IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR (BIENNIAL PETITION).
Proceeding - Rules Regulating The Florida Bar
F. Harkness, Jr., Executive Director, Michael J. Higer,
President, Michelle R. Suskauer, President-Elect, William J.
Schifino, Jr., Past President, Lori S. Holcomb, Director,
Division of Ethics and Consumer Protection, and Elizabeth
Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee,
Florida, for Petitioner
O. Wells of Wells & Wells, P.A., Coral Gables, Florida;
and Timothy P. Chinaris, Nashville, Tennessee, Responding
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.
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.
fully considering the Bar's petition, the comments, and
the response, we adopt the majority of the Bar's
proposals, with some modifications,  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.
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.
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.
we amend Bar Rule 1-12.1 (Amendment to Rules; Authority;
Notice; Procedures; Comments), as proposed by the
Bar-subdivision (g) (Notice of Intent to File Petition) will
now require that the Bar's notice of its intent to file a
petition to amend the Bar Rules, published in The Florida
Bar News and on its website, identify the rules to be
amended and state in general terms the nature of the proposed
amendments; the full text of the Bar's proposals will be
published only on the Bar's website. Also in Bar Rule
1-12.1, we amend subdivision (h) (Action by the Supreme Court
of Florida) to provide that a summary of the Court's
final action on a petition to amend the Bar Rules will be
reported in The Florida Bar News and on the
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" 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
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"
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
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
Rule 5-1.1 (Trust Accounts), we amend subdivisions (a)(1)
(Nature of Money or Property Entrusted to Attorney; Trust
Account Required; Location of Trust Account; Commingling
Prohibited), (a)(2) (Nature of Money or Property Entrusted to
Attorney; Compliance with Client Directives), (g)(1)(D)
(Interest on Trust Accounts (IOTA) Program; Definitions;
Eligible Institution), and (g)(5) (Interest on Trust Accounts
(IOTA) Program; Eligible Institution Participation in IOTA)
to permit lawyers to maintain trust accounts in federally
insured credit unions. We amend subdivision (g)(4) (Interest
on Trust Accounts (IOTA) Program; Notice to Foundation) to
direct lawyers to the Bar's website for The 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.
adopt a new Bar Rule 6-3.7 (Inactive Status), to allow board
certified members of the Bar to apply for a temporary
inactive status in certain circumstances. Subdivision (a)
(Purpose) of the new rule provides that the inactive status
is available to eligible members who apply and are qualified
for such status under the provisions of the rule. Subdivision
(b) (Applicability) outlines six categories of eligible
members. These include board certified members appointed or
elected to serve as a judicial officer; we have revised the
Bar's proposal in subdivision (b)(1) to include
administrative law judges in the list of "judicial
officers." Other categories of members eligible for
inactive status include: law professors teaching in an
accredited law school or graduate law course who agree not to
practice if granted inactive status; professional neutrals,
including mediators, arbitrators, or voluntary trial
resolution judges, who agree not to practice law if granted
inactive status; active duty military personnel; members who
are unable to practice law due to a "unique substantial
and material hardship, medical or otherwise"; and,
during the two years immediately following the effective date
of the rule, members who voluntarily relinquished their board
certification before the effective date of the rule, but who
would otherwise be eligible for inactive status may be
granted such status. Subdivision (c) (Qualifications)
outlines the qualifications for maintaining board certified
inactive status. Any Bar member granted board certified
inactive status must maintain an active membership in The
Florida Bar, obtain the continuing legal education credit
that would be required for recertification in their practice
area, and comply with the applicable rules and policies for
board certification. Subdivision (d) (Revocation or
Relinquishment of Board Certified Inactive Status) provides
that the Board of Legal Specialization and Education (BLSE)
may revoke a member's board certified inactive status if
the member fails to comply with the policies. On revocation,
the member cannot use the phrase "board certified
inactive"; the member also cannot use the phrase
"board certified" unless he or she is reactivated
to board certification. Alternatively, a board certified
inactive member is required to notify the BLSE within ninety
days if he or she no longer qualifies for board certified
inactive status, or no longer wishes to retain that status.
The member must immediately cease using the phrase
"board certified inactive, " and either apply to
reactivate their board certification or relinquish the
certification. Finally, subdivision (e) (Reactivation to
Board Certified Status and Recertification) outlines the
procedures for seeking reactivation of board certification
adopt a new Subchapter 6-31 (Standards for Board
Certification in International Litigation and Arbitration),
outlining standards for board certification in the field of
International Litigation and Arbitration. This subchapter
includes four new Bar Rules. Bar Rule 6-31.1 (Generally)
provides that a member in good standing with The Florida Bar,
who is eligible to practice law in Florida and meets the
standards prescribed in Subchapter 6-31, may be issued a
certificate identifying the lawyer as board certified in
International Litigation and Arbitration. Bar Rule 6-31.2
(Definitions) provides definitions for the terms
"International Litigation and Arbitration, "
"Practice of Law, " and "International
Litigation and Arbitration Certification Committee." Bar
Rule 6-31.3 (Minimum Standards) outlines the minimum
standards of practice, experience, and education required to
earn a certification in International Litigation and
Arbitration. And Bar Rule 6-31.4 (International Litigation
and Arbitration Recertification) describes the requirements
for seeking recertification in International Litigation and
Arbitration at the conclusion of a five-year cycle.
amend Bar Rule 10-2.1 (Generally), as proposed by the Bar,
first in subdivision (b) (Paralegal or Legal Assistant) to
add language authorizing a paralegal to work under the
supervision of an out-of-state lawyer or foreign lawyer
engaged in the authorized practice of law in Florida. We also
amend subdivision (e) (Bar Counsel) to include in the
definition of "Bar Counsel" Unlicensed Practice of
Law (UPL) counsel and UPL staff counsel.
Rule 10-9.1 (Procedures for Issuance of Advisory Opinions on
the Unlicensed Practice of Law) is amended, as proposed by
the Bar, to address procedures for requesting and issuing
proposed advisory opinions on the unlicensed practice of law.
Subdivision (b) (Requests for Advisory Opinions) is reworded
to provide that a petitioner may request a formal advisory
opinion concerning activity that may constitute the
unlicensed practice of law by submitting a question to the
Bar's UPL Department. We also amend subdivision (b) to
make clear that the request must be in writing, include all
of the operative facts, and ask whether the activity
constitutes the unlicensed practice of law. We amend
subdivision (c), renamed "Limitations on Advisory
Opinions, " to include that no advisory opinion may be
rendered as to any matter that is currently the subject of an
unlicensed practice of law investigation or grievance
investigation by the Bar. And we amend subdivision (g)
(Service and Judicial Review of Proposed Advisory Opinions),
pertaining to proceedings in this Court to review proposed
advisory opinions issued by the Standing Committee on UPL.
The petitioner or any other interested party may file either
a brief or a memorandum in response to the proposed advisory
opinion. The Standing Committee's response, and any
reply, may also be in the form of either a brief or a
amend several rules within Chapter 12 of the Bar Rules,
proposed by the Bar, which, together with the amendments to
Bar Rule 1-7.5 discussed herein, expand the existing
eligibility requirements and allow more lawyers to serve as
emeritus lawyers, providing pro bono legal services to the
community under the supervision of an approved legal aid
organization. The Bar proposed these changes based on
recommendations from the Florida Commission on Access to
Civil Justice. As amended, this Chapter will now permit
inactive or retired Bar members, inactive or retired lawyers
who practiced in any other state or territory of the United
States or the District of Columbia, former judges, current or
former law professors, and authorized house counsel to serve
as emeritus lawyers and perform this important service.
amend a number of rules within Chapter 16 of the Bar Rules
(Foreign Legal Consultancy Rule), and add a new Bar Rule
16-1.7 (Annual Sworn Statement). Among other changes in this
Chapter, Bar Rule 16-1.2, renamed "General Certification
Regulations, " is amended to change some of the
requirements for certification as a foreign legal consultant,
such that a foreign lawyer applying for certification must
demonstrate that he or she has engaged in the practice of law
in a foreign country for not less than three of the five
years immediately preceding the application; he or she must
not have been disciplined for professional misconduct by the
bar or courts of any jurisdiction within the last seven
years; and he or she must not have been denied admission to
practice before the courts in any jurisdiction based upon the
applicant's character and fitness during the ten-year
period immediately preceding the application. We have deleted
existing language in the rule requiring applicants to be over
twenty-six years of age.
in Bar Rule 16-1.3 (Activities), we amend subdivision (a)
(Rendering Legal Advice), as recommended by the Bar; however,
we decline to adopt the proposed amendments in subdivision
(b) (Representing Status as Member of The Florida Bar), which
would serve to delete the requirement that foreign legal
consultants provide clients a letter disclosing the extent of
their professional liability insurance coverage, as well as
the fact that the client will not have access to the
Clients' Security Fund in any discipline case against the
foreign lawyer. We believe these disclosures serve an
important role in protecting clients.
we amend several rules in Chapter 17 of the Bar Rules
(Authorized House Counsel Rule), as proposed by the Bar, to
allow both lawyers licensed to practice law in any United
States jurisdiction other than Florida, and those authorized
to practice as a lawyer or counselor in a foreign
jurisdiction, to serve as authorized house counsel. Within
Chapter 17, we delete existing Bar Rule 17-1.7 (Immunity from
Prosecution) in its entirety, because this rule is no longer
necessary. However, because the rule amendments we adopt in
this case will now permit foreign lawyers to serve as
authorized house counsel, such foreign lawyers who are duly
registered as authorized house counsel under Chapter 17 of
the Bar Rules will not be subject to prosecution for the
unlicensed practice of law for acting as counsel to a
business organization prior to the effective date of these
the Court amends the Rules Regulating the Florida Bar as set
forth in the appendix to this opinion. New language is
indicated by underscoring; deletions are indicated by
struck-through type. The comments are offered for explanation
and guidance only and are not adopted as an official part of
the rules. The amendments shall become effective on February
1, 2018, at 12:01 a.m.
LABARGA, CJ, and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON,
and LAWSON, JJ, concur
FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE
EFFECTIVE DATE OF THESE AMENDMENTS.
1-3.2 MEMBERSHIP CLASSIFICATIONS
Members in Good Standing.
Members of The Florida Bar in good standing shall means only those persons licensed
to practice law in Florida who have paid annual membership
fees or dues for the current year and
who are not retired, resigned, delinquent, on the
inactive list for incapacity, or suspended
Members of The Florida Bar who have elected inactive status,
who have paid annual membership fees for the current year,
and who are not retired, resigned, delinquent, suspended, or
on the inactive list for incapacity, are considered to be in
good standing only for purposes of obtaining a certificate of
good standing and for no other purpose. A certificate of good
standing issued to an inactive member will reflect the
member's inactive status.
Conditionally Admitted Members.
Supreme Court of Florida may admit a person with a prior
history of drug, alcohol, or psychological problems to
membership in The Florida Bar and impose conditions of
probation as the court deems appropriate upon that member. The period of probation
shallwill be no longer than
5 years, or for suchan
indefinite period of time as the court may deems appropriate by conditions in
its order. The conditions may include, but not be limited to,
participation in a rehabilitation program, periodic blood and
urine analysis, periodic psychological examinations, or
supervision by another member of The Florida Bar. The
probation shallwill be
monitored by The Florida Bar and the costs thereof shall be paid by the member on probation.
A failure to observe the conditions of probation or a finding
of probable cause as to conduct of the member committed
during the period of probation may terminate the probation
and subject the member to all available disciplinary
sanctions. Proceedings to determine compliance with
conditions of admission shallwill be processed in the same
manner as matters of contempt provided elsewhere in these
Rules Regulating The Florida Bar. If necessary, the court may
assign a judicial referee to take testimony, receive
evidence, and make findings of fact in the manner prescribed
in the rule concerning procedures before a referee. The
findings of the referee may be appealed as provided in the
rule for procedures before the supreme court.
members of The Florida Bar shall
means only those members who have properly elected
to be classified as inactive in the manner elsewhere
(1) - (3) [No Change]
(4) not hold themselves out as being able to practice law in
Florida or render advice on matters of Florida law unless
certified as an emeritus lawyer under chapter 12 of these
(5) not hold any position that requires the person to be a
licensed Florida attorneylawyer;
(6)- (7) [No Change]
(8) certify upon election of inactive
status that they will comply with all applicable restrictions
and limitations imposed on inactive members of The Florida
Bar, unless certified as an emeritus lawyer under chapter
12 of these rules.
of an inactive member to comply with all these
requirements thereof shall
beis cause for disciplinary action.
inactive member may, at any time, apply for reinstatement to
active membership in good standing to become
eligible to practice law in Florida in the manner
provided in rule 1-3.7.
1-7.5 RETIRED, INACTIVE, DELINQUENT
member who is retired, inactive, or delinquent shall not practiceis prohibited from
practicing law in this state until reinstated as
provided in these rules, except retired or inactive
members who are certified as emeritus lawyers under chapter
12 of these rules.
1-12.1 AMENDMENT TO RULES; AUTHORITY;
NOTICE; PROCEDURES; COMMENTS
Authority to Amend.
board of governors of The Florida Bar shall
havehas the authority to amend chapters 7 and
9, as well as the standards for the individual areas of
certification within chapter 6 of these Rules Regulating The
Florida Bar, consistent with the notice, publication, and
comments requirements provided below. Only the Supreme Court
of Florida shall havehas the
authority to amend all other chapters of these Rules
Regulating The Florida Bar.
Board Review of Proposed Amendments.
board of governors shallwill
review proposed amendments by referral of the proposal to an
appropriate board committee thereof for substantive review. After substantive
review, an appropriate committee of the board shallwill review the proposal for
consistency with these rules and the policies of The Florida
Bar. After completion of review, a recommendation concerning
the proposal shallwill be
made to the board.
Notice of Proposed Board Action.
of the proposed action of the board on a proposed amendment
shallwill be given in an
edition of The Florida Bar NewsNews and on The Florida Bar website
that is published prior to the
meeting of the board at which the board action is taken. The
notice shallwill identify
the rule(s) to be amended and shall
state in general terms the nature of the proposed amendments.
Comments by Members.
member may request a copy of the proposed amendments and may
file written comments concerning them. The comments
shallmust be filed with the
executive director sufficiently in advance of the board
meeting to allow for copying and
distribution to the members of the board.
Approval of Amendments.
to other than chapters 7 and 9, as well as the standards for
the individual areas of certification within chapter 6 of
these Rules Regulating The Florida Bar shallmust be by petition to the Supreme
Court of Florida. Petitions to amend these Rules Regulating
The Florida Bar may be filed by the board of governors or by
50 members in good standing, provided that any amendments
proposed by members of the bar shallmust be filed 90 days after filing
them with The Florida Bar.
Notice of Intent to File Petition.
of intent to file a petition to amend these Rules Regulating
The Florida Bar shallwill be
published in The Florida Bar NewsNews
and on The Florida Bar website at least 30 days before the
filing of the petition. The notice shall set
forth the text of the proposed amendmentswill identify
the rule(s) to be amended, state in general terms the nature
of the proposed amendments, state the date the petition will
be filed, and state that any comments or objections must be
filed within 30 days of filing the petition. The full text of
the proposed amendment(s) will be published on The Florida
Bar website. A copy of all comments or objections
shallmust be served on the executive
director of The Florida Bar and any persons who may have made
an appearance in the matter.
Action by the Supreme Court of Florida.
court shallwill review all
proposed amendments filed under this rule and suchany amendments shallwill not become effective until an
order is issued approving them. FinalA summary of final action of the
court shallwill be reported
in The Florida Bar NewsNews
and on The Florida Bar website.
used in these rules the following words or terms shall have the meaning herein set forth below unless
their use thereof shall
clearly indicates a different meaning:
counsel is a member of The Florida Bar representing The
Florida Bar in any proceeding under these rules.
The Board or the Board of Governors.
board or the board of governors is the board of
governors of The Florida Bar.
Complainant or Complaining Witness.
complainant or complaining witness is any person who has
complained of the conduct of any member of The Florida Bar to
any officer or agency of The Florida Bar.
This Court or the Court.
court or the court is the Supreme Court of Florida.
Court of this State.
of this state is a state court authorized and
established by the constitution or laws of the state of
Diversion to Practice and Professionalism Enhancement
to practice and professionalism enhancement programs is
removal of a disciplinary matter from the disciplinary system
and placement of the matter in a skills enhancement program
in lieu of a disciplinary sanction.
committee is the executive committee of the board of
governors of The Florida Bar.
director is the executive director of The Florida Bar.
Inquiry. Inquiry is a written communication
received by bar counsel questioning the conduct of a member
of The Florida Bar.
Practice and Professionalism Enhancement Programs.
and professionalism enhancement programs are programs
operated either as a diversion from disciplinary action or as
a part of a disciplinary sanction that are intended to
provide educational opportunities to members of the bar for
enhancing skills and avoiding misconduct allegations.
cause is a finding by an authorized agency that
there is cause to believe that a member of The Florida Bar is
guilty of misconduct justifying disciplinary action.
Referral to Practice and Professionalism Enhancement
to practice and professionalism enhancement programs is
placement of a lawyer in skills enhancement programs as
a disciplinary sanction.
is a judge or retired judge appointed to conduct
proceedings as provided under these rules.
is a member of The Florida Bar or an
attorneylawyer subject to these rules who is
accused of misconduct or whose conduct is under
counsel is a lawyer employee of The Florida Bar
designated by the executive director and authorized by these
Rules Regulating The Florida Bar to approve formal
complaints, conditional guilty pleas for consent judgments,
and diversion recommendations and to make appointment of bar
Chief Branch Discipline Counsel.
branch discipline counsel is the counsel in charge of a
branch office of The Florida Bar. Any counsel employed by The
Florida Bar may serve as chief branch discipline counsel at
the direction of the regularly assigned chief branch
discipline counsel or staff counsel.
designated reviewer is a member of the board of governors
responsible for review and other specific duties as assigned
with respect to a particular grievance committee or matter.
The designated reviewer for a special grievance committee
will be selected by the president and approved by the board.
adjudication is a decision by the authorized
disciplinary authority or court issuing a sanction for
professional misconduct that is not subject to judicial
review except on direct appeal to the Supreme Court of the
3-7.5 PROCEDURES BEFORE THE BOARD OF
Review by the Designated Reviewer.
of grievance committee action recommending either diversion
to a practice and professionalism enhancement program or
finding no probable cause, no probable cause with a letter of
advice, minor misconduct, or probable cause shallwill be given to the designated reviewer for
review. The designated reviewer may request grievance
committee reconsideration or refer the matter to the
disciplinary review committee of the board of governors
within 30 days of notice of grievance committee action. The
request for a grievance committee
reconsideration or referral to the disciplinary review
committee shallmust be in writing and
shallmust be submitted to bar
counsel. For purposes of this subdivision letters, memoranda,
handwritten notes, facsimile documents, and e-mail
shall constitute communication
Requests for Grievance Committee Reconsideration. If the
designated reviewer requests grievance committee
reconsideration, bar counsel shall
forwards the request to the chair of the grievance committee
and shall gives notice to the
respondent and complainant that the request has been made. If
the grievance committee agrees to reconsider the matter, the
rule prescribing procedures before a grievance committee
Referrals to Disciplinary Review Committee and Board of
Governors. If the designated reviewer refers the matter to
the disciplinary review committee, bar counsel shall prepares and submits a discipline agenda
item for consideration by the committee. Bar counsel
shallmust give notice to respondent
and complainant that the designated reviewer has made the
referral for review.
Nature of Disciplinary Review Committee and Board of
Governors Review. The Florida Bar is a party in disciplinary
proceedings and has no authority to adjudicate rights in
those proceedings. Any such review on
referral from a designated reviewer is in
the nature of consultation on pending litigation and
therefore is not subject to
intervention by persons outside the relationship between the
bar and its counsel.
Effect of Failure to Timely Make the Request for
Reconsideration or Referral for Review. If the designated
reviewer fails to make the request for reconsideration or
referral within the time prescribed, the grievance committee
action shall becomes final.
Review of Grievance Committee Matters.
disciplinary review committee shall
reviews those grievance committee matters referred
to it by a designated reviewer and shall
make a reports to the board. The disciplinary
review committee may confirm, reject, or amend the
recommendation of the designated reviewer in whole or in
part. The report of the disciplinary review committee
shall beis final unless
overruled by the board. Recommendations of the disciplinary
review committee may include:
(7) [No Change]
Notice of Board Action. Bar counsel shallmust give notice of board action to
the respondent, complainant, and grievance committee.
Finding of No Probable Cause.
finding of no probable cause by the board shall beis final and no further
proceedings shall be hadmay be
conducted in the matter by The Florida Bar unless a
reason arises at a later time to re-open the file.
Control of Proceedings.
counsel, however appointed, shall
beis subject to the direction of the board at all
times. The board, in the exercise of its discretion as the
governing body of The Florida Bar, has the power to terminate
disciplinary proceedings before a referee prior to the
receipt of evidence by the referee, whether suchthese proceedings have been instituted
upon a finding of probable cause by
the board or a grievance committee.
Filing Service on Board of Governors.
matters to be filed with or served upon the board shallmust
be addressed to the board of governors and filed with the
Custodian of Bar Records.
Bar counsel, however appointedThe executive
director or his designees shall beare
the custodian of the official records of The Florida Bar.
3-7.16 LIMITATION ON TIME TO BRING COMPLAINTOPEN INVESTIGATION
Time for Inquiries, Initiating
Investigation of Complaints, and
Reopened Cases. Inquiries raised or
complaints presented by or to The Florida Bar under these
rules shall be commenced
Initial Complaint or Investigation. A complainant must make a
written inquiry to The Florida Bar within 6 years from the
time the matter giving rise to the inquiry or complaint is
discovered or, with due diligence, should have been
discovered. The Florida Bar must open an investigation
initiated by The Florida Bar within 6 years from the time the
matter giving rise to the investigation is discovered or,
with due diligence, should have been discovered. A reopened disciplinary investigation shall not be
barred by this rule if the investigation is reopened within 1
year of the date on which the matter was closed, except that
reopened investigations based on deferrals made in accord
with bar policy and as authorized elsewhere in these Rules
Regulating The Florida Bar shall not be barred if reopened
within 1 year of the conclusion of the civil, criminal, or
other proceedings on which deferral was based.
Re-opened Investigations. A re-opened disciplinary
investigation is not time barred by this rule if the
investigation is re-opened within 1 year after the date on
which the matter was closed, except that a re-opened
investigation based on a deferral made in accordance with bar
policy and as authorized elsewhere in these Rules Regulating
The Florida Bar is not barred if reopened within 1 year after
actual notice of the conclusion of the civil, criminal, or
other proceedings on which the deferral was based.
Deferred Investigations. A disciplinary investigation which
began with the opening of a discipline file and bar inquiries
to a respondent within the 6-year time period as described in
this rule and was then deferred in accordance with bar policy
and the Rules Regulating The Florida Bar, is not time barred
under this rule if a grievance committee finds probable cause
and the bar files its formal complaint within 1 year after
actual notice of the conclusion of the civil, criminal, or
other proceedings on which deferral was based.
Exception for Theft or Conviction of a Felony Criminal
shall beis no limit on the
time in which to present, reopen, or bring a matter alleging
theft or conviction of a felony criminal offense by a member
of The Florida Bar.
Tolling Based on Fraud, Concealment, or
matters covered by this rule where it can be shown that
fraud, concealment, or intentional misrepresentation of fact
prevented the discovery of the matter giving rise to the
inquiry or complaint, tThe limitation of time in which
to bring or reopen an inquiry or
complaint within this rule shall beis
tolled. where it can be shown that
fraud, concealment, or intentional misrepresentation of fact
prevented the discovery of the matter giving rise to the
inquiry or complaint.
raised or complaints presented by or to The Florida Bar about
the conduct of a constitutional officer who is required to be
a member in good standing of The Florida Bar shallmust be commenced within 6 years
after the constitutional officer vacates office.
4 RULES OF PROFESSIONAL CONDUCT PREAMBLE: A LAWYER'S
or "believes" denotes that the person involved
actually supposed the fact in question to be true. A
person's belief may be inferred from circumstances.
or "consultation" denotes communication of
information reasonably sufficient to permit the client to
appreciate the significance of the matter in question.
in writing, " when used in reference to the informed
consent of a person, denotes informed consent that is given
in writing by the person or a writing that a lawyer promptly
transmits to the person confirming an oral informed consent.
See "informed consent" below. If it is not feasible
to obtain or transmit the writing at the time the person
gives informed consent, then the lawyer must obtain or
transmit it within a reasonable time.
or "law firm" denotes a lawyer or lawyers in a law
partnership, professional corporation, sole proprietorship,
or other association authorized to practice law; or lawyers
employed in the legal department of a corporation or other
or "fraudulent" denotes conduct having a purpose to
deceive and not merely negligent misrepresentation or failure
to apprise another of relevant information.
consent" denotes the agreement by a person to a proposed
course of conduct after the lawyer has communicated adequate
information and explanation about the material risks of and
reasonably available alternatives to the proposed course of
" "known, " or "knows" denotes
actual knowledge of the fact in question. A person's
knowledge may be inferred from circumstances.
denotes a person who is a member of The Florida Bar or
otherwise authorized to practice in any
court of the State of Florida.
denotes a member of a partnership and a shareholder in a law
firm organized as a professional corporation, or a member of
an association authorized to practice law.
or "reasonably" when used in relation to conduct by
a lawyer denotes the conduct of a reasonably prudent and
belief" or "reasonably believes" when used in
reference to a lawyer denotes that the lawyer believes the
matter in question and that the circumstances are such that
the belief is reasonable.
should know" when used in reference to a lawyer denotes
that a lawyer of reasonable prudence and competence would
ascertain the matter in question.
denotes the isolation of a lawyer from any participation in a
matter through the timely imposition of procedures within a
firm that are reasonably adequate under the circumstances to
protect information that the isolated lawyer is obligated to
protect under these rules or other law.
when used in reference to degree or extent denotes a material
matter of clear and weighty importance.
denotes a court, an arbitrator in a binding arbitration
proceeding, or a legislative body, administrative agency, or
other body acting in an adjudicative capacity. A legislative
body, administrative agency, or other body acts in an
adjudicative capacity when a neutral official, after the
presentation of evidence or legal argument by a party or
parties, will render a binding legal judgment directly
affecting a party's interests in a particular matter.
or "written" denotes a tangible or electronic
record of a communication or representation, including
handwriting, typewriting, printing, photostating,
photography, audio or video recording, and electronic
communications. A "signed" writing includes an
electronic sound, symbol or process attached to or logically
associated with a writing and executed or adopted by a person
with the intent to sign the writing.
4-1.8 CONFLICT OF INTEREST; PROHIBITED AND
Business Transactions With or Acquiring Interest Adverse to
lawyer shall notis prohibited from
entering into a business transaction with a client or
knowingly acquireacquiring an
ownership, possessory, security, or other pecuniary interest
adverse to a client, except a lien granted by law to secure a
lawyer's fee or expenses, unless:
(3) [No Change]
Using Information to Disadvantage of Client.
lawyer shall not useis prohibited
from using information relating to representation of a
client to the disadvantage of the client unless the client
gives informed consent, except as permitted or required by
Gifts to Lawyer or Lawyer's Family.
lawyer shall notis prohibited from
soliciting any substantial gift from
a client, including a testamentary gift, or preparepreparing on behalf of a client an
instrument giving the lawyer or a person related to the
lawyer any substantial gift unless
the lawyer or other recipient of the gift is related to the
client. For purposes of this subdivision, related persons
include a spouse, child, grandchild, parent, grandparent, or
other relative with whom the lawyer or the client maintains a
close, familial relationship.
Acquiring Literary or Media Rights.
to the conclusion of representation of a client, a lawyer
shall not make or negotiateis
prohibited from making or negotiating an agreement
giving the lawyer literary or media rights to a portrayal or
account based in substantial part on information relating to
Financial Assistance to Client.
lawyer shall not provideis prohibited
from providing financial assistance to a client in connection
with pending or contemplated litigation, except that:
(2) [No Change]
Compensation by Third Party.
lawyer shall not acceptis prohibited
from accepting compensation for representing a client from
one other than the client unless:
(3) [No Change]
Settlement of Claims for Multiple Clients.
lawyer who represents 2 or more clients shall not participateis prohibited from
participating in making an aggregate settlement of the
claims of or against the clients, or in a criminal case an
aggregated agreement as to guilty or nolo contendere pleas,
unless each client gives informed consent, in a writing
signed by the client. The lawyer's disclosure
shallmust include the
existence and nature of all the claims or pleas involved and
of the participation of each person in the settlement.
Limiting Liability for Malpractice.
lawyer shall not makeis
prohibited from making an agreement prospectively
limiting the lawyer's liability to a client for
malpractice unless permitted by law and the client is
independently represented in making the agreement. A lawyer
shall not settleis prohibited
from settling a claim for such
liability for malpractice with an unrepresented
client or former client without first advising that person in
writing that independent representation is appropriate in
connection therewithmaking the
Acquiring Proprietary Interest in Cause of Action.
lawyer shall not acquireis
prohibited from acquiring a proprietary interest in the
cause of action or subject matter of litigation the lawyer is
conducting for a client, except that the lawyer may:
(2) [No Change]
Representation of Insureds.
lawyer undertakes the defense of an insured other than a
governmental entity, at the expense of an insurance company,
in regard to an action or claim for personal injury or for
property damages, or for death or loss of services resulting
from personal injuries based upon
tortious conduct, including product liability claims, the
Statement of Insured Client's Rights shallmust be provided to the insured at
the commencement of the representation. The lawyer
shallmust sign the statement
certifying the date on which the statement was provided to
the insured. The lawyer shallmust keep a copy of the signed
statement in the client's file and shallmust retain a copy of the signed
statement for 6 years after the representation is completed.
The statement shallmust be
available for inspection at reasonable times by the insured,
or by the appropriate disciplinary agency. Nothing in the
Statement of Insured Client's Rights shall be deemed to augments or
detracts from any substantive or ethical duty of a
lawyer or affect the extradisciplinary consequences of
violating an existing substantive legal or ethical duty; nor
shalldoes any matter set
forth in the Statement of Insured Client's Rights give
rise to an independent cause of action or create any
presumption that an existing legal or ethical duty has been
OF INSURED CLIENT'S RIGHTS
insurance company has selected a lawyer to defend a lawsuit
or claim against you. This Statement of Insured Client's
Rights is being given to you to assure that you are aware of
your rights regarding your legal representation. This
disclosure statement highlights many, but not all, of your
rights when your legal representation is being provided by
the insurance company.
Directing the Lawyer. If your policy, like most
insurance policies, provides for the insurance company to
control the defense of the lawsuit, the lawyer will be taking
instructions from the insurance company. Under suchthese policies, the lawyer cannot
act solely on your instructions, and at the same time, cannot
act contrary to your interests. Your preferences should be
communicated to the lawyer.
Litigation Guidelines. Many insurance companies
establish guidelines governing how lawyers are to proceed in
defending a claim. Sometimes those guidelines affect the
range of actions the lawyer can take and may require
authorization of the insurance company before certain actions
are undertaken. You are entitled to know the guidelines
affecting the extent and level of legal services being
provided to you. UponOn
request, the lawyer or the insurance company should either
explain the guidelines to you or provide you with a copy. If
the lawyer is denied authorization to provide a service or
undertake an action the lawyer believes necessary to your
defense, you are entitled to be informed that the insurance
company has declined authorization for the service or action.
Violations. If at any time you believe that your lawyer
has acted in violation of your rights, you have the right to
report the matter to The Florida Bar, the agency that
oversees the practice and behavior of all lawyers in Florida.
For information on how to reach The Florida Bar call (850)
561-5839 or you may access the Barbar at www.FlaBar.orgwww.floridabar.org.
YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS, PLEASE ASK FOR AN
undersigned hereby certifies that
this Statement of Insured Client's Rights has been
provided to ..... (name of insured/client(s)) .....
..... (mail/hand delivery) ..... at ..... (address of
insured/client(s) to which mailed or delivered, ) on ..... (date) ......
Imputation of Conflicts.
lawyers are associated in a firm, a prohibition in the
foregoing subdivisions (a) through (i) that applies to any
one of them shall
applyapplies to all of them.
transactions between client and lawyer
lawyer's legal skill and training, together with the
relationship of trust and confidence between lawyer and
client, create the possibility of overreaching when the
lawyer participates in a business, property, or financial
transaction with a client. The requirements of subdivision
(a) must be met even when the transaction is not closely
related to the subject matter of the representation. The rule
applies to lawyers engaged in the sale of goods or services
related to the practice of law. See rule 4-5.7. It does not
apply to ordinary fee arrangements between client and lawyer,
which are governed by rule 4-1.5, although its requirements
must be met when the lawyer accepts an interest in the
client's business or other nonmonetary property as
payment for all or part of a fee. In addition, the rule does
not apply to standard commercial transactions between the
lawyer and the client for products or services that the
client generally markets to others, for example, banking or
brokerage services, medical services, products manufactured
or distributed by the client, and utilities services. In
suchthese types of
transactions the lawyer has no advantage in dealing with the
client, and the restrictions in subdivision (a) are
unnecessary and impracticable. Likewise, subdivision (a) does
not prohibit a lawyer from acquiring or asserting a lien
granted by law to secure the lawyer's fee or expenses.
(a)(1) requires that the transaction itself be fair to the
client and that its essential terms be communicated to the
client, in writing, in a manner that can be reasonably
understood. Subdivision (a)(2) requires that the client also
be advised, in writing, of the desirability of seeking the
advice of independent legal counsel. It also requires that
the client be given a reasonable opportunity to obtain
such advice. Subdivision (a)(3)
requires that the lawyer obtain the client's informed
consent, in a writing signed by the client, both to the
essential terms of the transaction and to the lawyer's
role. When necessary, the lawyer should discuss both the
material risks of the proposed transaction, including any
risk presented by the lawyer's involvement, and the
existence of reasonably available alternatives and should
explain why the advice of independent legal counsel is
desirable. See terminology (definition of informed consent).
risk to a client is greatest when the client expects the
lawyer to represent the client in the transaction itself or
when the lawyer's financial interest otherwise poses a
significant risk that the lawyer's representation of the
client will be materially limited by the lawyer's
financial interest in the transaction. Here the lawyer's
role requires that the lawyer must comply, not only with the
requirements of subdivision (a), but also with the
requirements of rule 4-1.7. Under that rule, the lawyer must
disclose the risks associated with the lawyer's dual role
as both legal adviser and participant in the transaction,
such as the risk that the lawyer will structure the
transaction or give legal advice in a way that favors the
lawyer's interests at the expense of the client.
Moreover, theThe lawyer
also must obtain the client's informed consent.
In some cases, the lawyer's interest may
be such that rule 4-1.7 will preclude the lawyer from
seeking the client's consent to the transaction
because of the lawyer's interest.
client is independently represented in the transaction,
subdivision (a)(2) of this rule is inapplicable, and the
subdivision (a)(1) requirement for full disclosure is
satisfied either by a written disclosure by the lawyer
involved in the transaction or by the client's
independent counsel. The fact that the client was
independently represented in the transaction is relevant in
determining whether the agreement was fair and reasonable to
the client as subdivision (a)(1) further requires.
lawyer may accept a gift from a client, if the transaction
meets general standards of fairness and if the lawyer does
not prepare the instrument bestowing the gift. For example, a
simple gift such as a present given at a holiday or as a
token of appreciation is permitted. If a client offers the
lawyer a more substantial gift, subdivision (c) does not
prohibit the lawyer from accepting it, although such athe gift may be voidable by the client
under the doctrine of undue influence, which treats client
gifts as presumptively fraudulent. In any event, due to
concerns about overreaching and imposition on clients, a
lawyer may not suggest that a substantial gift be made to the lawyer or for the
lawyer's benefit, except where the lawyer is related to
the client as set forth in subdivision (c). If effectuation
of a substantial gift requires
preparing a legal instrument such as a will or conveyance,
however, the client should have the detached advice that
another lawyer can provide and the lawyer should advise the
client to seek advice of independent counsel. Subdivision (c)
recognizes an exception where the client is related by blood
or marriage to the donee or the gift is not
rule does not prohibit a lawyer from seeking
to have the lawyer or a partner or associate of the
lawyer namedfrom serving as personal
representative of the client's estate or toin another potentially lucrative fiduciary
position in connection with a client's estate planning. A
lawyer may prepare a document that appoints the lawyer or a
person related to the lawyer to a fiduciary office if the
client is properly informed, the appointment does not violate
rule 4-1.7, the appointment is not the product of undue
influence or improper solicitation by the lawyer, and the
client gives informed consent, confirmed in
writing.Nevertheless, such appointments will
be subject to the general conflict of interest provision in
rule 4-1.7 when there is a significant risk that the
lawyer's interest in obtaining the appointment will
materially limit the lawyer's independent professional
judgment in advising the client concerning the choice of a
personal representative or other fiduciary. In
obtaining the client's informed consent to the conflict,
the lawyer should advise the client in writing concerning
the nature and extent of the lawyer's
financial interest in the appointment, as well as the
availability of alternative candidates for the
positionwho is eligible to serve as a fiduciary, that
a person who serves as a fiduciary is entitled to
compensation, and that the lawyer may be eligible to receive
compensation for serving as a fiduciary in addition to any
attorneys' fees that the lawyer or the lawyer's firm
may earn for serving as a lawyer for the fiduciary.
agreement by which a lawyer acquires literary or media rights
concerning the conduct of the representation creates a
conflict between the interests of the client and the personal
interests of the lawyer. Measures suitable in the
representation of the client may detract from the publication
value of an account of the representation. Subdivision (d)
does not prohibit a lawyer representing a client in a
transaction concerning literary property from agreeing that
the lawyer's fee shallwill consist of a share in
ownership in the property if the arrangement conforms to rule
4-1.5 and subdivision (a) and (i).
may not subsidize lawsuits or administrative proceedings
brought on behalf of their clients, including making or
guaranteeing loans to their clients for living expenses,
because to do so would encourage clients to pursue lawsuits
that might not otherwise be brought and because suchfinancial assistance gives lawyers
too great a financial stake in the litigation. These dangers
do not warrant a prohibition on a lawyer advancing a client
court costs and litigation expenses, including the expenses
of diagnostic medical examination used for litigation
purposes and the reasonable costs of obtaining and presenting
evidence, because these advances are virtually
indistinguishable from contingent fees and help ensure access
to the courts. Similarly, an exception allowing lawyers
representing indigent clients to pay court costs and
litigation expenses regardless of whether these funds will be
repaid is warranted.
paying for lawyer's services
are frequently asked to represent a client under
circumstances in which a third person will compensate the
lawyer, in whole or in part. The third person might be a
relative or friend, an indemnitor (such as a liability
insurance company), or a co-client (such as a corporation
sued along with one or more of its employees). Because
third-party payers frequently have interests that differ from
those of the client, including interests in minimizing the
amount spent on the representation and in learning how the
representation is progressing, lawyers are prohibited from
accepting or continuing suchthese representations unless the
lawyer determines that there will be no interference with the
lawyer's independent professional judgment and there is
informed consent from the client. See also rule 4-5.4(d)
(prohibiting interference with a lawyer's professional
judgment by one who recommends, employs or pays the lawyer to
render legal services for another).
it will be sufficient for the lawyer to obtain the
client's informed consent regarding the fact of the
payment and the identity of the third-party payer. If,
however, the fee arrangement creates a conflict of interest
for the lawyer, then the lawyer must comply with rule 4-1.7.
The lawyer must also conform to the requirements of rule
4-1.6 concerning confidentiality. Under rule 4-1.7(a), a
conflict of interest exists if there is significant risk that
the lawyer's representation of the client will be
materially limited by the lawyer's own interest in the
fee arrangement or by the lawyer's responsibilities to
the third-party payer (for example, when the third-party
payer is a co-client). Under rule 4-1.7(b), the lawyer may
accept or continue the representation with the informed
consent of each affected client, unless the conflict is
nonconsentable under that subdivision. Under rule 4-1.7(b),
the informed consent must be confirmed in writing or clearly
stated on the record at a hearing.