose

of obtaining professional employment that are not prohibited by subdivision (b)(1)

are subject to the following requirements:

(A) [No Change]

(B) Each pageseparate enclosure of suchthe communication and

the face of an envelope containing the communication must be reasonably

prominently marked “advertisement” in ink that contrasts with both the

background it is printed on and other text appearing on the same page. If the

written communication is in the form of a self-mailing brochure or pamphlet, the

“advertisement” mark must be reasonably prominently marked on the address

panel of the brochure or pamphlet, and on each panel of the inside of the brochure

or pamphlet, and on each separate enclosure. If the written communication is sent

via electronic mail, the subject line must begin with the word “Advertisement.”

Brochures solicited by clients or prospective clients need not contain the

“advertisement” mark.

(I) A written communication seeking employment by a specific

prospective client in a specific matter shallmust not reveal on the envelope, or on

the outside of a self-mailing brochure or pamphlet, the nature of the client’s legal

problem.

(3) The requirements in subdivision (b)(2) of this rule do not apply

to communications between lawyers, between lawyers and their own current and

former clients, or between lawyers and their own family members, or to

communications by the lawyer at a prospective client’s request.

COMMENTomment

[No Change]

- 40 -

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 must 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, must be kept in a separate federally insured bank, credit

union, 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) – (B) [No Change]

(2) Compliance with Client Directives. Trust funds may be

separately held and maintained other than in a bank, credit union, 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) [No Change]

(b) Application of Trust Funds or Property to Specific Purpose.

Money or other property entrusted to an attorneya lawyer for a specific purpose,

including advances for fees, costs, and expenses, is held in trust and must be

applied only to that purpose. Money and other property of clients coming into the

hands of an attorneya lawyer are not subject to counterclaim or setoff for attorney’s

fees, and a refusal to account for and deliver over suchthe property upon demand

shall be deemed ais conversion.

money or other property upon which the lawyer has a valid lien for services nor

does it preclude the payment of agreed fees from the proceeds of transactions or

collection.

(d) [No Change]

(e) Notice of Receipt of Trust Funds; Delivery; Accounting. UponOn

receiving funds or other property in which a client or third person has an interest, a

- 41 -

lawyer shallmust promptly notify the client or third person. Except as stated in this

rule or otherwise permitted by law or by agreement with the client, a lawyer

shallmust promptly deliver to the client or third person any funds or other property

that the client or third person is entitled to receive and, upon request by the client

or third person, shallmust promptly render a full accounting regarding suchthe

property.

(f) Disputed Ownership of Trust Funds. When in the course of

representation a lawyer is in possession of property in which 2 or more persons (1

of whom may be the lawyer) claim interests, the property shallmust be treated by

the lawyer as trust property, but the portion belonging to the lawyer or law firm

shallmust be withdrawn within a reasonable time after it becomes due unless the

right of the lawyer or law firm to receive it is disputed, in which event the portion

in dispute shallmust be kept separate by the lawyer until the dispute is resolved.

The lawyer shallmust promptly distribute all portions of the property as to which

the interests are not in dispute.

(g) Interest on Trust Accounts (IOTA) Program.

(1) Definitions. As used in this rule, the term:

(A) “Nominal or short term” describes funds of a client or third

person that, pursuant to subdivision (3), below, the lawyer has determined cannot

earn income for the client or third person in excess of the costs to secure the

income.

(B) – (C) [No Change]

(D) “Eligible Iinstitution” means any bank or savings and loan

association authorized by federal or state laws to do business in Florida and insured

by the Federal Deposit Insurance Corporation, any state or federal credit union

authorized by federal or state laws to do business in Florida and insured by the

National Credit Union Share Insurance Fund, or any successor insurance entities or

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) “Interest or dividend-bearing trust account” means a

federally insured checking account or investment product, including a daily

financial institution repurchase agreement or a money market fund. A daily

financial institution repurchase agreement must be fully collateralized by, and an

- 42 -

open-end money market fund must consist solely of, United States Government

Securities. A daily financial institution repurchase agreement may be established

only with an eligible institution that is deemed to be “well capitalized” or

“adequately capitalized” as defined by applicable federal statutes and regulations.

An open-end money market fund must hold itself out as a money market fund as

defined by applicable federal statutes and regulations under the Investment

Company Act of 1940, and have total assets of at least $250 million. The funds

covered by this rule shall beare subject to withdrawal upon request and without

delay.

(2) Required Participation. All nominal or short-term funds

belonging to clients or third persons that are placed in trust with any member of

The Florida Bar practicing law from an office or other business location within the

state of Florida shallmust be deposited into one or more IOTA accounts, unless the

funds may earn income for the client or third person in excess of the costs incurred

to secure the income, except as provided elsewhere in this chapter. Only trust

funds that are nominal or short term shallmust be deposited into an IOTA account.

The Florida bar member shallmust certify annually, in writing, that the bar member

is in compliance with, or is exempt from, the provisions of this rule.

(3) Determination of Nominal or Short-Term Funds. The lawyer

shallmust exercise good faith judgment in determining upon receipt whether the

funds of a client or third person are nominal or short term. In the exercise of this

good faith judgment, the lawyer shallmust consider such factors as the:

(A) the amount of a client’s or third person’s funds to be held

by the lawyer or law firm;

(B) the period of time suchthe funds are expected to be held;

proceeding(s);

(D) thelawyer or law firm’s cost to the lawyer or law firm of

establishing and maintaining an interest-bearing account or other appropriate

investment for the benefit of the client or third person; and

(E) minimum balance requirements and/or service charges or

fees imposed by the eligible institution.

The determination of whether a client’s or third person’s funds are

nominal or short term shall rests in the sound judgment of the lawyer or law firm.

- 43 -

No lawyer shallwill be charged with ethical impropriety or other breach of

professional conduct based on the exercise of suchthe lawyer’s good faith

judgment.

(4) Notice to Foundation. Lawyers or law firms shallmust advise

the Foundationfoundation, at Post Office Box 1553, Orlando, Florida 32802-

1553,its current location posted on The Florida Bar’s website, of the establishment

of an IOTA account for funds covered by this rule. SuchThe notice shallmust

include: the IOTA account number as assigned by the eligible institution; the

name of the lawyer or law firm on the IOTA account; the eligible institution name;

the eligible institution address; and the name and Florida Bar attorney number of

the lawyer, or of each member of The Florida Bar in a law firm, practicing from an

office or other business location within the state of Florida that has established the

IOTA account.

(5) Eligible Institution Participation in IOTA. Participation in the

IOTA program is voluntary for banks, credit unions, savings and loan associations,

and investment companies. Institutions that choose to offer and maintain IOTA

accounts must meet the following requirements:

(A) Interest Rates and Dividends. Eligible institutions

shallmust maintain IOTA accounts which pay the highest interest rate or dividend

generally available from the institution to its non-IOTA account customers when

IOTA accounts meet or exceed the same minimum balance or other account

eligibility qualifications, if any.

(B) Determination of Interest Rates and Dividends. In

determining the highest interest rate or dividend generally available from the

institution to its non-IOTA accounts in compliance with subdivision (5)(A), above,

eligible institutions may consider factors, in addition to the IOTA account balance,

customarily considered by the institution when setting interest rates or dividends

for its customers, provided that suchthese factors do not discriminate between

IOTA accounts and accounts of non-IOTA customers, and that these factors do not

include that the account is an IOTA account.

shallmust:

(i) calculate and remit interest or dividends on the

balance of the deposited funds, in accordance with the

institution’s standard practice for non-IOTA account customers,

- 44 -

less reasonable service charges or fees, if any, in connection

with the deposited funds, at least quarterly, to the

Foundationfoundation;

(ii) transmit with each remittance to the

Foundationfoundation a statement showing the name of the

lawyer or law firm from whose IOTA account the remittance is

sent, the lawyer’s or law firm’s IOTA account number as

assigned by the institution, the rate of interest applied, the

period for which the remittance is made, the total interest or

dividend earned during the remittance period, the amount and

description of any service charges or fees assessed during the

remittance period, and the net amount of interest or dividend

remitted for the period; and

(iii) transmit to the depositing lawyer or law firm, for

each remittance, a statement showing the amount of interest or

dividend paid to the Foundationfoundation, the rate of interest

applied, and the period for which the statement is made.

(6) Small Fund Amounts. The Foundationfoundation may establish

procedures for a lawyer or law firm to maintain an interest-free trust account for

client and third-person funds that are nominal or short term when their nominal or

short-term trust funds cannot reasonably be expected to produce or have not

produced interest income net of reasonable eligible institution service charges or

fees.

(7) Confidentiality and Disclosure. The Foundation

shallfoundation must protect the confidentiality of information regarding a

lawyer’s or law firm’s trust account obtained by virtue of this rule. However, the

Foundation shallfoundation must, upon an official written inquiry of The Florida

Bar made in the course of an investigation conducted under these Rules Regulating

The Florida Bar, disclose requested relevant information about the location and

account numbers of lawyer or law firm trust accounts.

(h) Interest on Funds That Are Not Nominal or Short-Term. A lawyer

who holds funds for a client or third person and who determines that the funds are

not nominal or short-term as defined elsewhere in this subchapter shallmay not

receive benefit from any interest on funds held in trust.

- 45 -

(i) Unidentifiable Trust Fund Accumulations and Trust Funds Held

for Missing Owners. When an attorney’sa lawyer’s trust account contains an

unidentifiable accumulation of trust funds or property, or trust funds or property

held for missing owners, suchthe funds or property shall be somust be designated

as unidentifiable or held for missing owners. DiligentThe lawyer must make a

diligent search and inquiry shall then be made by the attorney to determine the

beneficial owner of any unidentifiable accumulation or the address of any missing

owner. If the beneficial owner of an unidentified accumulation is determined, the

funds shallmust be properly identified as the lawyer’s trust property in the lawyer’s

possession. If a missing beneficial owner is located, the trust funds or property

shallmust be paid over or delivered to the beneficial owner if the owner is then

entitled to receive the samefunds or property. Trust funds and property that remain

unidentifiable and funds or property that are held for missing owners after being

designated as such shall,must be disposed of as provided in applicable Florida law

after diligent search and inquiry fail to identify the beneficial owner or owner’s

address, be disposed of as provided in applicable Florida law.

(j) Disbursement against Uncollected Funds. A lawyer generally may

not use, endanger, or encumber money held in trust for a client for purposes of

carrying out the business of another client without the permission of the owner

given after full disclosure of the circumstances. However, certain categories of

trust account deposits are considered to carry a limited and acceptable risk of

failure so that disbursements of trust account funds may be made in reliance on

suchthese deposits without disclosure to and permission of affected clients owning

trust account funds subject to possibly being affected. Except for disbursements

based upon any of the 6 categories of limited-risk uncollected deposits enumerated

below, a lawyer may not disburse funds held for a client or on behalf of that client

unless the funds held for that client are collected funds. For purposes of this

provision, “collected funds” means funds deposited, finally settled, and credited to

the lawyer’s trust account. Notwithstanding that a deposit made to the lawyer’s

trust account has not been finally settled and credited to the account, theThe lawyer

may disburse uncollected funds from the trust account in reliance on suchthe

deposit when the deposit is made by a:

(1) when the deposit is made by certified check or cashier’s check;

(2) when the deposit is made by a check or draft representing loan

proceeds issued by a federally or state-chartered bank, savings bank, savings and

loan association, credit union, or other duly licensed or chartered institutional

lender;

- 46 -

(3) when the deposit is made by a bank check, official check,

treasurer’s check, money order, or other such instrument issued by a bank, savings

and loan association, or credit union when the lawyer has reasonable and prudent

grounds to believe the instrument will clear and constitute collected funds in the

lawyer’s trust account within a reasonable period of time;

(4) when the deposit is made by a check drawn on the trust account

of a lawyer licensed to practice in the state of Florida or on the escrow or trust

account of a real estate broker licensed under applicable Florida law when the

lawyer has a reasonable and prudent belief that the deposit will clear and constitute

collected funds in the lawyer’s trust account within a reasonable period of time;

(5) when the deposit is made by a check issued by the United

States, the Statestate of Florida, or any agency or political subdivision of the

Statestate of Florida;

(6) when the deposit is made by a check or draft issued by an

insurance company, title insurance company, or a licensed title insurance agency

authorized to do business in the state of Florida and the lawyer has a reasonable

and prudent belief that the instrument will clear and constitute collected funds in

the trust account within a reasonable period of time.

A lawyer’s disbursement of funds from a trust account in reliance on

deposits that are not yet collected funds in any circumstances other than those set

forth above, when it results in funds of other clients being used, endangered, or

encumbered without authorization, may be grounds for a finding of professional

misconduct. In any event, such a disbursement is at the risk of the lawyer making

the disbursement. If any of the deposits fail, the lawyer, upon obtaining

knowledge of the failure, must immediately act to protect the property of the

lawyer’s other clients. However, the lawyer will not be guilty of professional

misconduct if the lawyer accepting any such check that is later dishonored

personally pays the amount of any failed deposit or secures or arranges payment

from sources available to the lawyer other than trust account funds of other clients,

the lawyer shall not be considered guilty of professional misconduct.

(k) Overdraft Protection Prohibited. An attorney lawyer shallmust not

authorize overdraft protection for any account that contains trust funds.

COMMENTomment

A lawyer must hold property of others with the care required of a

professional fiduciary. This chapter requires maintenance of a bank or savings and

- 47 -

loan association account, clearly labeled as a trust account and in which only client

or third party trust funds are held.

Securities should be kept in a safe deposit box, except when some other

form of safekeeping is warranted by special circumstances.

All property that is the property of clients or third persons should be kept

separate from the lawyer’s business and personal property and, if money, in 1 or

more trust accounts, unless requested otherwise in writing by the client. Separate

trust accounts may be warranted when administering estate money or acting in

similar fiduciary capacities.

A lawyer who holds funds for a client or third person and who determines

that the funds are not nominal or short term as defined elsewhere in this subchapter

should hold the funds in a separate interest-bearing account with the interest

accruing to the benefit of the client or third person unless directed otherwise in

writing by the client or third person.

Lawyers often receive funds from which the lawyer’s fee will be paid. The

lawyer is not required to remit to the client funds that the lawyer reasonably

believes represent fees owed. However, a lawyer may not hold funds to coerce a

client into accepting the lawyer’s contention. The disputed portion of the funds

must be kept in a trust account and the lawyer should suggest means for prompt

resolution of the dispute, such as arbitration. The undisputed portion of the funds

shallmust be promptly distributed.

Third parties, such as a client’s creditors, may have lawful claims against

funds or other property in a lawyer’s custody. A lawyer may have a duty under

applicable law to protect suchthese third-party claims against wrongful interference

by the client. When the lawyer has a duty under applicable law to protect the third-

party claim and the third-party claim is not frivolous under applicable law, the

lawyer must refuse to surrender the property to the client until the claims are

resolved. However, a lawyer should not unilaterally assume to arbitrate a dispute

between the client and the third party, and, where appropriate, the lawyer should

consider the possibility of depositing the property or funds in dispute into the

registry of the applicable court so that the matter may be adjudicated.

The Supreme Court of Florida has held that lawyer trust accounts may be the

proper target of garnishment actions. See,See Arnold, Matheny and Eagan, P.A. v.

First American Holdings, Inc., 982 So. 2d 628 (Fla. 2008). Under certain

circumstances lawyers may have a legal duty to protect funds in the lawyer’s trust

- 48 -

account that have been assigned to doctors, hospitals, or other health care providers

directly or designated as Medpay by an insurer. See The Florida Bar v. Silver, 788

So. 2d 958 (Fla. 2001); The Florida Bar v. Krasnove, 697 So. 2d 1208 (Fla. 1997);

The Florida Bar v. Neely, 587 So. 2d 465 (Fla. 1991); Florida Ethics Opinion 02-4.

The obligations of a lawyer under this chapter are independent of those

arising from activity other than rendering legal services. For example, a lawyer

who serves only as an escrow agent is governed by the applicable law relating to

fiduciaries even though the lawyer does not render legal services in the transaction

and is not governed by this rule. However, where a lawyer is an escrow agent and

represents a party to a transaction involving the escrowed funds, the Supreme

Court of Florida has held that lawyers acting as escrow agents have a fiduciary

duty to protect the interests of all parties having an interest in escrowed funds

whether the funds are in a lawyer’s trust account or a separate escrow account. The

Florida Bar v. Golden, 566 So. 2d 1286 (Fla. 1990); see also The Florida Bar v.

Hines, 39 So. 3d 1196 (Fla. 2010); The Florida Bar v. Marrero, 157 So. 3d 1020

(Fla. 2015).

Each lawyer is required to be familiar with and comply with the Rules

Regulating Trust Accounts as adopted by the Supreme Court of Florida.

Money or other property entrusted to a lawyer for a specific purpose,

including advances for fees, costs, and expenses, is held in trust and must be

applied only to that purpose. Money and other property of clients coming into the

hands of a lawyer are not subject to counterclaim or setoff for attorney’s fees, and

a refusal to account for and deliver over suchthe property upon demand shallmust

be a conversion. This does not preclude the retention of money or other property

upon which a lawyer has a valid lien for services or to preclude the payment of

agreed fees from the proceeds of transactions or collections.

Advances for fees and costs (funds against which costs and fees are billed)

are the property of the client or third party paying same on a client’s behalf and are

required to be maintained in trust, separate from the lawyer’s property. Retainers

are not funds against which future services are billed. Retainers are funds paid to

guarantee the future availability of the lawyer’s legal services and are earned by

the lawyer upon receipt. Retainers, being funds of the lawyer, may not be placed

in the client’s trust account.

The test of excessiveness found elsewhere in the Rules Regulating The

Florida Bar applies to all fees for legal services including retainers, nonrefundable

retainers, and minimum or flat fees.

- 49 -

RULE 5-1.2 TRUST ACCOUNTING RECORDS AND PROCEDURES

(a) – (b) [No Change]

(1) Every law firm with more than 1 lawyer must have a written

plan in place for supervision and compliance with this rule for each of the firm’s

trust account(s), which plan must be disseminated to each lawyer in the firm. The

written plan must include the name(s) of the lawyer(s) who sign trust account

checkssignatories for the law firm’s trust accounts, the name(s) of the lawyer(s)

who are responsible for reconciliation of the law firm’s trust account(s) monthly

and annually and the name(s) of the lawyer(s) who are responsible for answering

any questions that lawyers in the firm may have about the firm’s trust account(s).

This written plan must be updated and re-issued to each lawyer in the firm

whenever there are material changes to the plan, such as a change in the lawyer(s)

signing trust account checkssignatories and/or lawyer(s) responsible for

reconciliation of the firm’s trust account(s).

(2) [No Change]

(d) – (f) [No Change]

(g) Audits. Any of the following are cause for The Florida Bar to order an

audit of a trust account:

(1) failure to file the trust account certificate required by this rule

5-1.2(c)(5);

(2) report of trust account violations or errors to staff counsel under

this rule;

(23) return of a trust account check for insufficient funds or for

uncollected funds, absent bank error;

(34) filing of a petition for creditor relief on behalf of a lawyer;

(45) filing of felony charges against a lawyer;

- 50 -

(56) adjudication of insanity or incompetence or hospitalization of a

lawyer under The Florida Mental Health Act;

(67) filing of a claim against a lawyer with the Clients’ Security Fund;

(78) when requestedrequest by the chair or vice chair of a grievance

committee or the board of governors;

(89) on court order; or

(910) on entry of an order of disbarment, on consent or otherwise.

(h) – (i) [No Change]

RULE 6-3.7 INACTIVE STATUS

(a) Purpose. Inactive status as to board certification under chapter 6,

Rules Regulating The Florida Bar, is available to eligible members who apply and

qualify under this rule.

(b) Applicability. Eligible members are:

(1) Judicial Officers. A board certified member who is appointed

or elected as a judicial officer will be permitted to retain board certification in an

inactive status if the member files a properly executed application and if the

member is determined eligible under this rule. For purposes of this rule, the term

“judicial officer” includes:

(A) members of the United States Constitution Article III

federal judiciary;

(B) justices of the Supreme Court of Florida;

(D) judges of the circuit and county courts;

(E) administrative law judges;

(F) magistrates employed through the court system who are

prohibited from practicing law;

- 51 -

(G) masters employed through the court system who are

prohibited from practicing law; and

(H) any other judicial officers, as determined by the BLSE who

are prohibited from practicing law.

(2) Law Professors. A board certified member who does not

practice law or ceases to practice law for the purpose of teaching law will be

permitted to retain board certification in an inactive status if the member files a

properly executed application and is determined eligible under this rule. The

member must agree not to practice law if granted inactive status under this rule.

For purposes of this rule, the term “teaching” includes only accredited law school

and graduate law courses.

(3) Professional Neutrals. A board certified member who does not

practice law or ceases to practice law for the purpose of being or becoming a

mediator, arbitrator or voluntary trial resolution judge will be permitted to retain

board certification in an inactive status if the member files a properly executed

application and is determined eligible under this rule. The member must agree not

to practice law if granted inactive status under this rule.

(4) Military Personnel. A board certified member who is called to

active duty will be permitted to retain board certification in an inactive status if the

member files a properly executed application and is determined eligible under this

rule. The member will be exempt from the continuing legal education required for

recertification applicable to the member’s practice area during the period of active

military duty.

(5) Extended Substantial Hardship Cases. A board certified

member who is not otherwise eligible under this rule, but is unable to practice law

because of a unique substantial and material hardship, medical or otherwise, may

be permitted to retain board certification in an inactive status if the member files an

application that is approved by the BLSE. The BLSE may impose terms and

conditions, waive any requirements, or extend the time within which recertification

requirements must be met. The BLSE may seek the advice of the relevant area

certification committee in determining whether to grant the application, what

conditions should be imposed, or what waivers should be granted.

(6) Not Currently Certified Members. During the 2 years following

the effective date of this policy, any member who voluntarily relinquished board

- 52 -

certification before the effective date of this rule, but who is otherwise eligible for

inactive status, may be granted inactive status on approval by the BLSE.

(1) Compliance with Policies. A member who is granted board

certified inactive status must maintain an active membership with The Florida Bar,

obtain continuing legal education credits required for recertification applicable to

the member’s practice area (unless otherwise exempt under the policies), and

otherwise comply with the applicable rules and policies governing board

certification. The member’s 5-year recertification cycle will remain intact and the

member must report completion of the continuing legal education credits at the end

of each 5-year cycle, unless otherwise exempt under the policies.

(2) Annual Confirmation of Inactive Status. A member who is

granted board certified inactive status must confirm continued eligibility on an

annual basis on a form approved by the BLSE.

(3) Communication. While board certified inactive, the member

must use the phrase “board certified inactive” and include the practice area as a

means by which to distinguish board certification. On reactivation, the member

may communicate board certification as otherwise permitted in the Rules

Regulating The Florida Bar.

(4) Annual Fee. A member who is board certified inactive status

must pay an annual fee equal to one-half of the fee required of board certified

members.

(d) Revocation or Relinquishment of Board Certified Inactive Status.

(1) Revocation for Noncompliance. The BLSE can revoke board

certified inactive status if the member fails to comply with the policies or as

provided under policy 2.15. On revocation, the member cannot use the phrase

“board certified inactive.” Unless and until the member is reactivated to board

certified status, the member cannot use the phrase “board certified,” or any other

term permitted for use by board certified lawyers in the Rules Regulating The

Florida Bar. If revocation is considered, the same notice and hearing provisions set

forth in BLSE policy 2.15(d) apply.

(2) Relinquishment. A board certified inactive member must notify

the BLSE in writing within 90 days if the member no longer qualifies for, or

desires to retain, inactive status. The member must cease to use the phrase “board

- 53 -

certified inactive” and must immediately apply for reactivation of board

certification or relinquish board certification.

(e) Reactivation to Board Certified Status and Recertification.

(1) Reactivation Requirements. If the member no longer qualifies

for, or desires to retain, board certified inactive status, the member may apply for

reactivation of board certification within 90 days. The member must demonstrate

compliance with the continuing legal education requirement for the applicable

practice area, unless otherwise exempt under the policies, be a member in good

standing with The Florida Bar who is eligible to practice law in Florida, and

otherwise comply with the applicable rules and policies governing board

certification. On review that the requirements have been satisfied, board

certification will be reactivated.

(2) Reactivation Fee. Members who apply for reactivation of

board certification must pay a fee equal to one-half of the fee required to apply for

recertification.

(3) Recertification after Reactivation. On reactivation, the member

must apply for recertification by the application filing deadline consistent with the

member’s 5-year certification cycle. The requirements for recertification may be

prorated by the relevant area certification committee if approved by the BLSE.

6-31 STANDARDS FOR BOARD CERTIFICATION IN INTERNATIONAL

LITIGATION AND ARBITRATION

RULE 6-31.1 GENERALLY

A lawyer who is a member in good standing of The Florida Bar, eligible to

practice law in Florida, and meets the standards prescribed below may be issued a

certificate identifying the lawyer as “Board Certified in International Litigation and

Arbitration.” The purpose of the standards is to identify those lawyers who have

the special knowledge, skills, and proficiency, as well as the character, ethics, and

reputation for professionalism, to be properly identified to the public as board

certified in international litigation and arbitration.

RULE 6-31.2 DEFINITIONS

- 54 -

(a) International Litigation and Arbitration. “International litigation

and arbitration” is the practice of law dealing with disputes in court or arbitration

arising from the relations between or among states and international organizations

as well as the relations between or among nationals of different states, or between a

state and a national of another state. The term “international litigation and

arbitration” includes foreign and comparative law.

(b) Practice of Law. The “practice of law” for this area is defined as set

out in rule 6-3.5(c)(1). Practice of law that otherwise satisfies these requirements

but that is on a part-time basis will satisfy the requirement if the balance of the

applicant’s qualifying activity is spent as a teacher of international litigation and

arbitration subjects in an accredited law school.

The international litigation and arbitration certification committee will consist of 9

members. The international litigation and arbitration committee members will

initially be appointed according to the criteria set forth in rule 6-3.2(a).

RULE 6-31.3 MINIMUM STANDARDS

The applicant must demonstrate the following on a form approved by the

committee, which may require additional written or oral supplementation.

(a) Minimum Period of Practice. The applicant must have engaged in

the practice of law, either in the United States or abroad, and must have been a

member in good standing and eligible to practice law in their jurisdiction not less

than 5 years as of the date of application. The years of law practice need not be

consecutive. Receipt of an LL.M degree in international law, as defined in rule 6-

21.2(a), or in another field, may be approved by the international litigation and

arbitration certification committee to constitute 1 year of the practice of law

requirement, but not the 5-year bar membership requirement, specified in this

subdivision.

(b) Substantial Involvement. The applicant must demonstrate substantial

involvement in the practice of international litigation and/or arbitration during each

of the 3 years immediately preceding the date of application. The applicant must

have substantial involvement in contested international litigation and arbitration

cases sufficient to demonstrate special competence as an international litigation

and arbitration lawyer. Substantial involvement includes active participation in

- 55 -

client interviewing, counseling and investigating, preparation of pleadings and

arbitration submissions, participation in discovery, taking of testimony,

presentation of evidence, negotiation of settlement, drafting and preparation of

settlement agreements, and argument and trial of international cases in court or

before an arbitral panel, or service as an arbitrator. For purposes of this section,

time devoted to lecturing on or writing about international litigation and arbitration

may be included.

substantial involvement in a minimum of 16 contested international litigation and

arbitration matters during the 8-year period immediately preceding application.

These matters must have proceeded at least to the filing of a complaint or similar

preceding, statement of claim, or demand for arbitration, and involve substantial

legal or factual issues. At least 5 of the 16 matters must have been submitted to the

trier of fact for resolution of 1 or more contested factual issues through the

presentation of live testimony or other evidence at a hearing. The trier of fact

includes any judge or jury of a court of general jurisdiction, an arbitration panel,

administrative agency, bankruptcy court, or other similar body. “Submission to the

trier of fact” requires completion of the case in chief of the plaintiff, petitioner, or

claimant, or the actual submission of a motion for summary judgement or the

response to that motion. The international litigation and arbitration certification

committee may consider involvement in protracted adversary proceedings to

satisfy any of these requirements. A “protracted adversary proceeding” is an

international litigation and arbitration matter that is so time consuming it precludes

the applicant from meeting the requirements of this subdivision.

In order to demonstrate compliance with the requirements of this section, the

following criteria will be applicable:

(1) summary judgments may not count for more than 3 of the 5

contested matters submitted to the trier of fact;

(2) submission to the trier of fact, other than as to summary

judgment, requires completion of the case in chief of the plaintiff, petitioner, or

claimant, or the equivalent in arbitration;

(3) each preliminary injunction or other evidentiary hearing will

count as 1 of the 5 matters submitted to the trier of fact; and

- 56 -

(4) each matter in which the applicant supervises an associate will

qualify the matter as 1 of the 16, but not as 1 of the 5 matters submitted to the trier

of fact.

(d) Education. The applicant must demonstrate that during the 5-year

period immediately preceding the date of application, the applicant has completed

at least 50 hours of continuing legal education in the field of international litigation

and arbitration according to the policies established by the committee or the board

of legal specialization and education. This requirement can be met through the

following activities to the extent that they are focused on international litigation

and arbitration:

(1) attendance at continuing legal education seminars;

(2) satisfactory completion of graduate-level law school courses

while enrolled in an LL.M program in international law or comparative law;

(3) satisfactory completion of graduate-level law school courses

involving international law aspects while enrolled in a graduate law program;

(4) lecturing at continuing legal education seminars;

(5) authoring articles on books or teaching courses at an accredited

law school.

(e) Peer Review. The applicant must submit the names and addresses of 5

lawyers or judges who are neither relatives nor current associates or partners of the

applicant to attest to the applicant’s substantial involvement, practical experience,

and special competence in international litigation and/or arbitration, as well as the

applicant’s character, ethics, and reputation for professionalism. The international

litigation and arbitration certification committee may send reference forms to other

lawyers and judges.

(f) Examination. The applicant must pass an examination administered

uniformly to all applicants to demonstrate sufficient knowledge, skills, and

proficiency in international litigation and arbitration to justify the representation of

special competence to the legal profession and the public.

(g) Exemption. An applicant who has been substantially involved in

international litigation and arbitration for a minimum of 20 years and who

otherwise fulfills the standards set forth in rule 6-3.5(d) and this subchapter is

exempt from the examination. This exemption is applicable only to those

- 57 -

applicants who apply within the first 2 application filing periods from the effective

date of these standards.

RULE 6-31.4 INTERNATIONAL LITIGATION AND ARBITRATION

RECERTIFICATION

During the 5-year period immediately preceding the date of application for

recertification, the applicant must satisfy the following requirements for

recertification:

(a) Substantial Involvement. The applicant must demonstrate continuous

and substantial involvement in the practice of international litigation and

arbitration since the last date of certification or recertification. The demonstration

of substantial involvement must be made in accordance with the standards set forth

in this subchapter.

(b) Matters. The applicant must have had substantial involvement in a

minimum of 10 contested international litigation and arbitration matters during the

5-year period immediately preceding reapplication. These matters must have

proceeded at least to the filing of a complaint or similar pleading, statement of

claim, or demand for arbitration, and involve substantial legal or factual issues. At

least 3 of the 10 matters must have been submitted to the trier of fact for resolution

of 1 or more contested factual issues through the presentation of live testimony or

other evidence at a hearing. The trier of fact includes any judge or jury of a court

of general jurisdiction, and arbitration panel, administrative agency, bankruptcy

court, or other similar body. “Submission to the trier of fact” requires completion

of the case in chief of the plaintiff, petitioner, or claimant, or the actual submission

of a motion for summary judgement or response to that motion. The international

litigation and arbitration certification committee may consider involvement in

protracted adversary proceedings to satisfy any of these requirements for good

cause shown. A “protracted adversary proceeding” is an international litigation and

arbitration matter that is so time consuming it precludes the applicant from meeting

the requirements of this subdivision.

The applicant must demonstrate compliance on a form approved by the

committee using the following criteria:

(1) summary judgments may not count as more than 1 of the 3 matters

submitted to the trier of fact;

- 58 -

(2) submission to the trier of fact, other than as to summary judgment,

requires completion of the case in chief of the plaintiff, petitioner, or claimant, or

the equivalent in arbitration;

(3) each preliminary injunction or other evidentiary hearing will count

as 1 of the 3 matters submitted to the trier of fact; and

(4) each matter in which the applicant supervises an associate will

qualify as 1 of the 10, but not as 1 of the 3, matters submitted to the trier of fact.

of approved continuing legal education in international litigation and arbitration

since the filing of the last application for certification as provided in this

subchapter.

(d) Peer Review. The applicant must submit the names and addresses of 5

other lawyers or judges who are familiar with the applicant’s practice, excluding

individuals who currently are employed by the same employer as the applicant, and

who can attest to the applicant’s special competence and substantial involvement in

international litigation and arbitration, as well as the applicant’s character, ethics,

and reputation for professionalism. The international litigation and arbitration

certification committee may send reference forms to other lawyers and judges.

RULE 10-2.1 GENERALLY

Whenever used in these rules the following words or terms shall have the

following meaning herein set forth unless the use thereof shall clearly indicateof

the word or term clearly indicates a different meaning:

(a) Unlicensed Practice of Law. The unlicensed practice of law shall

meanmeans the practice of law, as prohibited by statute, court rule, and case law of

the state of Florida.

(b) Paralegal or Legal Assistant. A paralegal or legal assistant is a

person qualified by education, training, or work experience, who works under the

supervision of a member of The Florida Bar, an out-of-state lawyer engaged in the

authorized practice of law in Florida or a foreign lawyer engaged in the authorized

practice of law in Florida and who performs specifically delegated substantive

legal work for which a member of The Florida Barthe supervising lawyer is

responsible. A nonlawyer or a group of nonlawyers may not offer legal services

- 59 -

directly to the public by employing a lawyer to provide the lawyer supervision

required under this rule. It shall constituteconstitutes the unlicensed practice of

law for a person who does not meet the definition of paralegal or legal assistant to

use the title paralegal, legal assistant, or other similar term in offering to provide or

in providing services directly to the public.

nonlawyer or nonattorney is an individual who is not a member of The Florida Bar.

This includes, but is not limited to, lawyers admitted in other jurisdictions, law

students, law graduates, applicants to The Florida Bar, disbarred lawyers, and

lawyers who have resigned from The Florida Bar. A suspended lawyer, while a

member of The Florida Bar during the period of suspension as provided elsewhere

in these rules, does not have the privilege of practicing law in Florida during the

period of suspension. For purposes of this chapter, it shall constituteconstitutes the

unlicensed practice of law for a lawyer admitted in a jurisdiction other than Florida

to advertise to provide legal services in Florida which the lawyer is not authorized

to provide.

(d) This Court or the Court. This court or the court shall meanmeans the

Supreme Court of Florida.

(e) Bar Counsel. Bar counsel is a member of The Florida Bar

representing The Florida Bar in any proceeding under these rules and includes

UPL counsel and UPL staff counsel.

(f) – (l) [No Change]

(m) Designated Reviewer. The designated reviewer is a member of the

board of governors responsible for review and other specific duties as assigned by

the board of governors with respect to a particular circuit committee or matter. If a

designated reviewer recuses or is unavailable, any other board member may serve

as designated reviewer in that matter. The designated reviewer will be selected,

from time to time, by the board members from the circuit of suchthat circuit

committee. If circuits have an unequal number of circuit committees and board

members, review responsibility will be reassigned, from time to time, to equalize

workloads. On such reassignments, responsibility for all pending cases from a

particular committee passes to the new designated reviewer. UPL staff counsel

will be given written notice of changes in the designated reviewing members for a

particular committee.

- 60 -

(n) Executive Committee. The executive committee is the executive

committee of the Board of Governors of The Florida Bar. All acts and discretion

required by the board under these rules may be exercised by its executive

committee between meetings of the board as may from time to time be authorized

by standing policies of the board of governors.

RULE 10-3.2 DUTIES OF THE STANDING COMMITTEE

It shall beis the duty of the standing committee to receive and evaluate

circuit committee reports and to determine whether litigation should be instituted

in the court against any alleged offender. The standing committee may approve

civil injunctive proceedings, indirect criminal contempt proceedings, or a

combination of both, or such other action as may be appropriate. In addition, the

duties of the standing committee shall include, but are not be limited to:

(a) [No Change]

(b) the supervision of the circuit committees, which shall includeincludes,

but is not be limited to:

(1) – (4) [No Change]

(5) exercising final authority to accept a cease and desist affidavit in

cases proposed to be resolved by cease and desist affidavit where UPL counsel or

bar counsel objects to the acceptance of a cease and desist affidavit; and

(6) [No Change]

(7) exercising final authority to accept a cease and desist affidavit

with restitution to the complainant(s) in cases proposed by the circuit committee to

be resolved by a cease and desist affidavit that includes restitution;

(78) joining with a circuit committee in a particular investigation;

(89) assigning staff investigators and bar counsel to conduct

investigations on behalf of or in concert with the circuit committees; and

(910) suspending circuit committee members and chairs for cause and

appointing a temporary circuit committee chair where there has been a suspension,

resignation, or removal, pending the appointment of a permanent chair by the

board of governors;

- 61 -

responsibility to bar counsel to prosecute suchthe litigation;

(d) the giving of advice regarding the unlicensed practice of law policy to

the officers, board of governors, staff, sections, or committees of The Florida Bar

as requested; and

(e) [No Change]

RULE 10-4.1 GENERALLY

(a) Appointment and Terms. Each circuit committee shallwill be

appointed by the court on advice of the board of governors and shallwill consist of

not fewer than 3 members, at least one-third of whom shallwill be nonlawyers. All

appointees shallmust be residents of the circuit or have their principal office in the

circuit. The terms of the members of circuit committees shall be forare 3 years

from the date of appointment by the court or until such time as their successors are

appointed and qualified. Continuous service of a member shallmay not exceed 2

consecutive 3-year terms. A member shallmay not be reappointed for a period of 1

year after the end of the member’s second term provided, however, the expiration

of the term of any member shallwill not disqualify that member from concluding

any investigations pending before that member. Any member of a circuit

committee may be removed from office by the board of governors.

(b) Committee Chair. For eEach circuit committee there shall bewill

have a chair designated by the designated reviewer of that committee. A vice-chair

and secretary may be designated by the chair of each circuit committee. The chair

shallmust be a member of The Florida Bar.

members, whichever is less, shall constitute a quorum.

(d) Panels. The circuit committee may be divided into panels of not fewer

than 3 members, 1 of whom must be a nonlawyer. Division of the circuit

committee into panels shallwill only be upon concurrence of the designated

reviewer and the chair of the circuit committee. The 3-member panel shallwill

elect 1 of its members to preside over the panel’s actions. If the chair or vice-chair

of the circuit committee is a member of a 3-member panel, the chair or vice-chair

shallmust be the presiding officer.

- 62 -

(e) Duties. It shall beis the duty of each circuit committee to investigate,

with dispatch, all reports of unlicensed practice of law and to make prompt report

of its investigation and findings to bar counsel. In addition, the duties of the circuit

committee shall include, but are not be limited to:

(1) [No Change]

(2) exercising final authority to close a case with the acceptance of

a letter of advice except those cases to which UPL staff counsel objects to the

closing of the case with a letter of advice;

(23) exercising final authority to close cases proposed to be resolved

by cease and desist affidavit except those cases to which UPL staff counsel objects

to the acceptance of a cease and desist affidavit;

(34) forwarding to bar counsel for review by the standing committee

recommendations for closing cases by a cease and desist affidavit that includes a

monetary penalty not to exceed $500 per incident; and

(5) forwarding to bar counsel for review by the standing committee

recommendations for closing cases by a cease and desist affidavit that includes

restitution to the complainant(s); and

(4)(6) forwarding to UPL staff counsel recommendations for litigation

to be reviewed by the standing committee.

(f) [No Change]

(g) Recusal. NoA member of a circuit committee shallmay not perform

any circuit committee function when that member:

(1) – (4) [No Change]

UponOn notice of any of the above prohibitions the affected members

should recuse themselves from further proceedings. The circuit committee chair

shall havehas the power to disqualify any member from any proceeding in which

any of the above prohibitions exists and is stated of record or in writing in the file

by the chair.

- 63 -

RULE 10-5.2 DISQUALIFICATION AS ATTORNEYLAWYER FOR

RESPONDENT DUE TO CONFLICT

(a) Members of the Standing Committee on UPL (Standing

Committee), Members of the Circuit UPL Committees (Circuit Committees),

Members of the Board of Governors, and Employees of The Florida Bar. No

member of the standing committee, member of a circuit committee, member of the

Board of Governors of The Florida Bar, or employee of The Florida Bar shall

represent a party other than The Florida Bar in UPL proceedings authorized under

these rules.

(b) Former Members of the Standing Committee, Former Members of

the Circuit Committees, Former Board Members, and Former Employees.

No former member of the standing committee, former member of a circuit

committee, former member of the board of governors, or former employee of The

Florida Bar shall represent any party other than The Florida Bar in UPL

proceedings authorized under these rules if personally involved to any degree in

the matter while a member of the standing committee, circuit committee, board of

governors, or while an employee of The Florida Bar.

A former member of the standing committee, former member of a circuit

committee, former member of the board of governors, or former employee of The

Florida Bar who did not participate personally in any way in the matter or in any

related matter in which the attorney seeks to be a representative, and who did not

serve in a supervisory capacity over such matter, shall not represent any party

except The Florida Bar for 1 year after such service without the express consent of

the board.

Standing Committee Members, Circuit Committee Members, or Board of

Governors Members Precluded From Representing Parties Other Than The

Florida Bar. Members of the firms of board of governors members, standing

committeee members, or circuit committee members shall not represent any party

other than The Florida Bar in UPL proceedings authorized under these rules

without the express consent of the board.

(d) Partners, Associates, Employers, or Employees of the Firms of

Former Standing Committee Members, Former Circuit Committee Members,

or Former Board of Governors Members Precluded From Representing

- 64 -

Parties Other Than The Florida Bar. Attorneys in the firms of former board of

governors members, former standing committee members, or former circuit

committee members shall not represent any party other than The Florida Bar in

UPL proceedings authorized under these rules for 1 year after the former member's

service without the express consent of the board.

(a) Representation Prohibited. Lawyers may not represent a party other

than The Florida Bar in unlicensed practice of law proceedings authorized by these

rules if they are:

(1) currently serving on the standing committee, a circuit

committee, or the board;

(2) employees of The Florida Bar; or

(3) former members of the standing committee, a circuit

committee, the board and former employees of The Florida Bar if personally

involved to any degree in the matter while a member of the standing committee, a

circuit committee, the board or while an employee of The Florida Bar.

(b) Representation Permitted With Consent by the Board of

Governors. Lawyers may represent a party other than The Florida Bar in

unlicensed practice of law proceedings authorized by these rules only after

receiving consent from the executive director or board of governors if they are:

(1) former members of the standing committee, a circuit

committee, the board, or former employees of The Florida Bar who did not

participate personally in any way in the matter or in any related matter in which the

lawyer seeks to be a representative, and who did not serve in a supervisory

capacity over the matter within 1 year of the service or employment;

(2) a partner, associate, employer, or employee of a member of the

standing committee, a circuit committee, or the board; or

(3) a partner, associate, employer, or employee of a former member

of the standing committee, a circuit committee, or the board within 1 year of the

former member’s service on the committee or board.

- 65 -

RULE 10-6.3 RECOMMENDATIONS AND DISPOSITION OF

COMPLAINTS

(a) Circuit Committee Action. UponOn concluding its investigation, the

circuit committee shallwill report to bar counsel regarding the disposition of those

cases closed, those cases where a letter of advice has been given, those cases where

a cease and desist affidavit has been accepted, those cases where a cease and desist

affidavit with monetary penalty has been recommended, and those cases where

litigation is recommended. A majority of those present is required for all circuit

committee recommendations; however, the vote may be taken by mail or telephone

rather than at a formal meeting. All recommendations for a cease and desist

affidavit with monetary penalty shallmust be reviewed by the standing committee

for final approval. All recommendations for litigation under these rules shallmust

be reviewed by the standing committee and a designated reviewer for final

approval prior to initiating litigation.

(b) Action by Bar Counsel Objection to Action of Circuit Committee.

Bar counsel shall review the disposition reports of the circuit committee. If bar

counsel objects to any action taken by the circuit committee, bar counsel shall

forward such objection to the circuit committee within 10 days of receipt of the

circuit committee report. Bar counsel shall place the action and objection the

action and objection will be placed before the standing committee for review at its

next scheduled meeting for a. The standing committee shall review the circuit

committee action and the objection, and shall vote on the final disposition of the

case. Once a case is closed or a cease and desist affidavit is accepted by the circuit

committee or by the standing committee, bar counsel shall inform the complainant

and, if contacted, the respondent of the disposition of the complaintBar counsel

will inform the complainant of the complaint’s disposition. Bar counsel will notify

a respondent of the complaint’s disposition if the bar has contacted the respondent

about the complaint.

reviewAll recommendations by the standing committee that litigation be initiated

must be reviewed by a designated reviewer. TheIf the designated reviewer

shalldoes not act on the recommendation within 21 days following the mailing date

of the notice of standing committee action, otherwise the standing committee

action shallwill become final. If the designated reviewer disagrees with all or any

part of the recommendation for litigation, the designated reviewer shallwill make a

report and recommendation to the board of governors and the board will make a

final determination regarding the litigation.

- 66 -

RULE 10-9.1 PROCEDURES FOR ISSUANCE OF ADVISORY

OPINIONS ON THE UNLICENSED PRACTICE OF LAW

(a) Definitions.

(1) Committee. The committee is the standing committee on UPL as

constituted according to the directives contained in these rules.

(2) Petitioner. An petitioner is an individual or organization seeking

guidance as to the applicability, in a hypothetical situation, of the state’s

prohibitions against the unlicensed practice of law.

(3) Public Notice. PublicationPublic notice is publication in a

newspaper of general circulation in the county in which the hearing will be held

and in The Florida Bar NewsNews.

(4) Court. The court is the Supreme Court of Florida (or suchany

other court in the state of Florida as the supreme court may designate).

(b) Requests for Advisory Opinions. A petitioner requesting a formal

advisory opinion concerning activities that may constitute the unlicensed practice

of law shall do so by sending the request in writing addressed to The UPL

Department, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida

32399-2300. The request for an advisory opinion shall state in detail to the extent

practicable the operative facts upon which the request for opinion is based and

contain the name and address of the petitioner.A petitioner may request a formal

advisory opinion concerning activity that may constitute the unlicensed practice of

law by sending a question to The Florida Bar’s UPL Department at the bar’s

headquarters address in Tallahassee. The question must be in writing, state all

operative facts, and ask whether the activity constitutes the unlicensed practice of

law. The request shallwill be reviewed by UPL staff counsel. If the request

complies with the requirements of thethis rule as stated herein, the request will be

placed on the agenda for the next scheduled meeting of the committee. At that

meeting, the committee will determine whether to accept the request, such

determination beingwhich is within the discretion of the committee. ShouldIf the

committee accepts the request, a public hearing as provided in rule 10-9.1(f)

shallelsewhere in this rule will be scheduled.

rendered with respect to any case or controversy pending in any court or tribunal in

- 67 -

this jurisdiction or any matter currently the subject of an unlicensed practice of law

or grievance investigation by The Florida Barand no informal opinion shall be

issued except as provided in rule 10-9.1(g)(1). However, the committee shallwill

hold a public hearing and issue a proposed formal advisory opinion under

circumstances described by the court in Harold Goldberg v. Merrill Lynch Credit

Corporation Corp., 35 So. 3d 905 (Fla. 2010), when the petitioner is a party to a

lawsuit and that suit has been stayed or dismissed without prejudice. No informal

advisory opinion will be issued except as provided elsewhere in these rules.

(d) Services of Voluntary Counsel. The committee shall be empowered

tomay request and accept the voluntary services of a person licensed to practice in

this state when the committee deems it advisable to receive written or oral advice

regarding the question presented by the petitioner.

(e) Conflict of Interest. Committee members shallwill not participate in

any matter in which they have either a material pecuniary interest that would be

affected by a proposedan advisory opinion or committee recommendation or any

other conflict of interest that should prevent them from participating. However, no

action of the committee will be invalid where full disclosure has been made and

the committee has not decided that the member’s participation was improper.

(f) Notice, Appearance, and Service.

(1) At least 30 days in advance of the committee meeting at which a

hearing is to be held with respect to a potential advisory opinion, the committee

shallmust give public notice of the date, time, and place of the hearing, provide a

general description of the subject matter of the request and the bar website and

address where a full copy of the question presented can be obtained, and invite

written comments on the question. On the announced date the committee shallwill

hold a public hearing at which any person affected shall be entitled tomay present

oral testimony and be represented by counsel. Oral testimony by other persons

may be allowed by the committee at its discretion. At the time of or prior to the

hearing any other person shall be entitled tomay file written testimony on the issue

before the committee. Additional procedures not inconsistent with this rule may be

adopted by the committee.

(2) The committee shallAfter the hearing the committee will vote

whether to issue either a written proposed advisory opinion, a letter that declines to

issue an opinion, or an informal opinion as provided in rule 10-9.1(g)(1)elsewhere

in this rule. No other form of communication shall beis deemed to be an advisory

opinion.

- 68 -

(3) A proposed advisory opinion shallmust be in writing and shall

bear a date of issuance. The proposed opinion shall prominently bear a title

indicatingcover page of the advisory opinion will state that it is a proposed

advisory opinion, and a disclaimer stating that it is only an interpretation of the law

and does not constitute final court action. The committee shallwill arrange for the

publication of notice of filing the proposed advisory opinion andwith a summary

thereof in The Florida Bar NewsNews within a reasonable time. Interested parties

shallwill be furnished a copy of the full opinion upon request.

(g) Service and Judicial Review of Proposed Advisory Opinions.

(1) In the case of any proposed advisory opinion in which the

standing committee concludes that the conduct in question is not the unlicensed

practice of law, it shallwill decide, by a vote of a majority of the committee

members present, either to publish the advisory opinion as provided in rule 10-

9.1(f)(3)elsewhere in this rule as an informal advisory opinion, or to file a copy of

the opinion with the court as provided in rule 10-9.1(g)(2).

(2) In the case of any proposed advisory opinion in which the

standing committee concludes that the conduct in question constitutes or would

constitute the unlicensed practice of law, the committee shallmust file a copy of the

opinion and all materials considered by the committee in adopting the opinion with

the clerk of the court. The proposed advisory opinion, together withand the notice

of the filing thereof, shallwill be furnished by certified mail to the petitioner.

(3) Within 30 days of the filing of the proposed advisory opinion, the

petitioner and any other interested party may file objections and a brief or

memorandum in support thereof, copies of which shall be servedin response to the

proposed advisory opinion, copies of which must be served on the committee at the

Florida Bar’s headquarters address in Tallahassee. Any other interested person

may, within 30 days of the filing of the opinion, seek leave of the court to file and

serve a brief, whether in support of or in opposition to the opinion, in accordance

with this same procedure. The committee may file a responsive brief or

memorandum within 20 days of service of the initial brief or memorandum. The

petitioner, as well asand other interested persons having leave of court, may file a

reply brief or memorandum within 10 days of service of the responsive brief or

memorandum. At its discretion, the court shallThe court may permit reasonable

extension of these time periods. Oral argument will be allowed at the court’s

discretion. TheFiling, service, and oral argument will be governed by the Florida

Rules of Appellate Procedure shall otherwise govern the above methods of filing,

service, and argument.

- 69 -

(4) Upon the expiration of the time to file objections, briefs, and

replies thereto, the court shall review the advisory opinion, regardless of whether

any such objections are in fact made, together with any briefs or objections filed in

support of or in opposition to such opinion. Upon review, it shall The court will

review all filings after which the court will approve, modify, or disapprove the

proposed advisory opinion, and the ensuing . The court’s opinion shallwill have

the force and effect of an order of the court and be published accordingly. There

shallwill be no further review of the opinion except as granted by the court in its

discretion, upon petition to the court.

CHAPTER 12 EMERITUS ATTORNEYSLAWYERS PRO BONO

PARTICIPATION PROGRAM

12-1 GENERALLY

RULE 12-1.1 PURPOSE

Individuals admitted to the practice of law in Florida have a responsibility to

provide competent legal services for all persons, including those unable to pay for

suchthese services. As one means of meeting these legal needs, the following rules

establishing theThe emeritus attorneyslawyers pro bono participation program are

adoptedis one means of meeting these legal needs.

RULE 12-1.2 DEFINITIONS

(a) Emeritus AttorneyLawyer. An “emeritus attorneylawyer” is any

person, who meets the following eligibility and requirements.

(1) Eligibility. An emeritus lawyer must be a person who:

(A) is a member of The Florida Bar who is inactive or retired

from the active practice of law in Florida;

(B) is an inactive or retired member of the bar of or any other

state or territory of the United States or the District of Columbia, or is an

authorized house counsel certified by the Supreme Court of Florida and who:;

territory of the United States or the District of Columbia;

- 70 -

(D) is or was a full-time law professor employed by a law

school accredited by the American Bar Association; or

(E) is an authorized house counsel certified by the Supreme

Court of Florida under chapter 17 of these rules.

(2) Requirements. All emeritus lawyers must meet the following

requirements:

(A) not be currently engaged in the practice of law in Florida

or elsewhere except for authorized house counsel certified by the Supreme Court

of Florida under chapter 17 of these rules;

(1B) washave been engaged in the active practice of law for a

minimum of 10 out of the 15 years immediately preceding the application to

participate in the emeritus program, except that this requirement does not apply

tofor authorized house counsel certified by the Supreme Court of Florida under

chapter 17 of these rules;

(2C) washave been a member in good standing of The Florida

Bar or the entity governing the practice of law of any other state, territory, or the

District of Columbia and hashave not been disciplined for professional misconduct

by the bar or courts of any jurisdiction within the past 15 years;

(3D) if not a retired member of The Florida Bar, hashave not

failed the Florida bar examination 3 or more times except for an inactive or retired

member of The Florida Bar;

(4E) agrees to abide by the Rules of Professional Conduct and

submit to the jurisdiction of the Supreme Court of Florida for disciplinary

purposes;

(5F) neither asks for nor receives compensation of any kind for

the legal services to be rendered under this rule; and

(6G) isbe certified under rule 12-1.5.

(b) Approved Legal Aid Organization. An “approved legal aid

organization” for the purposes of this chapter is a not-for-profit legal aid

organization that is approved by the Supreme Court of Florida. A legal aid

organization seeking approval must file a petition with the clerk of the Supreme

- 71 -

Court of Florida certifying that it is a not-for-profit organization and reciting with

specificity:

(1) – (5) [No Change]

(6) the existence and extent of malpractice insurance that will cover

the emeritus attorneylawyer.

in this chapter is a member in good standing of The Florida Bar who directs and

supervises an emeritus attorneylawyer engaged in activities permitted by this

chapter. The supervising attorneylawyer must:

(1) [No Change]

(2) assume personal professional responsibility consistent with the

requirements of rule 4-5.1 of the Rules Regulating The Florida Bar for supervising

the conduct of the matter, litigation, or administrative proceeding in which the

emeritus attorneylawyer participates.

(d) Inactive. “Inactive” as used in this chapter refers to a lawyer who

voluntarily elects to be placed on inactive status and was not placed on inactive

status due to incapacity or discipline, or who is ineligible to practice law for failure

to pay bar fees or complete continuing legal education requirements.

(e) Active Practice of Law. The “active practice of law” as used in this

chapter includes, but is not limited to, private practice, working as an authorized

house counsel, public employment including service as a judge, and full time

employment as a law professor at or by an American Bar Association-accredited

law school.

RULE 12-1.3 ACTIVITIES

(a) Permissible Activities. An emeritus attorneylawyer, in association with

an approved legal aid organization and under the supervision of a supervising

attorneylawyer, may perform the following activities:

(1) The emeritus attorneylawyer may appear and proceed in any court

or before any administrative tribunal in this state on behalf of a client of an

approved legal aid organization if the person on whose behalf the emeritus

- 72 -

attorneylawyer is appearing has consented in writing to that appearance and

representation and a supervising attorneylawyer has given written approval for that

appearance. The written consent and approval must be filed in the record of each

case and brought to the attention of a judge of the court or the presiding officer of

the administrative tribunal.

(2) The emeritus attorneylawyer may prepare, sign, and file pleadings

and other documents to be filed in any court or before any administrative tribunal

in this state in any matter in which the emeritus attorneylawyer is involved. The

supervising lawyer’s name and Florida Bar number must be included on each

pleading or paper filed or served by an emeritus lawyer, who must also be

identified as a certified emeritus lawyer on each pleading or paper must sign all

documents filed with the court. The supervising lawyer is not required to sign each

pleading or paper filed or served by an emeritus lawyer.

(3) The emeritus attorneylawyer may engage in such other

preparatory activities as are necessary for any matter in which the emeritus

attorneylawyer is involved, including participating in legal clinics sponsored or

provided by the emeritus lawyer’s legal aid organization, and providing advice and

assistance to, and drafting legal documents for, persons whose legal problems or

issues are not in litigation.

(b) Determination of Nature of Participation. The presiding judge or

hearing officer may, in the judge’s or officer’s discretion, determine the extent of

the emeritus attorney’slawyer’s participation in any proceedings before the court.

Comment

This rule recognizes that an emeritus lawyer may accept an appointment or

assignment from a state or federal judge seeking pro bono assistance for litigants or

persons appearing before the judge through a supervising legal aid organization,

including but not limited to: direct representation; limited representation; or service

as either an attorney ad litem or guardian ad litem. However, this rule applies to

civil legal assistance and recognizes that emeritus lawyers under this rule may not

provide representation and/or legal services in criminal law matters.

RULE 12-1.4 SUPERVISION AND LIMITATIONS

- 73

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.