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In re Amendments to Rule Regulating Florida Bar 4-1.19

Supreme Court of Florida

May 18, 2017

IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA BAR 4-1.19 AND FLORIDA FAMILY LAW RULE OF PROCEDURE 12.745 (COLLABORATIVE LAW PROCESS).

         Original Proceeding - Rules Regulating The Florida Bar and Florida Family Law Rules of Procedure

          Judge Laurel Moore Lee, Chair, Family Law Rules Committee, Tampa, Florida; William J. Schifino, Jr., President, The Florida Bar, Tampa, Florida; Michael J. Higer, President-elect, The Florida Bar, Miami, Florida; Michelle R. Suskauer, President-elect Designate, West Palm Beach, Florida; and John F. Harkness, Jr., Executive Director, Lori S. Holcomb, Director, Division of Ethics and Consumer Protection, Elizabeth Clark Tarbert, Ethics Counsel, and Krys Godwin, Staff Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner

          Robert J. Merlin of Robert J. Merlin, P.A., Coral Gables, Florida; Judge Christine Greider, Chair, Steering Committee on Families and Children in the Court, Naples, Florida; Judge Rodney Smith, Chair, Committee on Alternative Dispute Resolution Rules and Policy, Miami, Florida; Susan C. Marvin, Chief, Alternative Dispute Resolution Center, Tallahassee, Florida; and Edward G. Rubinoff of Kutner, Rubinoff & Moss, P.A., Coconut Grove, Florida, Responding with Comments

          PER CURIAM.

         This matter is before the Court for consideration of proposed amendments to the Rules Regulating the Florida Bar (Bar Rules) and the Florida Family Law Rules of Procedure (Family Law Rules), pertaining to the collaborative law process in family law cases. We have jurisdiction. See art. V, §§ 2(a), 15, Fla. Const.

         BACKGROUND

         In In re Amendments to the Florida Family Law Rules of Procedure, 84 So.3d 257 (Fla. 2012), this Court considered proposed amendments to the Family Law Rules addressing the collaborative law process. As we explained in our 2012 opinion, the collaborative law process is a contractual, voluntary, and nonadversarial dispute resolution process, occurring between represented parties, to resolve some family law matters. Id. at 258. Although we commended the Family Law Rules Committee (Rules Committee) for its study of the collaborative law process, we declined to adopt the proposed rule at that time in part because there was "the possibility of legislative action addressing the use of the collaborative law process in Florida." Id.

         Since our decision, in 2016, the Florida Legislature adopted the Collaborative Law Process Act. See ch. 2016-93, Laws of Fla. The purpose of the Act was to create "a uniform system of practice" for a collaborative law process in family law cases to encourage "the peaceful resolution of disputes and the early settlement of pending litigation through voluntary settlement procedures" and to preserve the working relationship between parties to a family law dispute. See id. § 3. The Legislature also provided that the provisions of the Act would not take effect "until 30 days after the Florida Supreme Court adopts rules of procedure and professional responsibility consistent with this act." See id. § 8.

         Consistent with this charge, The Florida Bar and the Rules Committee have jointly filed a petition requesting that the Court adopt new Bar Rule 4-1.19 (Collaborative Law Process in Family Law) and new Family Law Rule 12.745 (Collaborative Law Process). The Florida Bar Board of Governors unanimously approved the proposed rules for submission to the Court. The Bar and the Rules Committee published formal notice of their intent to file a petition in The Florida Bar News and directed that comments be filed with the Court; the Court received one comment in favor of the proposed amendments.[1] In November 2016, we issued an order requesting that the Steering Committee on Families and Children in the Court and the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy also file comments addressing the proposals. The Bar and the Rules Committee were requested to file a response to these comments.

         The Court heard oral argument in this matter. At oral argument, concerns were raised about the amount of costs and fees that may be incurred in this voluntary process. To address those concerns, following oral argument, we issued an order directing the Bar and the Rules Committee to file an amended proposal for Bar Rule 4-1.19, or other amendments to the Rules of Professional Conduct as necessary, to include provisions requiring collaborative lawyers to inform clients considering participation in the collaborative law process as to the fees or costs the client may reasonably expect to incur, including the lawyer's fees and reasonable fees for the neutral mental health and financial professionals who would be retained to participate in the process. The Bar and the Rules Committee submitted their amended proposal that adds subdivision (a)(8) to Bar Rule 4-1.19 as well as a corresponding comment explaining the obligation to inform the client about costs and fees, including those of all professionals.

         We have fully considered the joint petition, the comments and the responses, and the amended proposal. In accordance with the Act and the Legislature's request that the Court adopt rules of procedure and professional responsibility consistent with the Act, we adopt new Bar Rule 4-1.19 and new Family Law Rule 12.745 as revised by the Bar and the Rules Committee, with some modifications. We discuss the more significant aspects of the new rules below.

         AMENDMENTS

         New Bar Rule 4-1.19 (Collaborative Law Process in Family Law) outlines the professional conduct required of an attorney representing a party in the collaborative law process. Subdivision (a) (Duty to Explain Process to Prospective Client) of the rule requires a lawyer to obtain a client's informed consent to proceed in the collaborative law process; this requires the lawyer to provide the client with sufficient information about the collaborative law process. Among the eight items listed in subdivision (a), the lawyer is required to advise his or her client as to the benefits and risks associated with the collaborative law process to resolve family law matters; other alternatives to the collaborative law process; that participation in the collaborative law process is voluntary, and the client may unilaterally terminate his or her participation for any reason; and the limitations on the lawyer's ability to represent the client in subsequent legal proceedings if the collaborative law process is terminated. We note, in particular, that lawyers have an obligation to inform their clients of the fees or costs the client may reasonably expect to incur in the collaborative law process, including the lawyer's fee and reasonable fees for mental health and financial professionals. This obligation is codified in Bar Rule 4-1.19(a)(8) that sets forth the obligation of the lawyer to explain the "fees and costs the client can reasonably expect to incur in the collaborative law process, including the fees of the lawyers, mental health professionals, and financial professionals."

         Also Bar Rule 4-1.19, subdivision (b) (Written Agreement Required) provides that a lawyer may not represent a client in the collaborative law process unless all lawyers and clients participating in the process have signed a written agreement. Subdivision (c) (Duty to Address Domestic Violence) provides that, before a lawyer agrees to represent a client in the collaborative law process, the lawyer must reasonably inquire whether the client has a coercive or violent relationship with another party in the family law matter; the lawyer must also make reasonable efforts throughout the process to continue to assess whether a coercive or violent relationship exists. A lawyer may not represent a party in the collaborative law process if the lawyer reasonably believes the client has a history of any coercive or violent relationship with another party unless certain criteria are met.

         New Family Law Rule 12.745 (Collaborative Law Process) outlines procedures for the collaborative law process, including in instances where a family law proceeding is pending before a court and the parties elect to enter into the collaborative law process.[2] Subdivision (b) (Collaborative Law Process) describes how the collaborative law process is initiated, how it may be concluded or terminated, and how a party participating in the collaborative law process may discharge his or her attorney or how the attorney may withdraw from representation. Additionally, subdivision (d) (Alternative Dispute Resolution Permitted) of rule 12.745 provides that the rule shall not be construed to prohibit parties from using any other permissible form of alternative dispute resolution to reach a settlement on any of the issues in the collaborative law process. Indeed, collaborative law is only one of several types of alternative dispute resolution available to parties in family law cases. See, e.g., Fla. Fam. L. R. P. 12.740 (Family Mediation); 12.741 (Mediation Rules); 12.742 (Parenting Coordination). Finally, subdivision (f) (Disqualification of Collaborative Lawyer and Lawyers in Associated Law Firm) provides that a lawyer representing a party in the collaborative law process, or any lawyer working in the same law firm, is disqualified from representing the party in a court proceeding related to the collaborative matter except in specifically identified circumstances.

         CONCLUSION

         Accordingly, we amend the Rules Regulating the Florida Bar and the Florida Family Law Rules of Procedure as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The comments are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective July 1, 2017, at 12:01 a.m.

         It is so ordered.

          LABARGA, CJ, and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ, concur

         THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

         APPENDIX

         RULES REGULATING THE FLORIDA BAR

         RULE 4-1.19 COLLABORATIVE LAW PROCESS IN FAMILY LAW

         (a) Duty to Explain Process to Prospective Client. A lawyer must obtain the informed consent of a prospective client in a family law matter to proceed in the collaborative law process after providing the prospective client with sufficient information about ...


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