AMENDMENT TO RULES REGULATING FLORIDA BAR, SC03-705.

• Decision Date: 20 May 2004
• Docket Number: No. SC03-705.,SC03-705.
• Citation: 875 So.2d 448
• Parties: AMENDMENT TO THE RULES REGULATING THE FLORIDA BAR.
• Court: Florida Supreme Court

875 So.2d 448

AMENDMENT TO THE RULES REGULATING THE FLORIDA BAR.

No. SC03-705.

Supreme Court of Florida.

May 20, 2004.

Miles A. McGrane III, President, Coral Gables, FL; Kelly Overstreet Johnson, President-elect, Tallahassee, FL; John F. Harkness, Jr., Executive Director, Paul F. Hill, General Counsel, John Anthony Boggs, Director of Lawyer Regulation, Lori Holcomb, Elizabeth Tarbert, Jeffrey Cohen and Kimberly Ashby, The Florida Bar, Tallahassee, FL; Jennifer Coberly, Chair, Rules Committee, Miami, FL; and Ian M. Comisky, Chair, Rules Committee, Philadelphia, PA, for Petitioner.

John Hume of Hume & Johnson, Coral Springs, FL; John A. Weiss of Weiss and Etkin, Tallahassee, FL; Patricia S. Etkin and Richard B. Liss of Weiss and Etkin, Plantation, FL; Randolph Braccialarghe, Nova Law Center, Fort Lauderdale, FL; Charles L. Curtis, Fort Lauderdale, FL; and Ronna Friedman Young of Sachs, Sax, & Klein, P.A., Boca Raton, FL, Responding.

PER CURIAM.

The Florida Bar (the Bar) has filed a petition proposing amendments to the Rules Regulating the Florida Bar. We have jurisdiction. See art. V, § 15, Fla. Const. The petition is filed through the authority of the Board of Governors of The Florida Bar, who approved the proposed amendments. The Bar states that this filing represents a compilation of rule proposals developed over a span of time from May 2001 to February 2003. Except for certain technical corrections, the proposed amendments were published in The Florida Bar News on March 1, 2003, and a corrected notice was published in the March 15, 2003, edition of The Florida Bar News.¹ Two comments to the proposals were filed. The Bar responded to the comments.

AMENDMENTS

After considering the proposed amendments and hearing oral argument, we adopt the majority of the Bar's proposals. Below we provide brief descriptions of the proposals we have adopted and our reasons for declining to adopt certain amendments.

Rules 1-3.6, Delinquent Members, and 1-7.3, Membership Fees, are amended to deem as delinquent members who have not paid costs or made required restitution within time periods specified in diversion cases or disciplinary proceedings. Rule 1-7.3(a), Membership Fees Requirement, is also amended to clarify existing language to characterize a member who has not paid costs or restitution as delinquent and to preclude the acceptance of membership fees from such members.

Rule 1-3.8, Right to Inventory, is amended to broaden the applicability of the rule to include the use of court-appointed inventory attorneys in cases involving involuntary leave of absence due to military service, catastrophic illness, or injury.

Rule 2-9.4, Ethics, is amended to create new subdivision (e), Disqualification as Attorney Due to Conflict, which contains provisions moved from rule 3-7.11(i). This new subdivision codifies a specific rule addressing disqualification due to conflict of interest for particular attorneys involved in proceedings for the issuance of opinions on professional ethics.

We decline to adopt the Bar's proposed amendment to Rule of Discipline 3-5.1, Types of Discipline, Generally, and instead adopt alternate language which we add to Rule 3-7.6, Proceedings Before a Referee, for the reasons explained below. In Florida Bar v. Frederick, 756 So.2d 79, 85 n. 2 (Fla.2000), the Court concluded that the parol evidence rule does not apply to bar disciplinary proceedings. Nevertheless, we recognized the potential for abuse in that context, and we directed the Bar to propose a rule addressing the Court's concerns. The Court explained:

In holding that the parol evidence rule does not apply to the disciplinary action brought by the Bar seeking disciplinary measures against [the subject attorney], we recognize that it would ordinarily apply in a civil action between [the subject attorney] and his clients seeking enforcement of the fee contract. Insofar as both types of actions can involve monetary sanctions or awards, we perceive a potential for abuse of the disciplinary process. Specifically, aggrieved clients in contractual fee disputes with their attorneys could "get around" the parol evidence rule simply by seeking restitution through a disciplinary action, as opposed to monetary relief through a civil action. The same would not be true for aggrieved attorneys—the only recourse they would have in a contractual fee dispute with their clients would be through a civil action, where the parol evidence rule would ordinarily apply. Such unequal footing between attorneys and clients in contractual fee disputes appears to be at least unfair and at most unconscionable, especially considering that attorney-client fee contracts in Florida are preferred, if not required, to be in writing. See, e.g., R. Regulating Fla. Bar 4-1.5(e)-(f). Moreover, that the parol evidence rule could be so easily avoided by aggrieved clients as described above is at odds with the principle that the parol evidence rule is not simply a rule of evidence but, to the contrary, a fundamental rule of substantive law.

... [W]e do recognize the potential for abuse in this context, and therefore direct the Bar to craft and submit to this Court a proposed rule addressing these concerns.

Frederick, 756 So.2d at 85 n. 2 (citations omitted).

The Bar's proposed amendment to rule 3-5.1 provides:

Competent evidence other than that contained in a written fee contract may be used in proceedings conducted under the Rules Regulating The Florida Bar to determine a lawyer's compliance with those rules. However, any finding based on such evidence shall not be admissible in civil proceedings concerning the validity or amount of the legal fees that were at issue in the disciplinary proceeding.

Similar language is proposed for subdivision (a)(2) of rule 4-1.5, Fees for Legal Services.

Our concerns with the Bar's proposal are twofold. First, the rule subdivisions in which the amendments are proposed govern forfeiture of fees and illegal, prohibited, or clearly excessive fees; however, Frederick did not involve an illegal, prohibited, or clearly excessive fee, or a fee forfeiture. Second, the Court's intent in Frederick was to limit the use of parol evidence to vary the terms of a contract between an attorney and client. The Bar's proposal appears to specify that more rather than less parol evidence may be admitted in Bar disciplinary proceedings.

In light of the foregoing, we decline to adopt the Bar's proposal and instead adopt the following language making the parol evidence rule applicable to Bar discipline proceedings:

Parol Evidence. Evidence other than that contained in a written attorney-client contract may not be used in proceedings conducted under the Rules Regulating The Florida Bar to vary the terms of that contract, except competent evidence other than that contained in a written fee contract may be used only if necessary to resolve issues of excessive fees or excessive costs.

Because the aforementioned changes to the Bar's proposal applies the parol evidence rule to all Bar proceedings that deal with attorney-client contracts (not just proceedings related to fees), we conclude that the new language should not be added to rule subdivisions that exclusively discuss forfeiture and the reasonableness of fees. Having reviewed the rules, we add the new language to rule 3-7.6, Proceedings Before a Referee. We conclude that a provision limiting the admission of parol evidence in Bar disciplinary proceedings would be more appropriate in this rule. The remaining subdivisions are amended accordingly. In adopting this subdivision, we emphasize that the referee is not precluded from finding an excessive fee on the face of the contract.

Subdivision (d) of Rule 3-5.3, Diversion of Disciplinary Cases to Practice and Professionalism Enhancement Programs; Approval of Diversion, is amended to clarify that this subdivision applies to an offer of diversion in a disciplinary case pending at staff or grievance committee level investigations. Subdivision (h), Diversion at Trial Level, is amended to provide that the procedures relating to the approval of conditional pleas under Rule 3-7.9, Consent Judgment, shall apply to diversion at the trial level.

In subchapter 3-6, Employment of Certain Attorneys or Former Attorneys, we adopt an amended version of the Bar's proposed new Rule 3-6.1(c), Employment by Former Subordinates. The Bar's proposed subdivision (c) would prohibit a lawyer who is disbarred or suspended from practice from being employed or supervised by another attorney who was previously supervised by that disbarred or suspended lawyer at the time of, or subsequent to, the acts giving rise to the order for a period of three years from the entry of the order pursuant to which the suspension, disciplinary resignation, or disbarment became effective. In its petition, the Bar explained that in several instances it has observed that a suspended lawyer hires a new associate to continue his or her law practice during a short-term suspension, and the suspended lawyer thereafter "works for" that new associate during his or her suspension. As soon as the suspension ends, the former supervisor-turned-employee returns to the role of supervisor. We agree with the Bar that the potential and real abuse that exists when the suspended lawyer influences the judgment of the associate necessitates an amendment to this rule. However, if the suspended attorney is reinstated to the practice of law before the three-year prohibition expires, we see no need for the ban on employment or supervision to continue. Accordingly, we adopt new subdivision (c), which prohibits a lawyer who is disbarred, suspended, or has taken a disciplinary resignation from practice from being employed or supervised by another attorney who was previously supervised by that disbarred, suspended, or resigned lawyer at the time of, or subsequent to, the acts giving rise to the disciplinary order for a period of three years...