In re Amendments to the Rules Regulating the Fla. Bar
| Decision Date | 09 November 2017 |
| Docket Number | No. SC16–1961,SC16–1961 |
| Citation | 229 So.3d 1154 (Mem) |
| Parties | IN RE: AMENDMENTS TO the RULES REGULATING the FLORIDA BAR (BIENNIAL PETITION). |
| Court | Florida Supreme Court |
This matter is before the Court on the petition of The Florida Bar proposing amendments to the Rules Regulating the Florida Bar (Bar Rules). We have jurisdiction. See art. V, § 15, Fla. Const.
The Florida Bar (Bar) has filed its biennial petition proposing both new rules and amendments to a number of existing Bar Rules. The proposals were approved by the Board of Governors of The Florida Bar, and formal notice of the proposed amendments was published in The Florida Bar News. The notice directed interested persons to file their comments directly with the Court. The Court received two comments; the Bar filed a response to the comments.
After fully considering the Bar's petition, the comments, and the response, we adopt the majority of the Bar's proposals, with some modifications,1 as discussed in this opinion. However, as addressed below, we decline to adopt the Bar's proposed amendments to Bar Rule 4-7.14 (Potentially Misleading Advertisements) at this time, and we refer this matter back to the Bar for further consideration. We discuss the new rules and more significant rule amendments below.
First, Bar Rule 1-3.2 (Membership classifications) is amended in subdivision (a) (Members in Good Standing), as proposed by the Bar, to allow members of the Bar who have voluntarily selected inactive status to be classified as "members in good standing." New subdivision (a)(2) provides that members of the Bar who have elected inactive status, paid their annual memberships fees, and who are not retired, resigned, delinquent, suspended, or inactive because of incapacity, are considered members in "good standing" for purposes of obtaining a certificate of good standing and for no other purpose.
We amend Bar Rule 1-7.5 (Retired, Inactive, Delinquent Members), as recommended by the Bar, to authorize retired or inactive Bar members to practice law as an "emeritus lawyer" pursuant to the Emeritus Attorneys Pro Bono Participation Program in Chapter 12 of the Bar Rules. This amendment, and other amendments to the Bar Rules addressed herein, were recommended by the Florida Commission on Access to Civil Justice, and are intended to increase the pool of lawyers authorized to provide pro bono legal services to the community under the supervision of a legal aid organization.
Next, we amend Bar Rule 1-12.1 (Amendment to Rules; Authority; Notice; Procedures; Comments), as proposed by the Bar — subdivision (g) (Notice of Intent to File Petition) will now require that the Bar's notice of its intent to file a petition to amend the Bar Rules, published in The Florida Bar News and on its website, identify the rules to be amended and state in general terms the nature of the proposed amendments; the full text of the Bar's proposals will be published only on the Bar's website. Also in Bar Rule 1-12.1, we amend subdivision (h) () to provide that a summary of the Court's final action on a petition to amend the Bar Rules will be reported in The Florida Bar News and on the Bar's website.
Bar Rule 3-7.16 (Limitation on Time to Bring Complaint) is renamed "Limitation on Time to Open Investigation" and is substantially amended to clarify the limitations period for opening an investigation into allegations of lawyer misconduct. Subdivision (a) is renamed "Time for Initiating Investigation of Complaints and Re-opened Cases," and will now include three new subdivisions. Subdivision (a)(1) (Initial Complaint or Investigation) provides that a complainant must make a written "inquiry"2 to the Bar within six years from the time the matter giving rise to the inquiry or complaint is discovered or should have been discovered. In the case of an investigation initiated by the Bar, the Bar must open the investigation within six years from the time the matter is discovered or should have been discovered. Subdivision (a)(2) (Re-opened Investigations) provides that a re-opened disciplinary investigation is not time barred if the matter is re-opened within one year after it was closed. And subdivision (a)(3) (Deferred Investigations) states that a timely disciplinary investigation that was deferred consistent with Bar policy and the Bar Rules is not time barred if the grievance committee finds probable cause and the Bar files its formal complaint within one year after notice that the civil, criminal, or other proceedings that were the basis for the deferral have concluded. The remaining subdivisions in this rule are also amended as proposed by the Bar.
Bar Rule 4-1.8 (Conflict of Interest; Prohibited and Other Transactions) is amended in subdivision (c) (Gifts to Lawyer or Lawyer's Family) to prohibit a lawyer from soliciting any gift from a client, or from preparing an instrument that gives the lawyer or a member of the lawyer's family any gift. This change was proposed by the Bar in response to a suggestion from the Real Property Probate and Trust Law Section. We also amend the comment to rule 4-1.8 to explain this prohibition, and other subdivisions throughout rule 4-1.8 to clarify language. However, we have revised the Bar's proposal in subdivision (h) (Limiting Liability for Malpractice), as recommended in the comment from Attorney Timothy P. Chinaris, to remove the reference to "prospective" malpractice.
We decline to adopt the Bar's proposal to amend Bar Rule 4-7.14 (Potentially Misleading Advertisements). The Bar proposes amendments to this rule in response to a decision from the United States District Court for the Northern District of Florida, which held, in relevant part, that provisions in Bar Rule 4-7.14(a) broadly prohibiting lawyers who were not board certified from making truthful statements that they "specialize in" or "have expertise in" a particular field of practice were unconstitutional. In response to this decision, the Bar recommended amending the rule in subdivision (a) (Potentially Misleading Advertisements) to add a new subdivision (a)(5), which would prohibit lawyers from using in their advertisements the terms "specialist," "expert," or other variations of those terms unless the lawyer meets one of the four criteria established in subdivisions (a)(5)(A)-(a)(5)(D). The criteria in subdivisions (a)(5)(A), (a)(5)(B), and (a)(5)(C) are similar to those in other parts of rule 4-7.14. However, subdivision (a)(5)(D) would provide that a lawyer may identify as a "specialist" or "expert" if the lawyer's "experience and training demonstrate specialized competence in an area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules"; if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement must include a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by the Bar or another certification program. We are concerned that the Bar's proposal here does not sufficiently address the district court's decision, and that the language requiring that a lawyer's experience be "reasonably comparable" to the Florida Certification Plan will prove to be problematic because it could lead to differing and inconsistent applications. Because we believe that this important issue requires further study, we decline to adopt the Bar's proposed amendments to rule 4-7.14, and we refer this matter to The Florida Bar for additional consideration.
Next, we have made several amendments to Bar Rule 4-7.18 (Direct Contact with Prospective Clients). As proposed by the Bar, subdivision (a) (Solicitation) is amended to provide that the term "solicit" includes contact in person, by telephone, by electronic means that include real-time communication face-to-face, or by any other communication directed to a specific recipient that does not meet the requirements of the rule. Additionally, we amend subdivision (b)(2) (Written Communication) to require that permitted written communications to prospective clients for the purpose of obtaining professional employment must be marked with the label "advertisement" on each separate enclosure, rather than each separate page. If the written communication is a self-mailing brochure or pamphlet, the "advertisement" mark must be included on the address panel of the brochure or pamphlet, on the inside of the brochure or pamphlet, and on each separate enclosure. Subdivision (b)(3) is also amended, as proposed by the Bar, to provide that the requirements contained in subdivision (b)(2) do not apply to communications made at a prospective client's request.
In Bar Rule 5-1.1 (Trust Accounts), we amend subdivisions (a)(1) (), (a)(2) (Nature of Money or Property Entrusted to Attorney; Compliance with Client Directives), (g)(1)(D) (Interest on Trust Accounts (IOTA) Program; Definitions; Eligible Institution), and (g)(5) (Interest on Trust Accounts (IOTA) Program; Eligible Institution Participation in IOTA) to permit lawyers to maintain trust accounts in federally insured credit unions. We amend subdivision (g)(4) (Interest on Trust Accounts (IOTA) Program; Notice to Foundation) to direct lawyers to the Bar's website for The Florida Bar Foundation's current address. We also amend other subdivisions in Bar Rule 5-1.1, as proposed by the Bar. However, we have revised the Bar's proposal in paragraphs seven and eight of the comment to the rule, as recommended in the comment from Mr. Chinaris, to delete the parentheticals included with the citations to case law.
We next adopt a new Bar Rule 6-3.7 (Inactive Status), to allow board certified members of the Bar to apply for a temporary inactive status in...
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