# In RE: AMENDMENTS TO the RULES REGULATING THE FLORIDA BAR-BIENNIAL PETITION. > Supreme Court of Florida · January 4, 2019 · 267 So. 3d 891 URL: https://www.frixlaw.com/law-library/cases/4358652 ## Case - **Full name:** In Re: Amendments to the Rules Regulating the Florida Bar - Biennial Petition - **Court:** Supreme Court of Florida - **Decided:** January 4, 2019 - **Citations:** 267 So. 3d 891 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Per Curiam - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4358652 ## Opinion text Supreme Court of Florida ____________ No. SC18-1683 ____________ IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR—BIENNIAL PETITION. January 4, 2019 PER CURIAM. This matter is before the Court on the petition of The Florida Bar (Bar) proposing amendments to the Rules Regulating the Florida Bar (Bar Rules). We have jurisdiction. See art. V, § 15, Fla. Const. The Bar’s petition in this case proposes amendments to the following existing Bar Rules: 1-3.7 (Reinstatement to Membership); 2-3.11 (Quorum); 2-9.2 (Standing Board Policies); 2-9.4 (Ethics); 2-9.6 (Rules of Order); 2-9.7 (Insurance for Members of Board of Governors, Officers, Grievance Committee Members, UPL Committee Members, Clients’ Security Fund Committee Members, and Employees); 3-7.2 (Procedures upon Criminal or Professional Misconduct; Discipline upon Determination or Judgment of Guilt of Criminal Misconduct; Discipline on Removal from Judicial Office); 3-7.10 (Reinstatement and Readmission Procedures); 3-7.11 (General Rules of Procedure); 4-1.2 (Objectives and Scope of Representation); 4-1.5 (Fees and Costs for Legal Services); 4-1.10 (Imputation of Conflicts of Interest; General Rule); 4-1.19 (Collaborative Law Process in Family Law); 4-5.8 (Procedures for Lawyers Leaving Law Firms and Dissolution of Law Firms); 4-6.5 (Voluntary Pro Bono Plan); 4-8.3 (Reporting Professional Misconduct); 6-1.2 (Public Notice); 6-10.3 (Minimum Continuing Legal Education Standards); 14-6.1 (Binding Nature; Enforcement; and Effect of Failure to Pay Award); 14-7.1 (Immunity and Confidentiality); 18-1.2 (Definitions); 20-3.1 (Requirements for Registration); 20-5.2 (Duty to Update); 20- 6.1 (Generally); 20-8.3 (Complaint Processing); and 20-8.6 (Disposition of Complaints). Additionally, the Bar proposes deleting Bar Rules 2-9.8 (Practice Resource Institute) and 3-7.15 (Amendments) in their entirety because they are duplicative of subdivisions of other Bar Rules. The proposals were approved by the Board of Governors and formal notice of the proposed amendments was published in The Florida Bar News, which invited comments from interested parties. No comments were received. After having fully considered the Bar’s petition, we adopt most of the amendments as proposed by the Bar and delete rules 2-9.8 and 3-7.15 in their entirety, as proposed by the Bar. However, as discussed below, we decline to -2- adopt portions of the amendments proposed to rule 3-7.2, and we adopt modified amendments to rule 20-3.1. We discuss the more significant amendments below. First, we amend Bar Rule 1-3.7 to increase the required number of continuing legal education hours in subdivision (c) for retired or delinquent attorneys seeking reinstatement from ten to eleven hours for each year or partial year of retirement or delinquency. Subdivision (g)(2) is also amended to require inactive members who are seeking reinstatement to complete thirty-three hours of continuing legal education, rather than thirty hours. These changes are made following this Court’s opinion in In re Amendments to Rules Regulating the Florida Bar 4-1.1 & 6-10.3, 200 So. 3d 1225 (Fla. 2016), in which the three-year continuing legal education requirement was increased from thirty hours to thirty- three hours. Next, we amend Bar Rules 2-3.11, 2-9.2, and 2-9.6 to allow the Bar, and divisions thereof, to conduct electronic meetings. Specifically, Bar Rule 2-3.11 is renamed to “Electronic Meetings” and is rewritten to explicitly allow the Bar and divisions thereof to conduct electronic meetings. The title of Bar Rule 2-9.2 is amended to read “Adoption, Amendment, and Waiver of Standing Board Policies and Rules of Order,” and the text of the rule is amended to provide that in addition to standing board policies, the Board of Governors may adopt “special rules of order governing parliamentary procedures.” The text of Bar Rule 2-9.6 is amended -3- to provide that Robert’s Rules of Order is the parliamentary authority that governs meetings of the Bar to the extent that it does not conflict with any standing board policies or special rules of order; if there is a conflict, the standing board policies or special rules of order will control. We next amend Bar Rule 3-7.2 to make clear that it is an attorney’s duty to report pending criminal charges and any judgment thereon to the Bar. Several subdivisions throughout the rule are rewritten for readability and to make clear the duties imposed by the rule, and upon whom those duties are imposed. However, we decline to adopt the Bar’s proposed amendment to subdivision (f) that would make discretionary the Bar’s now-mandatory duty to file a Notice of Determination or Judgment of Guilt with the Court upon discovery that an attorney has been adjudicated guilty of a felony. Although the Bar expresses concern over having no discretion in cases involving a finding of guilt of a felony that requires no intent because the rule provides for the automatic interim suspension of the attorney, we find that the seriousness of having been found guilty of a felony offense militates in favor of this Court retaining the ability to review the circumstances surrounding the finding of guilt. Accordingly, we decline to adopt the Bar’s proposed amendment in this regard. We note, however, that any concern that a sanction resulting from having been found guilty of a felony offense that requires no intent will be too severe is addressed by the procedures already present -4- in the rule; subdivision (h) provides that the matter will be referred to a referee who can make a recommendation to the Court as to the appropriate sanction for the attorney’s conduct, which the Court considers in imposing the final discipline. We next amend subdivision (f)(4)(B) of Bar Rule 3-7.10 to make clear that attorneys seeking reinstatement that are required under that subdivision to complete the Florida bar examination or a portion thereof must have proof of having passed the required portions of the examination prior to filing a petition for reinstatement under that rule. Additionally, we amend subdivision (h) within Bar Rule 4-1.5 to replace the provision that “[n]o higher fee shall be charged and no additional charge shall be imposed by reason of a lawyer’s or law firm’s participation in a credit plan” with a statement that “[l]awyers may charge clients the actual charge the credit plan imposes on the lawyer for the client’s transaction.” By so doing, we hereby allow lawyers to pass on the actual costs resulting directly from a client’s choice to pay a bill or invoice with a credit card, or make payments under a credit plan, to that client. We next amend Bar Rule 6-10.3 to require that one of the five credit hours of continuing legal education per three-year reporting cycle that is required to concern legal ethics, professionalism, bias elimination, substance abuse, or mental illness awareness must concern professionalism. Additionally, we amend the -5- definition of “supervising lawyer” contained in Bar Rule 18-1.2(c) to make clear that a supervising lawyer under that rule must be “eligible to practice law in Florida.” Next, we amend various rules governing the Florida Registered Paralegal Program. First, we amend Bar Rule 20-3.1 to create an additional category of individuals who may become Florida Registered Paralegals; however, we modify the language proposed by the Bar to create the category for those with “a juris doctorate degree from an American Bar Association accredited institution and membership in good standing with a state bar association other than Florida’s, with no minimum paralegal work experience.” We also amend Bar Rule 20-5.2 to provide that the Bar will notify a registered paralegal’s supervising or employing attorney of any changes to the paralegal’s registration status. Further, we amend Bar Rule 20-6.1 to increase the continuing education requirement for registered paralegals from thirty hours every reporting cycle to thirty-three hours, and requiring three of those hours to concern technology. Additionally, we increase the number of continuing education hours required for re-registering after resigning or having one’s registration revoked from ten hours to eleven. These increases are consistent with recent increases that we have made with regard to required continuing legal education requirements for lawyers. Last, we amend subdivision (e) of Bar Rule 20-8.3 to require a registered paralegal to notify the -6- supervising attorney if a complaint has been filed against the paralegal pursuant to that rule. Finally, we delete two rules in their entirety because they are duplicative of provisions found elsewhere in the rules. Bar Rule 2-9.8 is deleted as duplicative of Bar Rule 2-3.2(d)(7). Additionally, Bar Rule 3-7.15 is deleted as duplicative of Bar Rule 1-12.1(f). Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. 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 March 5, 2019. It is so ordered. CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur. NO MOTION FOR REHEARING WILL BE ALLOWED. Original Proceeding – Rules Regulating The Florida Bar Joshua E. Doyle, Executive Director, Michelle R. Suskauer, President, John Stewart, President-Elect, Lori S. Holcomb, Director, Division of Ethics and Consumer Protection, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida, for Petitioner -7- APPENDIX CHAPTER 1 GENERAL 1-3 MEMBERSHIP RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP (a) Eligibility for Reinstatement. Members who have retired or been delinquent for a period of time not in excess of 5 years are eligible for reinstatement under this rule. Time will be calculated from the day of the retirement or delinquency. Inactive members may also seek reinstatement under this rule. (b) Petitions Required. A member seeking reinstatement must file a petition with the executive director setting forth the reason for inactive status, retirement, or delinquency and showing good cause why the petition for reinstatement should be granted. The petitioner must include all required information on a form approved by the board of governors. The petition must be accompanied by a nonrefundable reinstatement fee of $150 and payment of all arrearages unless adjusted by the executive director with concurrence of the executive committee for good cause shown. Inactive members are not be required to pay the reinstatement fee. No member will be reinstated if, from the petition or from investigation conducted, the petitioner is not of good moral character and morally fit to practice law or if the member is delinquent with the continuing legal education or basic skills course requirements. If the executive director is in doubt as to approval of a petition, the executive director may refer the petition to the board of governors for its action. Action of the executive director or board of governors denying a petition for reinstatement may be reviewed on petition to the Supreme Court of Florida. (c) Members Who Have Retired or Been Delinquent for Less Than 5 Years, But More Than 3 Years. Members who have retired or been delinquent for less than 5 years, but more than 3 years, must complete 1011 hours of continuing legal education courses for each year or portion of a year that the member had retired or was deemed delinquent. (d) Members Who Have Retired or Been Delinquent for 5 Years or More. Members who have retired or have been deemed delinquent for a period of 5 years or longer will not be reinstated under this rule and must be readmitted upon application to the Florida Board of Bar Examiners and approval by the Supreme Court of Florida. -8- (e) Members Who Have Permanently Retired. Members who have permanently retired will not be reinstated under this rule. (f) Members Delinquent 60 Days or Less. Reinstatement from delinquency for payment of membership fees or completion of continuing legal education or basic skills course requirements approved within 60 days from the date of delinquency is effective on the last business day before the delinquency. Any member reinstated within the 60-day period is not subject to disciplinary sanction for practicing law in Florida during that time. (g) Inactive Members. Inactive members may be reinstated to active membership in good standing to become eligible to practice law in Florida by petition filed with the executive director, in the form and as provided in (b) above, except: (1) If the member has been inactive for greater than 5 years, has been authorized to practice law in another jurisdiction, and either actively practiced law in that jurisdiction or held a position that requires a license as a lawyer for the entire period of time, the member will be required to complete the Florida Law Update continuing legal education course as part of continuing legal education requirements. (2) If the member has been inactive for greater than 5 years and does not meet the requirements of subdivision (1), the member will be required to complete the basic skills course requirement and the 30-hour33-hour continuing legal education requirement. (3) An inactive member is not eligible for reinstatement until all applicable continuing legal education requirements have been completed and the remaining portion of membership fees for members in good standing for the current fiscal year have been paid. CHAPTER 2 BYLAWS OF THE FLORIDA BAR 2-3 BOARD OF GOVERNORS BYLAW 2-3.11 QUORUMELECTRONIC MEETINGS A majority of the members of the board of governors shall constitute a quorum for the transaction of business at all meetings.Electronic meetings are authorized for all meetings of The Florida Bar; its board of governors; the executive committee and committees of its board of governors; and its sections, divisions, and committees. Special rules of order pertaining to the conduct of electronic meetings may be adopted by the board of governors. -9- 2-9 POLICIES AND RULES BYLAW 2-9.2 ADOPTION, AMENDMENT, AND WAIVER OF STANDING BOARD POLICIES AND RULES OF ORDER The board of governors shallmay adopt standing board policies governing the internal administration and operation and special rules of order governing parliamentary procedures of The Florida Bar and the board of governors. The board of governors may adopt, amend, or rescind standing board policies and special rules of order by a majority vote of the membership of the board of governors provided any amendment to any standing board policy or special rules of order shallis not be effective until 30 days after adoption or another date specifically approved by the board of governors. Such standingStanding board policies and special rules of order may be adopted, rescinded, or amended by a majority vote of those present at any regular meeting of the board of governors provided advance written notice is given to the members of the board of governors of the proposed adoption, repeal, or amendment of any standing board policy or special rules of order. The provision of any standing board policy or special rule of order may be waived by a two-thirds vote of those present at any regular meeting of the board of governors. BYLAW 2-9.4 ETHICS (a) Rules of Procedure. The board of governors shall adopts rules of procedure governing the manner in which opinions on professional ethics may be solicited by members of The Florida Bar, issued by the staff of The Florida Bar or by the professional ethics committee, circulated or published by the staff of The Florida Bar or by the professional ethics committee, and appealed to the board of governors of The Florida Bar. (b) Amendment. The adoption of, repeal of, or amendment to the rules authorized by subdivision (a) shall beis effective only under the following circumstances: (1) The proposed rule, repealer, or amendment shall beis approved by a majority vote of the board of governors at any regular meeting of the board of governors. (2) The proposal thereafter shall beis published in The Florida Bar NewsNews at least 20 days preceding the next regular meeting of the board of governors. - 10 - (3) The proposal shall thereafter receives a majority vote of the board of governors at its meeting following publication as herein required. (c) Waiver. The rules of procedure adopted as required in subdivision (a) may be temporarily waived as to any particular matter only upon unanimous vote of those present at any regular meeting of the board of governors. (d) Confidentiality. Each advisory opinion issued by Florida Bar ethics counsel shallwill be identified as a "staff opinion" and shall be available for inspection or production. The names and any identifying information of any individuals mentioned in a staff opinion shallwill be deleted before the staff opinion is released to anyone other than the member of The Florida Bar making the original request for the advisory opinion. (e) Disqualification as AttorneyLawyer Due to Conflict. (1) Members of the Professional Ethics Committee (PEC), Members of the Board of Governors, and Employees of The Florida Bar. No member of the PEC, the board of governors, or employee of The Florida Bar shall represent a party other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized under these Rules Regulating The Florida Bar. (2) Former Members of the PEC, Former Board Members, and Former Employees. No former member of the PEC, former member of the board of governors, or former employee of The Florida Bar shall represent any party other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized under these rules if personally involved to any degree in the matter while a member of the PEC, a member of the board of governors, or an employee of The Florida Bar. A former member of the PEC, 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 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 in proceedings for the issuance of opinions on professional ethics authorized under these rules for 1 year after such service without the express consent of the board. (3) Partners, Associates, Employers, or Employees of the Firms of PEC Members or Board of Governors Members Precluded From Representing Parties Other Than The Florida Bar. Members of the firms of board of governors members or PEC members shall not represent any party other than - 11 - The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized under these rules without the express consent of the board. (4) Partners, Associates, Employers, or Employees of the Firms of Former PEC Members or Former Board of Governors Members Precluded From Representing Parties Other Than The Florida Bar. Attorneys in the firms of former board of governors members or former PEC members shall not represent any party other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized under these rules for 1 year after the former member's service without the express consent of the board. (1) Representation Prohibited. Lawyers may not represent any person or entity other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized by these rules if they are: (A) currently serving on the professional ethics committee or the board of governors; (B) employees of The Florida Bar; or (C) former members of the professional ethics committee, former members of the board of governors, or former employees of The Florida Bar if personally involved to any degree in the matter while a member of the professional ethics committee or the board of governors, or while an employee of The Florida Bar. (2) Representation Permitted With Consent by the Board of Governors. Lawyers may represent a person or entity other than The Florida Bar in proceedings for the issuance of opinions on professional ethics authorized by these rules only after receiving consent from the executive director or board of governors if they are: (A) former members of the professional ethics committee, former members of the board of governors, 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; (B) a partner, associate, employer, or employee of a member of the professional ethics committee or a member of the board of governors; or - 12 - (C) a partner, associate, employer, or employee of a former member of the professional ethics committee or a former member of the board of governors within 1 year of the former member’s service on the professional ethics committee or board of governors. (3) Participation in Issuance of Ethics Proceedings for Oneself. The disqualification under this rule does not prohibit lawyers described above from participating on their own behalf in proceedings for the issuance of opinions on professional ethics authorized by these rules and the Florida Bar Procedures for Ruling on Questions of Ethics. BYLAW 2-9.6 RULES OF ORDER The current edition of Robert's Rules of Order shall be the rules thatis the parliamentary authority that governs the conduct of all meetings of The Florida Bar, its board of governors, its sections, divisions, and committees, except for Robert's Rules of Order that are inconsistent with these bylaws and the bar's Special Rules of Order as set forth in the Standing Board Policies or in section or division bylaws. BYLAW 2-9.7 INSURANCE FOR MEMBERS OF BOARD OF GOVERNORS, OFFICERS, GRIEVANCE COMMITTEE MEMBERS, UPL COMMITTEE MEMBERS, CLIENTS' SECURITY FUND COMMITTEE MEMBERS, AND EMPLOYEES AppropriateThe bar will provide insurance coverage for members of the board of governors, officers of The Florida Bar, members of UPL, clients' security fund, and grievance committees, and employees of The Florida Bar shall be provided as authorized by the budget committee and included in the budget. The bar will indemnify officers, board of governors, UPL, clients' security fund, and grievance committee members and bar employees as provided in the standing board policies. To the extent the person is not covered by insurance, The Florida Bar shall indemnify any officer, board member, UPL, clients' security fund, or grievance committee member, or employee of The Florida Bar who was or is a party, or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by The Florida Bar), by reason of the fact that the person is or was an officer, board member, UPL, clients' security fund, or grievance committee member, or employee of The Florida Bar, against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by the person in connection with such action, suit, or proceeding, - 13 - including any appeal thereof, if the person acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of The Florida Bar, and with respect to any criminal action or proceeding, had no reasonable cause to believe the conduct was unlawful. The termination of any action, suit, or proceeding by judgment, order, settlement, or conviction or upon a plea of nolo contendere or its equivalent shall not of itself create a presumption that the person did not act in good faith and in a manner that the person reasonably believed to be in, or not opposed to, the best interests of The Florida Bar, or with respect to any criminal action or proceeding, had reasonable cause to believe that the conduct was unlawful. BYLAW 2-9.8 PRACTICE RESOURCE INSTITUTERESERVED FOR FUTURE USE The board of governors creates the Practice Resource Institute and will adopt standing board policies, as provided in bylaw 2-9.2, that govern the operation of the institute. CHAPTER 3 RULES OF DISCIPLINE 3-7 PROCEDURES RULE 3-7.2 PROCEDURES UPON CRIMINAL OR PROFESSIONAL MISCONDUCT; DISCIPLINE UPON DETERMINATION OR JUDGMENT OF GUILT OF CRIMINAL MISCONDUCT; DISCIPLINE ON REMOVAL FROM JUDICIAL OFFICE (a) Definitions. (1) Judgment of Guilt. For the purposes of these rules, “judgment of guilt” includes only those cases in which the trial court in the criminal proceeding enters an order adjudicating the respondent guilty of the offense(s) charged. (2) Determination of Guilt. For the purposes of these rules, “determination of guilt” includes those cases in which the trial court in the criminal proceeding enters an order withholding adjudication of the respondent’s guilt of the offense(s) charged, those cases in which the convicted lawyer has entered a plea of guilty to criminal charges, those cases in which the convicted lawyer has entered a no contest plea to criminal charges, those cases in which the jury has rendered a verdict of guilty of criminal charges, and those cases in which the trial judge in a bench trial has rendered a verdict of guilty of criminal charges. - 14 - (3) Convicted Lawyer. For the purposes of these rules, “convicted lawyer” means a lawyer who has had either a determination or judgment of guilt entered by the trial court in the criminal proceeding. (b) Determination or Judgment of Guilt, Admissibility; Proof of Guilt. Determination or judgment of guilt of a member of The Florida Bar by a court of competent jurisdiction upon trial of or plea to any crime under the laws of this state, or under the laws under which any other court making suchthe determination or entering suchthe judgment exercises its jurisdiction, is admissible in proceedings under these rules and is conclusive proof of guilt of the criminal offense(s) charged for the purposes of these rules. (c) Notice of Institution of Felony Criminal Charges. Upon the institution of a felony criminal charge against a member of The Florida Bar by the filing of an indictment or information theAny member of The Florida Bar who is the subject of a felony criminal charge must within 10 days of the institution of the felony criminal charges notify the executive director of The Florida Bar of suchthe charges within 10 days of the filing of the indictment or information and include a copy of the indictment or information. Notice includes a copy of the document(s) evidencing institution of the charges. If the state attorney whose office is assigned to a felony criminal case is aware that the defendant is a member of The Florida Bar, the state attorney must provide a copy of the indictment or information to the executive director. (d) Notice of Determination or Judgment of Guilt of Felony Charges. (1) Trial Judge. If any such determination or judgment is entered in a court of the State of Florida, theThe trial judge must, within 10 days of the date on which the determination or judgment is entered, give notice provide a certified copy of the determination or judgment of guilt of a felony offense to the executive director of The Florida Bar and include a certified copy of the document(s) on which the determination or judgment was enteredwithin 10 days of its entry. (2) Clerk of Court. If any such determination or judgment is entered in a court of the State of Florida, theThe clerk of that court must, within 10 days of the date on which the determination or judgment is entered, give notice provide a certified copy of the determination or judgment of guilt of a felony offense to the executive director and include a certified copy of the document(s) on which the determination or judgment was enteredwithin 10 days of its entry. - 15 - (3) State Attorney. If the state attorney whose office is assigned to a felony criminal case is aware that the defendant is a member of The Florida Bar, theThe state attorney whose office is assigned that case must give notice ofprovide a copy of the documents evidencing the determination or judgment of guilt of a felony offense to the executive director the determination or judgment of guilt to the executive director and include a copy of the document(s) evidencing such determination or judgmentif the state attorney is aware that the defendant is a member of The Florida Bar. (e) Notice of Self-Reporting by Members of Determination or Judgment of Guilt of All Criminal Charges. A member of The Florida Bar must within 10 days of entry of a determination or judgment for any criminal offense, which was entered on or after August 1, 2006, notify the executive director of The Florida Bar of such determination or judgment. Notice must includeprovide a copy of the document(s) on which such determination or judgment was enteredentering a determination or judgment for any criminal offense against that member entered on or after August 1, 2006 to the executive director within 10 days of its entry. (f) Suspension by Judgment of Guilt (Felonies). Upon receiving notice that a member of the bar has been determined to be or adjudicated guilty of a felony, the barThe Florida Bar will file a “Notice of Determination or Judgment of Guilt” or a consent judgment for disbarment or disciplinary revocation in the Supreme Court of Florida on receiving notice that a member of the bar has been determined to be or adjudicated guilty of a felony. A copy of the document(s) on which the determination or judgment is based must be attached to the notice. Upon the filing of the notice with the Supreme Court of Florida and service of such notice upon the respondent, theThe respondent is suspended as a member of The Florida Bar as defined in rule 3-5.1(e) on filing of the notice with the Supreme Court of Florida and service of the notice on the respondent. (g) Petition to Modify or Terminate Suspension. At any time after the filing of a notice of determination or judgment of guilt, theThe respondent may file a petition with the Supreme Court of Florida to modify or terminate such suspension at any time after the filing of a notice of determination or judgment of guilt.and The respondent must serve a copy of the petition on the executive director. The filing of such petition will not operate as a stay of the suspension imposed under the authority of this rule will not be stayed by filing a petition to modify or terminate suspension. - 16 - (h) Appointment of Referee. Upon the entry of an order of suspension, as provided above, the supreme court mustThe Supreme Court of Florida will promptly appoint or direct the appointment of a referee on the entry of an order of suspension as provided above. (1) Hearing on Petition to Terminate or Modify Suspension. The referee must hear a petition to terminate or modify a suspension imposed under this rule within 7 days of appointment and submit a report and recommendation to the Supreme Court of Florida within 7 days of the date of the hearing. The referee will recommend termination or modification of the suspension only if the suspended member can demonstrate that the member is not the convicted person or that the criminal offense is not a felony. (2) Hearing on Sanctions. In addition to conducting a hearing on a petition to terminate or modify a suspension entered under this rule, theThe referee may also hear argument concerning the appropriate sanction to be imposed and file a report and recommendation with the supreme court in the same manner and form as provided in rule 3-7.6(m) of these rules. The hearing must be held and a report and recommendation filed with the supreme court within 90 days of assignment as referee. The respondent may challenge the imposition of a sanction only on the grounds of mistaken identity or whether the conduct involved constitutes a felony under applicable law. The respondent may present relevant character evidence and relevant matters of mitigation regarding the proper sanction to be imposed. The respondent cannot contest the findings of guilt in the criminal proceedings. A respondent who entered a plea in the criminal proceedings is allowed to explain the circumstances concerning the entry of the plea for purposes of mitigation. The report and recommendations of the referee may be reviewed in the same manner as provided in rule 3-7.7 of these rules. (i) Appeal of Conviction. If an appeal is taken by the respondent from the determination or judgment in the criminal proceeding, theThe suspension will remain in effect during theany appeal of the determination or judgment of guilt of a felony offense in the criminal proceeding. If on review the cause is remanded for further proceedings, theThe suspension will remain in effect until the final disposition of the criminal cause if remanded for further proceedings and until the respondent's civil rights have been restored and the respondent has been reinstated - 17 - unless modified or terminated by the Supreme Court of Florida as elsewhere provided. Further, the suspension imposed will remain in effect until civil rights have been restored and until the respondent is reinstated. (j) Expunction. Upon motion of the respondent, theThe Supreme Court of Florida may expunge a sanction entered under this rule when a final disposition of the criminal cause has resulted in acquittal or dismissal on motion of the respondent. A respondent who is the subject of a sanction that is expunged under this rule may lawfully deny or fail to acknowledge the sanction, except when the respondent is a candidate for election or appointment to judicial office, or as otherwise required by law. (k) Waiver of Time Limits. The respondent may waive the time requirements set forth in this rule by written request made to and approved by the referee or supreme court. (l) Professional Misconduct in Foreign Jurisdiction. (1) Notice of Discipline by a Foreign Jurisdiction. A member of The Florida Bar who has submitted a disciplinary resignation or otherwise surrendered a license to practice law in lieu of disciplinary sanction, or has been disbarred or suspended from the practice of law by a court or other authorized disciplinary agency of another state or by a federal court must within 30 days after the effective date of the disciplinary resignation, disbarment or suspensionmust file a copy of any order or judgment by a court or other authorized disciplinary agency of another state or by a federal court effecting a disciplinary resignation, disciplinary revocation, disbarment, or suspension or any other surrender of the member's license to practice law in lieu of discipline with the Supreme Court of Florida and the executive director of The Florida Bar a copy of the order or judgment effecting such disciplinary resignation, disbarment or suspensionwithin 30 days of its effective date. (2) Effect of Adjudication or Discipline by a Foreign Jurisdiction. On petition of The Florida Bar supported by a copy of a final adjudication by a foreign court or disciplinary authority, theThe Supreme Court of Florida may issue an order suspending on an emergency basis the member who is the subject of the final adjudication on an emergency basis on petition of The Florida Bar attaching a copy of the final adjudication by a foreign court or disciplinary authority. All of the conditions not in conflict with this rule - 18 - applicable to issuance of emergency suspension orders elsewhere within these Rules Regulating The Florida Bar are applicable to orders entered under this rule. (m) Discipline Uponon Removal Fromfrom Judicial Office. (1) Notice of Removal. If an order of the Supreme Court of Florida removes a member of The Florida Bar from judicial office for judicial misconduct, theThe clerk of the supreme courtSupreme Court of Florida will forward a copy of theany order of removalremoving a member of The Florida Bar from judicial office for judicial misconduct to the executive director of The Florida Bar. (2) Filing of Formal Complaint. Upon receipt of an order removing a member from judicial office for judicial misconduct, the barThe Florida Bar may file a formal complaint with the courtSupreme Court of Florida and seek appropriate discipline on receipt of an order removing a member from judicial office for judicial misconduct. (3) Admissibility of Order; Conclusive Proof of Facts. The order of removal is admissible in proceedings under these rules and is conclusive proof of the facts on which the judicial misconduct was found by the courtSupreme Court of Florida. (4) Determination of Lawyer Misconduct. The issue of whether the facts establishing the judicial misconduct also support a finding of lawyer misconduct are determined by the referee based on the record of the proceedings. RULE 3-7.10 REINSTATEMENT AND READMISSION PROCEDURES (a) Reinstatement; Applicability. A lawyer who is ineligible to practice due to a court-ordered disciplinary suspension of 91 days or more or who has been placed on the inactive list for incapacity not related to misconduct may be reinstated to membership in good standing in The Florida Bar and be eligible to practice again pursuant to this rule. The proceedings under this rule are not applicable to any lawyer who is not eligible to practice law due to a delinquency as defined in rule 1-3.6 of these rules. - 19 - (b) Petitions; Form and Contents. (1) Filing. The original petition for reinstatement must be verified by the petitioner and filed with the Supreme Court of Florida in compliance with the Florida Rules of Civil Procedure and the Florida Rules of Judicial Administration. A copy must be served on Staff Counselstaff counsel, The Florida Bar, in compliance with applicable court rules. The petition for reinstatement may not be filed until the petitioner has completed at least 80% of the term of that lawyer’s period of suspension. (2) Form and Exhibits. The petition must be in the form and accompanied by the exhibits provided for elsewhere in this rule. The information required concerning the petitioner may include any or all of the following matters in addition to any other matters that may be reasonably required to determine the fitness of the petitioner to resume the practice of law: criminal and civil judgments; disciplinary judgments; copies of income tax returns together with consents to secure original returns; occupation during suspension and employment related information; financial statements; and statement of restitution of funds that were the subject matter of disciplinary proceedings. In cases seeking reinstatement from incapacity, the petition must also include copies of all pleadings in the matter leading to placement on the inactive list and all other matters reasonably required to demonstrate the character and fitness of the petitioner to resume the practice of law. (c) Deposit for Cost. The petition must be accompanied by proof of a deposit paid to The Florida Bar in the amount the board of governors prescribes to ensure payment of reasonable costs of the proceedings, as provided elsewhere in this rule. (d) Reference of Petition for Hearing. The chief justice will refer the petition for reinstatement to a referee for hearing; provided, however, that no such referral will be made until evidence is submitted showing that all costs assessed against the petitioner in all disciplinary or incapacity proceedings have been paid and restitution has been made. (e) Bar Counsel. When a petition for reinstatement is filed, the board of governors or staff counsel, if authorized by the board of governors, may appoint bar counsel to represent The Florida Bar in the proceeding. The lawyer’s duty is to appear at the hearings and to prepare and present to the referee evidence that, in the opinion of the referee or lawyer, will be considered in passing upon the petition. - 20 - (f) Determination of Fitness by Referee Hearing. The referee to whom the petition for reinstatement is referred must conduct the hearing as a trial, in the same manner, to the extent practical, as provided elsewhere in these rules. The referee must decide the fitness of the petitioner to resume the practice of law. In making this determination, the referee will consider whether the petitioner has engaged in any disqualifying conduct, the character and fitness of the petitioner, and whether the petitioner has been rehabilitated, as further described in this subdivision. All conduct engaged in after the date of admission to The Florida Bar is relevant in proceedings under this rule. (1) Disqualifying Conduct. A record manifesting a deficiency in the honesty, trustworthiness, diligence, or reliability of a petitioner may constitute a basis for denial of reinstatement. The following are considered disqualifying conduct: (A) unlawful conduct; (B) academic misconduct; (C) making or procuring any false or misleading statement or omission of relevant information, including any false or misleading statement or omission on any application requiring a showing of good moral character; (D) misconduct in employment; (E) acts involving dishonesty, fraud, deceit, or misrepresentation; (F) abuse of legal process; (G) financial irresponsibility; (H) neglect of professional obligations; (I) violation of an order of a court; (J) evidence of mental or emotional instability; (K) evidence of drug or alcohol dependency; (L) denial of admission to the bar in another jurisdiction on character and fitness grounds; - 21 - (M) disciplinary action by a lawyer disciplinary agency or other professional disciplinary agency of any jurisdiction; (N) failure of a felony-suspended lawyer to submit proof that the affected lawyer’s civil rights have been restored; and (O) any other conduct that adversely reflects on the character or fitness of the applicant. (2) Determination of Character and Fitness. In addition to other factors in making this determination, the following factors will be considered in assigning weight and significance to prior conduct: (A) age at the time of the conduct; (B) recency of the conduct; (C) reliability of the information concerning the conduct; (D) seriousness of the conduct; (E) factors underlying the conduct; (F) cumulative effect of the conduct or information; (G) evidence of rehabilitation; (H) positive social contributions since the conduct; (I) candor in the discipline and reinstatement processes; and (J) materiality of any omissions or misrepresentations. (3) Elements of Rehabilitation. Merely showing that an individual is now living as and doing those things that should be done throughout life, although necessary to prove rehabilitation, does not prove that the individual has undertaken a useful and constructive place in society. Any petitioner for reinstatement from discipline for prior misconduct is required to produce clear and convincing evidence of rehabilitation including, but not limited to, the following elements: (A) strict compliance with the specific conditions of any disciplinary, judicial, administrative, or other order, where applicable; - 22 - (B) unimpeachable character and moral standing in the community; (C) good reputation for professional ability, where applicable; (D) lack of malice and ill feeling toward those who by duty were compelled to bring about the disciplinary, judicial, administrative, or other proceeding; (E) personal assurances, supported by corroborating evidence, of a desire and intention to conduct one’s self in an exemplary fashion in the future; (F) restitution of funds or property, where applicable; and (G) positive action showing rehabilitation by such things as a person’s community or civic service. Community or civic service is donated service or activity that is performed by someone or a group of people for the benefit of the public or its institutions. The requirement of positive action is appropriate for persons seeking reinstatement to the bar as well as for applicants for admission to the bar because service to one’s community is an essential obligation of members of the bar. (4) Educational Requirements. (A) In the case of a petitioner’s ineligibility to practice for a period of 3 years or longer under this rule, the petitioner must demonstrate to the referee that the petitioner is current with changes and developments in the law: (i) The petitioner must have completed at least 10 hours of continuing legal education courses for each year or portion of a year that the petitioner was ineligible to practice. (ii) The petitioner may further demonstrate that the petitioner is current with changes and developments in the law by showing that the petitioner worked as a law clerk or paralegal or taught classes on legal issues during the period of ineligibility to practice. (B) A petitioner who has been ineligible to practice for 5 years or more will not be reinstated under this rule until the petitioner has re-taken and provided proof in the lawyer’s petition for reinstatement that the lawyer has - 23 - passed both the Florida portions of the Florida Bar Examination and the Multistate Professional Responsibility Examination (MPRE). A petitioner must have proof of passing all these required portions of the bar examination before that petitioner may file a petition for reinstatement under this subdivision. (g) Hearing; Notice; Evidence. (1) Notice. The referee to whom the petition for reinstatement is referred will fix a time and place for hearing, and notice of the hearing will be provided at least 10 days prior to the hearing to the petitioner, to lawyers representing The Florida Bar, and to other persons who may be designated by the appointed referee. (2) Appearance. Any persons to whom notice is given, any other interested persons, or any local bar association may appear before the referee in support of or in opposition to the petition at any time or times fixed for the hearings. (3) Failure of Petitioner to be Examined. For the failure of the petitioner to submit to examination as a witness pursuant to notice given, the referee will dismiss the petition for reinstatement unless good cause is shown for the failure. (4) Summary Procedure. If after the completion of discovery bar counsel is unable to discover any evidence on which denial of reinstatement may be based and if no other person provides any relevant evidence, bar counsel may, with the approval of the designated reviewer and staff counsel, stipulate to the issue of reinstatement, including conditions for reinstatement. The stipulation must include a statement of costs as provided elsewhere in these Rules Regulating theThe Florida Bar. (5) Evidence of Treatment or Counseling for Dependency or Other Medical Reasons. If the petitioner has sought or received treatment or counseling for chemical or alcohol dependency or for other medical reasons that relate to the petitioner’s fitness to practice law, the petitioner must waive confidentiality of such treatment or counseling for purposes of evaluation of the petitioner’s fitness. The provisions of rule 3-7.1(d) are applicable to information or records disclosed under this subdivision. (h) Prompt Hearing; Report. The referee to whom a petition for reinstatement has been referred by the chief justice will proceed to a prompt - 24 - hearing, at the conclusion of which the referee will make and file with the Supreme Court of Florida a report that includes the findings of fact and a recommendation as to whether the petitioner is qualified to resume the practice of law. The referee must file the report and record in the Supreme Court of Florida. (i) Review. Review of referee reports in reinstatement proceedings must be in accordance with rule 3-7.7. (j) Recommendation of Referee and Judgment of the Court. If the petitioner is found unfit to resume the practice of law, the petition will be dismissed. If the petitioner is found fit to resume the practice of law, the referee will enter a report recommending, and the court may enter an order of, reinstatement of the petitioner in The Florida Bar; provided, however, that the reinstatement may be conditioned on the payment of all or part of the costs of the proceeding and on the making of partial or complete restitution to parties harmed by the petitioner’s misconduct that led to the petitioner’s suspension of membership in The Florida Bar or conduct that led to the petitioner’s incapacity; and, if suspension or incapacity of the petitioner has continued for more than 3 years, the reinstatement may be conditioned on proof of competency as may be required by the judgment in the discretion of the Supreme Court of Florida. Proof may include certification by the Florida Board of Bar Examiners of the successful completion of an examination for admission to The Florida Bar subsequent to the date of the suspension or incapacity. (k) Successive Petitions. No petition for reinstatement may be filed within 1 year following an adverse judgment on a petition for reinstatement filed by or on behalf of the same person. In cases of incapacity no petition for reinstatement may be filed within 6 months following an adverse judgment under this rule. (l) Petitions for Reinstatement to Membership in Good Standing. (1) Availability. Petitions for reinstatement under this rule are available to members placed on the inactive list for incapacity not related to misconduct and suspended members of the bar when the disciplinary judgment conditions their reinstatement upon a showing of compliance with specified conditions. (2) Style of Petition. Petitions must be styled in the Supreme Court of Florida and filed with the Supreme Court of Florida in accordance with the court’s filing requirements, including e-filing requirements where applicable. A copy must be served on Staff Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300. - 25 - (3) Contents of Petition. The petition must be verified by the petitioner and accompanied by a written authorization to the District Director of the Internal Revenue Service, authorizing the furnishing of certified copies of the petitioner’s tax returns for the past 5 years or since admission to the bar, whichever is greater. The authorization must be furnished on a separate sheet. The petition must have attached as an exhibit a true copy of all disciplinary judgments previously entered against the petitioner. It must also include the petitioner’s statement concerning the following: (A) name, age, residence, address, and number and relation of dependents of the petitioner; (B) the conduct, offense, or misconduct on which the suspension or incapacity was based, together with the date of such suspension or incapacity; (C) the names and addresses of all complaining witnesses in any disciplinary proceedings that resulted in suspension; and the name and address of the referee or judge who heard these disciplinary proceedings or of the trial judge, complaining witnesses, and prosecuting lawyer, if suspension was based on conviction of a felony or misdemeanor involving moral turpitude; (D) the nature of the petitioner’s occupation in detail since suspension or incapacity, with names and addresses of all partners, associates in business, and employers, if any, and dates and duration of all these relations and employments; (E) a statement showing the approximate monthly earnings and other income of the petitioner and the sources from which all earnings and income were derived during this period; (F) a statement showing all residences maintained during this period, with names and addresses of landlords, if any; (G) a statement showing all financial obligations of the petitioner including, but not limited to, amounts claimed, unpaid, or owing to The Florida Bar Clients’ Security Fund or former clients at the date of filing of the petition, together with the names and addresses of all creditors; - 26 - (H) a statement of restitution made for any and all obligations to all former clients and the Florida Bar Clients’ Security Fund and the source and amount of funds used for this purpose; (I) a statement showing dates, general nature, and ultimate disposition of every matter involving the arrest or prosecution of the petitioner during the period of suspension for any crime, whether felony or misdemeanor, together with the names and addresses of complaining witnesses, prosecuting lawyers, and trial judges; (J) a statement as to whether any applications were made during the period of suspension for a license requiring proof of good character for its procurement; and, for each application, the date and the name and address of the authority to whom it was addressed and its disposition; (K) a statement of any procedure or inquiry, during the period of suspension, covering the petitioner’s standing as a member of any profession or organization, or holder of any license or office, that involved the censure, removal, suspension, revocation of license, or discipline of the petitioner; and, as to each, the dates, facts, and the disposition, and the name and address of the authority in possession of these records; (L) a statement as to whether any charges of fraud were made or claimed against the petitioner during the period of suspension, whether formal or informal, together with the dates and names and addresses of persons making these charges; (M) a concise statement of facts claimed to justify reinstatement to The Florida Bar; (N) a statement showing the dates, general nature, and final disposition of every civil action in which the petitioner was either a party plaintiff or defendant, together with dates of filing of complaints, titles of courts and causes, and the names and addresses of all parties and of the trial judge or judges, and names and addresses of all witnesses who testified in this action or actions; and (O) a statement showing what amounts, if any, of the costs assessed against the accused lawyer in the prior disciplinary proceedings against the petitioner have been paid by the petitioner and the source and amount of funds used for this purpose. - 27 - (4) Comments on Petition. On the appointment of a referee and bar counsel, copies of the petition will be furnished by the bar counsel to local board members, local grievance committees, and to other persons mentioned in this rule. Persons or groups that wish to respond must direct their comments to bar counsel. The proceedings and finding of the referee will relate to those matters described in this rule and also to those matters tending to show the petitioner’s rehabilitation, present fitness to resume the practice of law, and the effect of the proposed reinstatement on the administration of justice and purity of the courts and confidence of the public in the profession. (5) Costs Deposit. The petition must be accompanied by a deposit for costs of $500. (m) Costs. (1) Taxable Costs. Taxable costs of the proceedings must include only: (A) investigative costs, including travel and out-of-pocket expenses; (B) court reporters’ fees; (C) copy costs; (D) telephone charges; (E) fees for translation services; (F) witness expenses, including travel and out-of-pocket expenses; (G) travel and out-of-pocket expenses of the referee; (H) travel and out-of-pocket expenses of counsel in the proceedings, including the petitioner if acting as counsel; and (I) an administrative fee in the amount of $1250 when costs are assessed in favor of the bar. (2) Discretion of Referee. The referee has discretion to award costs and, absent an abuse of discretion, the referee’s award will not be reversed. (3) Assessment of Bar Costs. The costs incurred by the bar in any reinstatement case may be assessed against the petitioner unless it is shown that the costs were unnecessary, excessive, or improperly authenticated. - 28 - (4) Assessment of Petitioner’s Costs. The referee may assess the petitioner’s costs against the bar in the event that there was no justiciable issue of either law or fact raised by the bar unless it is shown that the costs were unnecessary, excessive, or improperly authenticated. (n) Readmission; Applicability. A former member who has been disbarred, disbarred on consent, or whose petition for disciplinary resignation or revocation has been accepted may be admitted again only upon full compliance with the rules and regulations governing admission to the bar. No application for readmission following disbarment, disbarment on consent, or disciplinary resignation or revocation may be tendered until such time as all restitution and disciplinary costs as may have been ordered or assessed have been paid together with any interest accrued. (1) Readmission After Disbarment. Except as might be otherwise provided in these rules, no application for admission may be tendered within 5 years after the date of disbarment or such longer period of time as the court might determine in the disbarment order. An order of disbarment that states the disbarment is permanent precludes readmission to The Florida Bar. (2) Readmission After Disciplinary Resignation or Revocation. A lawyer’s petition for disciplinary resignation or revocation states that it is without leave to apply for readmission will preclude any readmission. A lawyer who was granted a disciplinary resignation or revocation may not apply for readmission until all conditions of the Supreme Court order granting the disciplinary resignation or revocation have been complied with. Comment To further illuminate the community service requirements of Rulerule 3- 7.10(f)(3)(G), bar members can take guidance from the Florida Supreme Court’s decision in Florida Board of Bar Examiners re M.L.B., 766 So. 2d 994, 998-999 (Fla. 2000). The court held that rules requiring community service “contemplate and we wish to encourage positive actions beyond those one would normally do for self benefit, including, but certainly not limited to, working as a guardian ad litem, volunteering on a regular basis with shelters for the homeless or victims of domestic violence, or maintaining substantial involvement in other charitable, community, or educational organizations whose value system, overall mission and activities are directed to good deeds and humanitarian concerns impacting a broad base of citizens.” - 29 - Court decisions dealing with reinstatements and other discipline provide further guidance as to what specific actions meet the test of community service. The court approved dismissal of a petition for reinstatement where the respondent had no community service and had devoted all her time during suspension to raising her young children. Fla. Bar v. Tauler, 837 So. 2d 413 (Fla. 2003). In a more recent decision, the court did not specifically mention lack of community service in denying reinstatement, but the respondent had shown no evidence of work for others outside his family in his petition. Respondent’s community service consisted solely of taking care of his elderly parents and his small child. Fla. Bar v. Juan Baraque, 43 So. 3d 691 (Fla. 2010). RULE 3-7.11 GENERAL RULES OF PROCEDURE (a) Time is Directory. Except as provided hereinin this rule, the time intervals required are directory only and are not jurisdictional. Failure to observe suchthese directory intervals may result in contempt of the agency having jurisdiction or of the Supreme Court of Florida, but will not prejudice the offending party, except where so provided. (b) Process. Every member of The Florida Bar is charged with notifyingmust notify The Florida Bar of any change of mailing address, e-mail address (unless the lawyer has been excused by The Florida Bar or courtthe Supreme Court of Florida from e-filing and e-service), and military status. The Florida Bar may serve notice of formal complaints in bar proceedings by certified U.S. Postal Service certified mail return receipt requested to the bar member’s record bar address unless the Supreme Court of Florida directs other service. Every lawyer of another state who is admitted pro hac vice in a specific case before a court of record in Florida may be served by certified U.S. Postal Service certified mail return receipt requested addressed to the lawyer in care of the Florida lawyer who was associated or appeared with the lawyer admitted pro hac vice or addressed to the Florida lawyer at any address listed by the lawyer in the pleadings in the case. Provided, however, when a person is represented by counsel, serviceService of process and notices must be directed to counsel whenever a person is represented by counsel. (c) Notice in Lieu of Process. Every member of The Florida Bar is within the jurisdiction of the Supreme Court of Florida and its agencies under these rules, and service of process is not required to obtain jurisdiction over respondents in disciplinary proceedings; but due process requires reasonable notice and this notice will be effected by service of the complaint on the respondent by mailing a copy of - 30 - The Florida Bar's formal complaint. The Florida Bar will serve the complaint on the respondent by certified U.S. Postal Service mail return receipt requested to the respondent's record bar address or a more current address that may be known to the person serving the complaint or other process. When the respondent is represented by counsel in a referee proceeding, due process is satisfied by service of the formal complaint on the respondent’s counsel by mailing a copyThe Florida Bar will serve the formal complaint by certified U.S Postal Service mail return receipt requested to the record bar address of the respondent’s counsel or a more current address that may be known to the person serving the complaint. All other correspondence between The Florida Bar and respondents or their counsel, including bar inquiries that require responses during the investigative stage of a disciplinary proceeding, may be made by e-mail to the respondent’s record bar e-mail address or the record bar e-mail address of respondent’s counsel. E-mail correspondence is encouraged in all instances except in service of a formal complaint or subpoena, or where a court directs otherwise. If a lawyer has been excused by The Florida Bar or a court from e-filing and e-service, or service cannot be made by e-mail, service by first class postalU.S. Postal Service mail is sufficient, except where these rules or a court direct otherwise. (d) Issuance of Subpoenas. Subpoenas for witnesses’ attendance and the production of documentary evidence, except before a circuit court, must be issued as follows:. (1) Referees. Subpoenas for witnesses’ attendance and production of documentary evidence before a referee must be issued by the referee and must be served either in the manner provided by law for the service of process or by an investigator employed by The Florida Bar. (2) Grievance Committees. Subpoenas for witnesses’ attendance and the production of documentary evidence must be issued by the chair or vice-chair of a grievance committee as part of an investigation authorized by the committee. These subpoenas may be served by any member of the grievance committee, by an investigator employed by The Florida Bar, or in the manner provided by law for service of process. (3) Bar Counsel Investigations. Subpoenas for witnesses’ attendance and the production of documentary evidence before bar counsel in an initial investigation must be issued by the chair or vice chair of a grievance - 31 - committee to which the matter will be assigned, if appropriate. These subpoenas may be served by an investigator employed by The Florida Bar or in the manner provided by law for the service of process. (4) After Grievance Committee Action, But Before Appointment of Referee. Subpoenas for witnesses’ attendance and the production of documentary evidence before bar counsel when conducting further investigation after action by a grievance committee, but before appointment of a referee, must be issued by the chair or vice chair of the grievance committee to which the matter was assigned. These subpoenas may be served by an investigator employed by The Florida Bar or in the manner provided by law for the service of process. (5) Board of Governors. Subpoenas for witnesses’ attendance and the production of documentary evidence before the board of governors must be issued by the executive director and must be served by an investigator employed by The Florida Bar or in the manner provided by law for service of process. (6) Confidential Proceedings. If the proceeding is confidential, a subpoena must not name the respondent but must style the proceeding as "Confidential Proceeding by The Florida Bar under the Rules of Discipline." (7) Contempt. (A) Generally. Any persons who, without adequate excuse, fail to obey a subpoena served on them under these rules, may be cited for contempt of this courtthe Supreme Court of Florida in the manner provided by this rule. (B) Subpoenas for Trust Accounting Records. Members of the bar are under an obligation to maintain trust accounting records as required by these rules and, as a condition of the privilege of practicing law in Florida, may not assert any privilege personal to the lawyer that may be applicable to production of these records in any disciplinary proceedings under these rules. (i) A respondent who has been found in willful noncompliance with a subpoena for trust accounting records may be cited for contempt under this rule only if the disciplinary agency that issued the subpoena has found that no good cause existed for the respondent’s failure to comply. - 32 - (ii) The disciplinary agency that issued the subpoena must hear the issue of noncompliance and issue findings on the noncompliance within 30 days of a request for issuance of the notice of noncompliance. (8) Assistance to Other Lawyer Disciplinary Jurisdictions. On receipt of a subpoena certified to be issued under the rules or laws of another lawyer disciplinary jurisdiction, the executive director may issue a subpoena directing a person domiciled or found within the state of Florida to give testimony and/or produce documents or other evidence for use in the other jurisdiction's lawyer disciplinary proceedings as directed in the subpoena of the other jurisdiction. The practice and procedure applicable to subpoenas issued under this subdivision will be that of the other jurisdiction, except that: (A) the testimony or production must be only in the county in which the person resides or is employed, or as otherwise fixed by the executive director for good cause shown; and (B) compliance with any subpoena issued pursuant to this subdivision and contempt for failure in this respect must be sought under these rules. (e) Oath of Witness. Every witness in every proceeding under these rules must be sworn to tell the truth. Violation of this oath is an act of contempt of this courtthe Supreme Court of Florida. (f) Contempt. When a disciplinary agency, as defined elsewhere in these rules, finds that a person is in contempt under these rules, that person may be cited for contempt in the following manner:. (1) Generally. (A) Petition for Contempt and Order to Show Cause. When a person is found in contempt by a disciplinary agency, bar counsel must file a petition for contempt and order to show cause with the Supreme Court of Florida. (B) Order to Show Cause; Suspension for Noncompliance with Subpoena for Trust Accounting Records. On review of a petition for contempt and order to show cause, the supreme courtSupreme Court of Florida may issue an order directing the person to show cause why the person should not be held in contempt and appropriate sanctions imposed. On review of a petition for contempt and order to show cause for noncompliance with a trust accounting subpoena, the supreme courtThe - 33 - Supreme Court of Florida may also issue an order suspending the respondent from the practice of law in Florida until the member fully complies with the subpoena and any further order of the courtSupreme Court of Florida. The order of the supreme courtSupreme Court of Florida must fix a time for a response. (C) Response to Order to Show Cause. (i) Generally. Any member subject to an order to show cause must file a response as directed by the courtSupreme Court of Florida. (ii) Noncompliance with a Subpoena for Trust Account Records. Any member subject to an order to show cause for noncompliance with a subpoena for trust accounting records may request the courtSupreme Court of Florida: a. to withhold entry of an order of suspension, if filed within 10 days of the filing of the petition for contempt and order to show cause, or another time the courtSupreme Court of Florida may direct in the order to show cause; or b. to terminate or modify the order of suspension at any time after the order of suspension is issued. The courtSupreme Court of Florida may terminate, modify, or withhold entry of an order of suspension if the member establishes good cause for failure to comply with the subpoena for trust account records. (D) Failure to Respond to Order to Show Cause. On failure to timely respond to an order to show cause, the matters alleged in the petition are deemed admitted and the supreme courtSupreme Court of Florida may enter a judgment of contempt and impose appropriate sanctions. Failure to respond may be an additional basis for the supreme courtSupreme Court of Florida to enter a judgment of contempt and to impose sanctions. (E) Reply of The Florida Bar. When a timely response to an order to show cause is filed, The Florida Bar will have 10 days, or another time period as the supreme courtSupreme Court of Florida may order, from the date of filing to file a reply. - 34 - (F) Supreme Court of Florida Action. After the time to respond to an order to show cause has expired and no response is timely filed, or after the reply of The Florida Bar has been filed, or the time has expired without any filing, the supreme courtThe Supreme Court of Florida will review the matter and issue an appropriate judgment after the time to respond to an order to show cause has expired and no response is timely filed, or after the reply of The Florida Bar has been filed, or the time has expired without any filing. This judgment may include any sanction that a court may impose for contempt and, if the person found in contempt is a member of The Florida Bar, may include any disciplinary sanction authorized under these rules. If the supreme courtSupreme Court of Florida requires factual findings, the supreme courtit may direct appointment of a referee as provided in these rules. Proceedings for contempt referred to a referee must be processed in the same manner as disciplinary proceedings under these rules, including, but not limited to, the procedures provided in these rules for conditional guilty pleas for consent judgments. If the courtSupreme Court of Florida determines it necessary to refer a request to terminate, modify, or withhold entry of an order of suspension based on a petition for contempt and order to show cause for noncompliance with a subpoena for trust account records to a referee for receipt of evidence, the referee proceedings must be expedited and conducted in the same manner as proceedings before a referee on a petition to terminate, modify, or withhold an order of emergency suspension, as provided in these rules. (G) Preparation and Filing of Report of Referee and Record. The referee must prepare and file a report and the record in cases brought under this rule. The procedures provided for in the rule on procedure before a referee under these rules apply to the preparation, filing, and review of the record. (H) Appellate Review of Report of Referee. Any party to the contempt proceedings may seek review of the report of referee in the manner provided in these rules for appellate review of disciplinary proceedings. (2) Failure to Respond to Official Bar Inquiries. (A) Petition for Contempt and Order to Show Cause. When a respondent is found in contempt by a disciplinary agency for failure to - 35 - respond to an official bar inquiry without good cause shown, bar counsel must file a petition for contempt and order to show cause with the Supreme Court of Florida. (B) Response to Petition for Contempt and Order to Show Cause. The respondent will have 10 days from the date of filing of a petition authorized by this subdivision to file a response. (C) Supreme CourtSupreme Court of Florida Action. (i) Entry of Suspension Order. The courtSupreme Court of Florida will enter an order suspending the respondent for failure to respond to an official bar inquiry after the respondent files a response to the order to show cause or the time for filing a response has expired, unless the courtit orders otherwise. (ii) Assignment to Referee. If the supreme courtSupreme Court of Florida requires factual findings, the supreme courtit may direct appointment of a referee as provided in these rules. Proceedings for contempt referred to a referee must be processed in the same manner as disciplinary proceedings under these rules, including, but not limited to, the provisions provided for conditional guilty pleas for consent judgments. (g) Court Reporters. Court reporters who are employees of The Florida Bar may be appointed to report any disciplinary proceeding. If the respondent objects at least 48 hours in advance of the matter to be recorded, an independent contract reporter may be retained. Reasonable costs for independent court reporter service will be taxed to the respondent for payment to The Florida Bar. (h) Disqualification as Trier and AttorneyLawyer for Respondent Due to Conflict. (1) Grievance Committee Members, Members of the Board of Governors, and Employees of The Florida Bar. No grievance committee member, member of the board of governors, or employee of The Florida Bar may represent a party other than The Florida Bar in disciplinary proceedings authorized under these rules. (2) Former Grievance Committee Members, Former Board Members, and Former Employees. No former member of a grievance committee, former member of the board of governors, or former employee of The Florida Bar may - 36 - represent any party other than The Florida Bar in disciplinary proceedings authorized under these rules if personally involved to any degree in the matter while a member of the grievance committee, the board of governors, or while an employee of The Florida Bar. A former member of the board of governors, former member of any grievance committee, or former employee of The Florida Bar who did not participate personally in any way in the investigation or prosecution of 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 investigation or prosecution, may not represent any party except The Florida Bar for 1 year after this service without the express consent of the board. (3) Partners, Associates, Employers, or Employees of the Firms of Grievance Committee Members or Board of Governors Members Precluded From Representing Parties Other Than The Florida Bar. Members of the firms of grievance committee members or board members may not represent any party other than The Florida Bar in disciplinary proceedings authorized under these rules without the express consent of the board. (4) Partners, Associates, Employers, or Employees of the Firms of Former Grievance Committee Members or Former Board of Governors Members Precluded From Representing Parties Other Than The Florida Bar. Lawyers in the firms of former board members or former grievance committee members may not represent any party other than The Florida Bar in disciplinary proceedings authorized under these rules for 1 year after the former member’s service without the express consent of the board. (1) Representation Prohibited. Lawyers may not represent a party other than The Florida Bar in disciplinary proceedings authorized by these rules if they are: (A) currently serving on a grievance committee or the board of governors; (B) employees of The Florida Bar; or (C) former members of a grievance committee, former members of the board of governors, or former employees of The Florida Bar if personally involved to any degree in the matter while a member of a grievance committee or the board of governors, or while an employee of The Florida Bar. - 37 - (2) Representation Permitted With Consent by the Board of Governors. Lawyers may represent a party other than The Florida Bar in disciplinary proceedings authorized by these rules only after receiving consent from the executive director or board of governors if they are: (A) former members of a grievance committee, former members of the board of governors, 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; (B) a partner, associate, employer, or employee of a member of a grievance committee or a member of the board of governors; or (C) a partner, associate, employer, or employee of a former member of a grievance committee or a former member of the board of governors within 1 year of the former member’s service on the grievance committee or board of governors. (i) Proceedings After Disbarment. The respondent may consent to or the courtSupreme Court of Florida may order further proceedings after disbarment, which may include: an audit of trust, operating, or personal bank accounts, the cost of which may be assessed as provided in these rules; a requirement that the respondent provide a financial affidavit attesting to personal and business finances; and maintenance of a current mailing address for a stated period of time. RULE 3-7.15 AMENDMENTSRESERVED FOR FUTURE USE Petitions for revision of or amendments to chapter 3 will be entertained by this court when presented by the board of governors or by not fewer than 50 members in good standing of The Florida Bar. Notice of intention to file such petition together with a copy of the proposed amendment shall be published in The Florida Bar News no less than 30 days prior to the filing of such petition. The court will thereafter accept objections or comments on such petition. CHAPTER 4 RULES OF PROFESSIONAL CONDUCT 4-1 CLIENT-LAWYER RELATIONSHIP RULE 4-1.2 OBJECTIVES AND SCOPE OF REPRESENTATION (a) Lawyer to Abide by Client's Decisions. Subject to subdivisions (c) and (d), a lawyer must abide by a client's decisions concerning the objectives of - 38 - representation, and, as required by rule 4-1.4, must reasonably consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client asthat is impliedly authorized to carry out the representation. A lawyer must abide by a client's decision whether to settle a matter. In a criminal case, the lawyer must abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify. (b) No Endorsement of Client's Views or Activities. A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social, or moral views or activities. (c) Limitation of Objectives and Scope of Representation. If not prohibited by law or rule, a lawyer and client may agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent in writing, except that a lawyer giving advice in a short- term limited legal services program under rule 4-6.6 is not required to obtain the consent in writing. If the lawyer and client agree to limit the scope of the representation, the lawyer must advise the client regarding applicability of the rule prohibiting communication with a represented person. (d) Criminal or Fraudulent Conduct. A lawyer must not counsel a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent. However, a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. Comment Allocation of authority between client and lawyer Subdivision (a) confers on the client the ultimate authority to determine the purposes to be served by legal representation, within the limits imposed by law and the lawyer's professional obligations. Within those limits, a client also has a right to consult with the lawyer about the means to be used in pursuing those objectives. At the same time, a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so. A clear distinction between objectives and means sometimes cannot be drawn, and in many cases the client-lawyer relationship partakes of a joint undertaking. In questions of means, - 39 - the lawyer should assume responsibility for technical and legal tactical issues but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected. Law defining the lawyer's scope of authority in litigation varies among jurisdictions. The decisions specified in subdivision (a), such as whether to settle a civil matter, must also be made by the client. See rule 4-1.4(a)(1) for the lawyer's duty to communicate with the client about these decisions. With respect to the means by which the client's objectives are to be pursued, the lawyer must consult with the client as required by rule 4-1.4(a)(2) and may take action as is impliedly authorized to carry out the representation. On occasion, however, a lawyer and a client may disagree about the means to be used to accomplish the client's objectives. The lawyer should consult with the client and seek a mutually acceptable resolution of the disagreement. If these efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation. See rule 4-1.16(b)(42). Conversely, the client may resolve the disagreement by discharging the lawyer. See rule 4-1.16(a)(3). At the outset of a representation, the client may authorize the lawyer to take specific action on the client's behalf without further consultation. Absent a material change in circumstances and subject to rule 4-1.4, a lawyer may rely on the advance authorization. The client may, however, revoke this authority at any time. In a case in which the client appears to be suffering mental disability, the lawyer's duty to abide by the client's decisions is to be guided by reference to rule 4-1.14. Independence from client's views or activities Legal representation should not be denied to people who are unable to afford legal services or whose cause is controversial or the subject of popular disapproval. By the same token representing a client does not constitute approval of the client's views or activities. Agreements limiting scope of representation The scope of services to be provided by a lawyer may be limited by agreement with the client or by the terms under which the lawyer's services are made available to the client. When a lawyer has been retained by an insurer to represent an insured, for example, the representation may be limited to matters related to the - 40 - insurance coverage. A limited representation may be appropriate because the client has limited objectives for the representation. In addition, the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client's objectives. Limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent, or which the client regards as financially impractical. Although this rule affords the lawyer and client substantial latitude to limit the representation if not prohibited by law or rule, the limitation must be reasonable under the circumstances. If, for example, a client’s objective is limited to securing general information about the law the client needs in order to handle a common and typically uncomplicated legal problem, the lawyer and client may agree that the lawyer’s services will be limited to a brief consultation. This limitation, however, would not be reasonable if the time allotted was not sufficient to yield advice upon which the client could rely. In addition, a lawyer and client may agree that the representation will be limited to providing assistance out of court, including providing advice on the operation of the court system and drafting pleadings and responses. If the lawyer assists a pro se litigant by drafting any document to be submitted to a court, the lawyer is not obligated to sign the document. However, the lawyer must indicate "Prepared with the assistance of counsel" on the document to avoid misleading the court, which, otherwise might be under the impression that the person, who appears to be proceeding pro se, has received no assistance from a lawyer. If not prohibited by law or rule, a lawyer and client may agree that any in-court representation in a family law proceeding be limited as provided for in Family Law Rule of Procedure 12.040. For example, a lawyer and client may agree that the lawyer will represent the client at a hearing regarding child support and not at the final hearing or in any other hearings. For limited in-court representation in family law proceedings, the lawyer must communicate to the client the specific boundaries and limitations of the representation so that the client is able to give informed consent to the representation. Regardless of the circumstances, a lawyer providing limited representation forms a client-lawyer relationship with the litigant, and owes the client all attendant ethical obligations and duties imposed by the Rules Regulating The Florida Bar, including, but not limited to, duties of competence, communication, confidentiality, and avoidance of conflicts of interest. Although an agreement for limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when - 41 - determining the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. See rule 4-1.1. An agreement concerning the scope of representation must accord with the Rules of Professional Conduct and law. For example, the client may not be asked to agree to representation so limited in scope as to violate rule 4-1.1 or to surrender the right to terminate the lawyer's services or the right to settle litigation that the lawyer might wish to continue. Criminal, fraudulent, and prohibited transactions A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may not assist a client in conduct that the lawyer knows or reasonably should know to be criminal or fraudulent. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity. When the client's course of action has already begun and is continuing, the lawyer's responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See rule 4-1.16(a). In some cases, withdrawal alone might be insufficient. It may be necessary for the lawyer to give notice of the fact of withdrawal and to disaffirm any opinion, document, affirmation, or the like. See rule 4-4.1. Where the client is a fiduciary, the lawyer may be charged with special obligations in dealings with a beneficiary. Subdivision (d) applies whether or not the defrauded party is a party to the transaction. For example, a lawyer must not participate in a transaction to effectuate criminal or fraudulent avoidance of tax liability. Subdivision (d) does not preclude undertaking a criminal defense incident to a general retainer for legal services to a lawful enterprise. The last sentence of subdivision (d) recognizes that determining the validity or interpretation of a statute or regulation may require a - 42 - course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities. If a lawyer comes to know or reasonably should know that a client expects assistance not permitted by the Rules of Professional Conduct or other law or if the lawyer intends to act contrary to the client's instructions, the lawyer must consult with the client regarding the limitations on the lawyer's conduct. See rule 4- 1.4(a)(5). RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES (a) Illegal, Prohibited, or Clearly Excessive Fees and Costs. An attorney shallA lawyer must not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or cost, or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar. A fee or cost is clearly excessive when: (1) after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee or the cost exceeds a reasonable fee or cost for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the attorney; or (2) the fee or cost is sought or secured by the attorney by means of intentional misrepresentation or fraud upon the client, a nonclient party, or any court, as to either entitlement to, or amount of, the fee. (b) Factors to Be Considered in Determining Reasonable Fees and Costs. (1) Factors to be considered as guides in determining a reasonable fee include: (A) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (B) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (C) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature; - 43 - (D) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained; (E) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client; (F) the nature and length of the professional relationship with the client; (G) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and (H) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation. (2) Factors to be considered as guides in determining reasonable costs include: (A) the nature and extent of the disclosure made to the client about the costs; (B) whether a specific agreement exists between the lawyer and client as to the costs a client is expected to pay and how a cost is calculated that is charged to a client; (C) the actual amount charged by third party providers of services to the attorney; (D) whether specific costs can be identified and allocated to an individual client or a reasonable basis exists to estimate the costs charged; (E) the reasonable charges for providing in-house service to a client if the cost is an in-house charge for services; and (F) the relationship and past course of conduct between the lawyer and the client. All costs are subject to the test of reasonableness set forth in subdivision (a) above. When the parties have a written contract in which the method is - 44 - established for charging costs, the costs charged thereunder shallunder that contract will be presumed reasonable. (c) Consideration of All Factors. In determining a reasonable fee, the time devoted to the representation and customary rate of fee need not be the sole or controlling factors. All factors set forth in this rule should be considered, and may be applied, in justification of a fee higher or lower than that which would result from application of only the time and rate factors. (d) Enforceability of Fee Contracts. Contracts or agreements for attorney’s fees between attorney and client will ordinarily be enforceable according to the terms of such contracts or agreements, unless found to be illegal, obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar, prohibited by this rule, or clearly excessive as defined by this rule. (e) Duty to Communicate Basis or Rate of Fee or Costs to Client and Definitions. (1) Duty to Communicate. When the lawyer has not regularly represented the client, the basis or rate of the fee and costs shallmust be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. A fee for legal services that is nonrefundable in any part shallmust be confirmed in writing and shallmust explain the intent of the parties as to the nature and amount of the nonrefundable fee. The test of reasonableness found in subdivision (b), above, applies to all fees for legal services without regard to their characterization by the parties. The fact that a contract may not be in accord with these rules is an issue between the attorneylawyer and client and a matter of professional ethics, but is not the proper basis for an action or defense by an opposing party when fee- shifting litigation is involved. (2) Definitions. (A) Retainer. A retainer is a sum of money paid to a lawyer to guarantee the lawyer’s future availability. A retainer is not payment for past legal services and is not payment for future services. (B) Flat Fee. A flat fee is a sum of money paid to a lawyer for all legal services to be provided in the representation. A flat fee may be termed “non-refundable.” - 45 - (C) Advance Fee. An advanced fee is a sum of money paid to the lawyer against which the lawyer will bill the client as legal services are provided. (f) Contingent Fees. As to contingent fees: (1) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subdivision (f)(3) or by law. A contingent fee agreement shallmust be in writing and shallmust state the method by which the fee is to be determined, including the percentage or percentages that shallwill accrue to the lawyer in the event of settlement, trial, or appeal,; litigation and other expenses to be deducted from the recovery,; and whether suchthose expenses are to be deducted before or after the contingent fee is calculated. UponOn conclusion of a contingent fee matter, the lawyer shallmust provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination. (2) Every lawyer who accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in any action, claim, or proceeding wherebyin which the lawyer’s compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shallmust do so only where suchthe fee arrangement is reduced to a written contract, signed by the client, and by a lawyer for the lawyer or for the law firm representing the client. No lawyer or firm may participate in the fee without the consent of the client in writing. Each participating lawyer or law firm shallmust sign the contract with the client and shallmust agree to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of the other lawyer or law firm involved. The client shallmust be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of this rule shallwill apply to such fee contracts. (3) A lawyer shallmust not enter into an arrangement for, charge, or collect: (A) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or (B) a contingent fee for representing a defendant in a criminal case. - 46 - (4) A lawyer who enters into an arrangement for, charges, or collects any fee in 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 of another, including products liability claims, wherebyin which the compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shallmust do so only under the following requirements: (A) The contract shallmust contain the following provisions: (i) "The undersigned client has, before signing this contract, received and read the statement of client’s rights and understands each of the rights set forth thereinin it. The undersigned client has signed the statement and received a signed copy to refer to while being represented by the undersigned attorney(s)lawyer(s)." (ii) "This contract may be cancelled by written notification to the attorneylawyer at any time within 3 business days of the date the contract was signed, as shown below, and if cancelled the client shall not beis not obligated to pay any fees to the attorney for the work performed during that time. If the attorneylawyer has advanced funds to others in representation of the client, the attorneylawyer is entitled to be reimbursed for such amounts asthat the attorneylawyer has reasonably advanced on behalf of the client." (B) The contract for representation of a client in a matter set forth in subdivision (f)(4) may provide for a contingent fee arrangement as agreed upon by the client and the lawyer, except as limited by the following provisions: (i) Without prior court approval as specified below, any contingent fee that exceeds the following standards shall beare presumed, unless rebutted, to be clearly excessive: a. Before the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action: 1. 33 1/3% of any recovery up to $1 million; plus - 47 - 2. 30% of any portion of the recovery between $1 million and $2 million; plus 3. 20% of any portion of the recovery exceeding $2 million. b. After the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment: 1. 40% of any recovery up to $1 million; plus 2. 30% of any portion of the recovery between $1 million and $2 million; plus 3. 20% of any portion of the recovery exceeding $2 million. c. If all defendants admit liability at the time of filing their answers and request a trial only on damages: 1. 33 1/3% of any recovery up to $1 million; plus 2. 20% of any portion of the recovery between $1 million and $2 million; plus 3. 15% of any portion of the recovery exceeding $2 million. d. An additional 5% of any recovery after institution of any appellate proceeding is filed or post-judgmentpostjudgment relief or action is required for recovery on the judgment. (ii) If any client is unable to obtain a lawyer of the client’s choice because of the limitations set forth in subdivision (f)(4)(B)(i), the client may petition the court in which the matter would be filed, if litigation is necessary, or if that court will not accept jurisdiction for the fee approval, the circuit court in which the cause of action arose, for approval of any fee contract between the client and a lawyer of the client’s choosing. Authorization will be given if the court determines the client has a complete understanding of the client’s rights and the terms of the proposed contract. The application for authorization of the - 48 - contract can be filed as a separate proceeding before suit or simultaneously with the filing of a complaint. Proceedings on the petition may occur before service on the defendant and this aspect of the file may be sealed. A petition under this subdivision must contain a certificate showing service on the client and, if the petition is denied, a copy of the petition and order denying the petition must be served on The Florida Bar in Tallahassee by the member of the bar who filed the petition. Authorization of such a contract does not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive under subdivisions (a) and (b). (iii) Subject to the provisions of 4-1.5(f)(4)(B)(i) and (ii), a lawyer who enters into an arrangement for, charges, or collects any fee in an action or claim for medical liability wherebyin which the compensation is dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shallmust provide the language of article I, section 26 of the Florida Constitution to the client in writing and shallmust orally inform the client that: a. Unless waived, in any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000 of all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants. b. If a lawyer chooses not to accept the representation of a client under the terms of article I, section 26 of the Florida Constitution, the lawyer shallmust advise the client, both orally and in writing, of alternative terms, if any, under which the lawyer would accept the representation of the client, as well as the client’s right to seek representation by another lawyer willing to accept the representation under the terms of article I, section 26 of the Florida Constitution, or a lawyer willing to accept the representation on a fee basis that is not contingent. c. If any client desires to waive any rights under article I, section 26 of the Florida Constitution in order to obtain a lawyer of the client’s choice, a client may do so by waiving such rights in - 49 - writing, under oath, and in the form provided in this rule. The lawyer shallmust provide each client a copy of the written waiver and shallmust afford each client a full and complete opportunity to understand the rights being waived as set forth in the waiver. A copy of the waiver, signed by each client and lawyer, shallmust be given to each client to retain, and the lawyer shallmust keep a copy in the lawyer’s file pertaining to the client. The waiver shallmust be retained by the lawyer with the written fee contract and closing statement under the same conditions and requirements provided in 4-1.5(f)(5). WAIVER OF THE CONSTITUTIONAL RIGHT PROVIDED IN ARTICLE I, SECTION 26 OF THE FLORIDA CONSTITUTION On November 2, 2004, voters in the State of Florida approved The Medical Liability Claimant's Compensation Amendment that was identified as Amendment 3 on the ballot. The amendment is set forth below: The Florida Constitution Article I, Section 26 is created to read "Claimant's right to fair compensation." In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000, exclusive of reasonable and customary costs and regardless of the number of defendants. This provision is self-executing and does not require implementing legislation. The undersigned client understands and acknowledges that (initial each provision): _____I have been advised that signing this waiver releases an important constitutional right; and _____I have been advised that I may consult with separate counsel before signing this waiver; and that I may request a hearing before a judge to further explain this waiver; and _____By signing this waiver I agree to an increase in the attorney fee that might otherwise be owed if the constitutional provision listed above is not waived. Without prior court approval, the increased fee that I agree to may be up to the - 50 - maximum contingency fee percentages set forth in Rule Regulating The Florida Bar 4-1.5(f)(4)(B)(i). Depending on the circumstances of my case, the maximum agreed upon fee may range from 33 1/3% to 40% of any recovery up to $1 million; plus 20% to 30% of any portion of the recovery between $1 million and $2 million; plus 15% to 20% of any recovery exceeding $2 million; and _____I have three (3) business days following execution of this waiver in which to cancel this waiver; and _____I wish to engage the legal services of the lawyers or law firms listed below in an action or claim for medical liability the fee for which is contingent in whole or in part upon the successful prosecution or settlement thereof, but I am unable to do so because of the provisions of the constitutional limitation set forth above. In consideration of the lawyers’ or law firms’ agreements to represent me and my desire to employ the lawyers or law firms listed below, I hereby knowingly, willingly, and voluntarily waive any and all rights and privileges that I may have under the constitutional provision set forth above, as apply to the contingency fee agreement only. Specifically, I waive the percentage restrictions that are the subject of the constitutional provision and confirm the fee percentages set forth in the contingency fee agreement; and _____I have selected the lawyers or law firms listed below as my counsel of choice in this matter and would not be able to engage their services without this waiver; and I expressly state that this waiver is made freely and voluntarily, with full knowledge of its terms, and that all questions have been answered to my satisfaction. ACKNOWLEDGMENT BY CLIENT FOR PRESENTATION TO THE COURT The undersigned client hereby acknowledges, under oath, the following: I have read and understand this entire waiver of my rights under the constitutional provision set forth above. I am not under the influence of any substance, drug, or condition (physical, mental, or emotional) that interferes with my understanding of this entire waiver in which I am entering and all the consequences thereof. I have entered into and signed this waiver freely and voluntarily. - 51 - I authorize my lawyers or law firms listed below to present this waiver to the appropriate court, if required for purposes of approval of the contingency fee agreement. Unless the court requires my attendance at a hearing for that purpose, my lawyers or law firms are authorized to provide this waiver to the court for its consideration without my presence. Dated this ______ day of ________________, ____. By: __________________________________ CLIENT Sworn to and subscribed before me this _____ day of _______________, _____ by ___________________________, who is personally known to me, or has produced the following identification: _________________________________. __________________________________ Notary Public My Commission Expires: Dated this ______ day of ________________, ____. By: __________________________________ ATTORNEY (C) Before a lawyer enters into a contingent fee contract for representation of a client in a matter set forth in this rule, the lawyer shallmust provide the client with a copy of the statement of client’s rights and shallmust afford the client a full and complete opportunity to understand each of the rights as set forth thereinin it. A copy of the statement, signed by both the client and the lawyer, shallmust be given to the client to retain and the lawyer shallmust keep a copy in the client’s file. The statement shallmust be retained by the lawyer with the written fee contract and closing statement under the same conditions and requirements as subdivision (f)(5). (D) As to lawyers not in the same firm, a division of any fee within subdivision (f)(4) shallmust be on the following basis: (i) To the lawyer assuming primary responsibility for the legal services on behalf of the client, a minimum of 75% of the total fee. - 52 - (ii) To the lawyer assuming secondary responsibility for the legal services on behalf of the client, a maximum of 25% of the total fee. Any fee in excess of 25% shallwill be presumed to be clearly excessive. (iii) The 25% limitation shallwill not apply to those cases in which 2 or more lawyers or firms accept substantially equal active participation in the providing of legal services. In suchthose circumstances counsel shallmust apply to the court in which the matter would be filed, if litigation is necessary, or if such court will not accept jurisdiction for the fee division, the circuit court whereinin which the cause of action arose, for authorization of the fee division in excess of 25%, based upon a sworn petition signed by all counsel that shall discloses in detail those services to be performed. The application for authorization of such athe contract may be filed as a separate proceeding before suit or simultaneously with the filing of a complaint, or within 10 days of execution of a contract for division of fees when new counsel is engaged. Proceedings thereonon these applications may occur before service of process on any party and this aspect of the file may be sealed. Authorization of suchthe contract shallwill not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive. An application under this subdivision shallmust contain a certificate showing service on the client and, if the application is denied, a copy of the petition and order denying the petition shallmust be served on The Florida Bar in Tallahassee by the member of the bar who filed the petition. Counsel may proceed with representation of the client pending court approval. (iv) The percentages required by this subdivision shall beare applicable after deduction of any fee payable to separate counsel retained especially for appellate purposes. (5) In the event there is a recovery, upon the conclusion of the representation, the lawyer shallmust prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating lawyer or law firm. A copy of the closing statement shallmust be executed by all participating lawyers, as well as the client, and each shallmust receive a copy. Each participating lawyer shallmust retain a copy of the written fee contract and closing statement for 6 years after execution of the closing statement. Any contingent fee contract and closing statement shallmust be available for inspection at reasonable times by the - 53 - client, by any other person upon judicial order, or by the appropriate disciplinary agency. (6) In cases in which the client is to receive a recovery that will be paid to the client on a future structured or periodic basis, the contingent fee percentage shallmust be calculated only on the cost of the structured verdict or settlement or, if the cost is unknown, on the present money value of the structured verdict or settlement, whichever is less. If the damages and the fee are to be paid out over the long term future schedule, this limitation does not apply. No attorney may negotiate separately with the defendant for that attorney’s fee in a structured verdict or settlement when separate negotiations would place the attorney in a position of conflict. (g) Division of Fees Between Lawyers in Different Firms. Subject to the provisions of subdivision (f)(4)(D), a division of fee between lawyers who are not in the same firm may be made only if the total fee is reasonable and: (1) the division is in proportion to the services performed by each lawyer; or (2) by written agreement with the client: (A) each lawyer assumes joint legal responsibility for the representation and agrees to be available for consultation with the client; and (B) the agreement fully discloses that a division of fees will be made and the basis upon which the division of fees will be made. (h) Credit Plans. A lawyer or law firm may accept payment under a credit plan. No higher fee shall be charged and no additional charge shall be imposed by reason of a lawyer’s or law firm’s participation in a credit plan.Lawyers may charge clients the actual charge the credit plan imposes on the lawyer for the client's transaction. (i) Arbitration Clauses. A lawyer shallmust not make an agreement with a potential client prospectively providing for mandatory arbitration of fee disputes without first advising that person in writing that the potential client should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such mandatory arbitration provisions. A lawyer shall not make an agreement containing such mandatory arbitration provisions unless the agreement contains the following language in bold print: - 54 - NOTICE: This agreement contains provisions requiring arbitration of fee disputes. Before you sign this agreement you should consider consulting with another lawyer about the advisability of making an agreement with mandatory arbitration requirements. Arbitration proceedings are ways to resolve disputes without use of the court system. By entering into agreements that require arbitration as the way to resolve fee disputes, you give up (waive) your right to go to court to resolve those disputes by a judge or jury. These are important rights that should not be given up without careful consideration. STATEMENT OF CLIENT’S RIGHTS FOR CONTINGENCY FEES Before you, the prospective client, arrange a contingent fee agreement with a lawyer, you should understand this statement of your rights as a client. This statement is not a part of the actual contract between you and your lawyer, but, as a prospective client, you should be aware of these rights: 1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of money recovered in a case. You, the client, have the right to talk with your lawyer about the proposed fee and to bargain about the rate or percentage as in any other contract. If you do not reach an agreement with 1 lawyer you may talk with other lawyers. 2. Any contingent fee contract must be in writing and you have 3 business days to reconsider the contract. You may cancel the contract without any reason if you notify your lawyer in writing within 3 business days of signing the contract. If you withdraw from the contract within the first 3 business days, you do not owe the lawyer a fee although you may be responsible for the lawyer’s actual costs during that time. If your lawyer begins to represent you, your lawyer may not withdraw from the case without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer. Often, your lawyer must obtain court approval before withdrawing from a case. If you discharge your lawyer without good cause after the 3-day period, you may have to pay a fee for work the lawyer has done. 3. Before hiring a lawyer, you, the client, have the right to know about the lawyer’s education, training, and experience. If you ask, the lawyer should tell you specifically about the lawyer’s actual experience dealing with cases similar to - 55 - yours. If you ask, the lawyer should provide information about special training or knowledge and give you this information in writing if you request it. 4. Before signing a contingent fee contract with you, a lawyer must advise you whether the lawyer intends to handle your case alone or whether other lawyers will be helping with the case. If your lawyer intends to refer the case to other lawyers, the lawyer should tell you what kind of fee sharing arrangement will be made with the other lawyers. If lawyers from different law firms will represent you, at least 1 lawyer from each law firm must sign the contingent fee contract. 5. If your lawyer intends to refer your case to another lawyer or counsel with other lawyers, your lawyer should tell you about that at the beginning. If your lawyer takes the case and later decides to refer it to another lawyer or to associate with other lawyers, you should sign a new contract that includes the new lawyers. You, the client, also have the right to consult with each lawyer working on your case and each lawyer is legally responsible to represent your interests and is legally responsible for the acts of the other lawyers involved in the case. 6. You, the client, have the right to know in advance how you will need to pay the expenses and the legal fees at the end of the case. If you pay a deposit in advance for costs, you may ask reasonable questions about how the money will be or has been spent and how much of it remains unspent. Your lawyer should give a reasonable estimate about future necessary costs. If your lawyer agrees to lend or advance you money to prepare or research the case, you have the right to know periodically how much money your lawyer has spent on your behalf. You also have the right to decide, after consulting with your lawyer, how much money is to be spent to prepare a case. If you pay the expenses, you have the right to decide how much to spend. Your lawyer should also inform you whether the fee will be based on the gross amount recovered or on the amount recovered minus the costs. 7. You, t [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4358652. Public record. Not legal advice.