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FLORIDA BAR
PROCEDURES FOR RULING ON QUESTIONS OF ETHICS
Rule 1.
APPLICATION; SCOPE; AND USAGE
These procedures are adopted pursuant to rule 2-9.4, Rules
Regulating The Florida Bar, and govern the manner in
which ethics opinions are issued and reviewed by The Florida Bar. These
procedures do not apply to review of lawyer advertisements. Staff opinions, professional ethics committee
opinions, and opinions of the board of governors are advisory only and shall
not be the basis for action by grievance committees, referees, or the board of
governors except upon application of the respondent in disciplinary
proceedings. If a respondent's defense
includes reliance on the receipt of a staff opinion, ethics counsel may release
to the bar counsel, grievance committee, referee, or board of governors
information concerning the opinion or the request therefor
that would otherwise be confidential under these rules. Information concerning
requests for staff opinions shall be confidential, except as otherwise provided
in bylaw 2-9.4 and these procedures. If
public statements are made by the inquirer about any advisory opinion or
opinion request, confidentiality of the request and the opinion is waived and
ethics counsel may disclose the opinion and information relating to the
request. The advisory opinion process
should not be used to circumvent procedures to adopt or amend Rules Regulating The Florida Bar.ule
Rule 2. AUTHORITY TO
ISSUE ETHICS OPINIONS
Ethics counsel and assistant ethics counsel, the professional ethics committee,
and the board of governors shall have the authority to issue ethics opinions in
the type and manner as set forth in these procedures.
(a) Ethics Counsel and Assistant
Ethics Counsel. Ethics counsel and
assistant ethics counsel may render oral and written opinions that shall be
identified as "staff opinions."
Staff opinions shall be issued only to the members of The Florida Bar in
good standing inquiring as to their own contemplated conduct.
(1) Staff opinions shall not be
issued if it is known to staff that the inquiry:
(A) is made by a person who is not a member of The Florida Bar in good
standing;
(B) concerns past conduct of the inquirer;
(C) involves the conduct of an attorney other than the inquirer;
(D) asks a question of law;
(E) asks a question of rule or court procedure; or
(F) is the subject of a proceeding brought under the Rules Regulating The
Florida Bar.
(2) Staff
may decline to issue an opinion if the inquiry:
(A) is the subject of current litigation; or
(B) asks a question for which there is no previous precedent or underlying bar
policy on which to base an opinion.
(b) Professional Ethics Committee. The professional ethics committee
(hereinafter referred to as PEC) may render written opinions, amend existing
opinions, or withdraw existing opinions:
(1) upon appeal of a
written staff opinion by the inquiring attorney; (2) upon request of the board of governors regarding
application of the Rules of Professional Conduct to a particular set of facts;
(3) upon review of
staff opinions by the PEC; or
(4) upon
review of existing advisory ethics opinions by the PEC.
Opinions of the PEC shall be identified as advisory ethics
opinions.
(c) Board of Governors. The board of governors may render written
opinions, amend existing opinions, or withdraw existing opinions:
(1) upon appeal of a
PEC action; and
(2) upon its own initiative when the board of governors
determines that the application of the Rules of Professional Conduct to a
particular set of facts is likely to be of widespread interest or unusual
importance to a significant number of Florida Bar members.
Opinions of the board of governors shall be identified as advisory ethics
opinions.
Rule 3. PROCEDURES FOR ISSUANCE OF AND
DECLINING TO ISSUE STAFF OPINIONS
(a) Request for Staff Opinion.
(1) Oral Staff
Opinions. Members in good standing
may request an oral staff opinion by calling ethics counsel in Tallahassee, at
1-800-235-8619 or 1-850-561-5780. Oral
opinions may be confirmed in writing only in accord with the procedures for
issuance of written staff opinions. All
information relating to the request for an oral staff opinion shall be
confidential as provided elsewhere in these procedures.
(2) Written Staff
Opinions. Members in good standing
may request a written staff opinion by writing Ethics Counsel, The Florida Bar,
651 E. Jefferson Street, Tallahassee, Florida
32399-2300 or by electronic mail to eto@flabar.org. All requests for written staff opinions shall
set forth all operative facts upon which the request is based and contain an
affirmative statement that the criteria of procedure 2(a) are met. All material and information relating to the
request for a written staff opinion shall be confidential as provided elsewhere
in these procedures.
(b) Declining to Issue Staff Opinions.
Ethics counsel shall decline to issue a staff opinion if any criteria of
procedure 2(a)(1) apply. Ethics counsel may decline to issue a staff
opinion if any criteria of procedure 2(a)(2) apply.
(c) Form for Written Staff Opinion. Written staff opinions shall not reveal the
identity of the inquirer and any other persons or entities involved in the
inquiry.
(d) Appeal to PEC. Members requesting a written staff opinion
may appeal the opinion or the decision not to issue the opinion to the PEC as
provided elsewhere in these procedures.
Appeals to the PEC shall be public information. Oral staff opinions and decisions not to
issue an oral opinion may not be appealed.
(e) Monitoring Written Staff Opinions.
A copy of each written staff opinion shall be provided to the chair of
the PEC who shall assign same to members of the PEC or a subcommittee for
determination of the exercise of the PEC's initiative
review.
Rule 4. PROCEDURE FOR
ISSUANCE OF PEC OPINIONS
(a) Scheduling PEC Review. Timely
appeals, requests of the board of governors, PEC review of staff opinions, and
PEC review of existing advisory ethics opinions shall be scheduled for PEC
consideration at the next meeting of the PEC if the appeal, request, or review
is made more than 30 days in advance of such meeting and any official notice
requirements are met.
(b) Authority of PEC Chair. The
chair of the PEC shall have the discretion to determine the order of the
agenda, time allocated to each matter, and whether personal appearances may be
allowed. In addition, the chair may appoint a subcommittee to conduct the
review.
(c) Notice of PEC Review. In the
event that the PEC decides to consider rendering a written opinion for
publication at the request of the board of governors, upon PEC review of staff
opinions, or upon PEC review of existing formal opinions, the PEC shall publish
in The Florida Bar News an official notice of its intent to consider
rendering a written opinion. The notice shall state the time and place at which
the PEC's deliberations will occur and shall invite
written comments from interested bar members. Initial publication shall
identify the subject matter of the issue and any proposed text, if then
available, and invite written comment. If an opinion is issued, the PEC shall
publish an official notice of the adoption of the advisory ethics opinion in
The Florida Bar News, including the full text of the opinion. Any
subsequent notice shall contain the full text of any revised advisory ethics
opinion.
(d) Comments. Any member in good
standing may file written comment with ethics counsel within 30 days of the
date of publication of official notice of the PEC's
intent to consider rendering a proposed advisory opinion, official notice of
the PEC's adoption of an advisory ethics opinion, or
official notice that the PEC has revised a proposed advisory ethics
opinion. All comments filed under this
subdivision shall be in the form of written statements with relevant facts,
arguments in support, and citations to relevant authority, if any.
(e) Record on Review. Ethics
counsel shall prepare and distribute to the PEC a file on each matter for
review. Any person may request and receive a copy of the file. Ethics counsel may charge a reasonable fee
for providing copies in accord with established, general bar policies.
(1) Appeals of
Written Staff Opinions. The file shall include the original request for the
opinion, the written staff opinion, and the written request for PEC review.
(2) Requests of
Board of Governors. The file shall include the request, relevant material
and authorities, any proposed text for consideration, and any timely comments.
(3) Review of Staff
Opinions. The file shall include the original request for the opinion, the
written staff opinion, and the written request for PEC review.
(4) Review of
Existing Advisory Ethics Opinions. The file shall include the existing
advisory ethics opinion, relevant material and authorities, and the written
request for PEC review.
(f) PEC Action. By majority vote of those present, the PEC may:
(1) Appeals of
Written Staff Opinions.
(A)
affirm the opinion, in whole or in part;
(B)
reverse the opinion, in whole or in part;
(C)
return the opinion to ethics counsel with instructions
as to redrafting; or
(D)
determine to issue, amend, or withdraw an advisory
ethics opinion.
(2) Requests of
Board of Governors.
(A)
decline to issue an advisory ethics opinion;
(B)
agree to issue, amend, or withdraw an advisory ethics
opinion; or
(C)
provide informal information or comments to the
inquirer.
(3) Review of Staff
Opinions.
(A)
affirm the opinion, in whole or in part;
(B)
reverse the opinion, in whole or in part;
(C)
return the opinion to ethics counsel with instructions
as to redrafting; or
(D)
determine to issue, amend, or withdraw an advisory
ethics opinion.
(4) Review of
Existing Advisory Ethics Opinions.
(A)
affirm the advisory ethics opinion, in whole or in
part;
(B)
reverse the advisory opinion, in whole or in part; or
(C)
determine to issue, amend, or withdraw an advisory
ethics opinion.
(g) Notice of PEC Action. Notice
of PEC action shall advise about the procedures for requesting review by the
Board Review Committee on Professional Ethics. Notice of PEC action regarding
formal opinions of the PEC shall be published in The Florida Bar News.
Notice of the PEC's actions shall be provided by
ethics counsel to:
(1) Appeals of
Written Staff Opinions. The inquiring member who appealed a written staff opinion;
(2) Requests of
Board of Governors. The inquirer, all members who timely commented on a referral from
the board of governors and the bar's executive director;
(3) Review of Staff
Opinions. All members who
timely commented on notice of the PEC's review of
staff opinions.
(4) Review of Existing
Advisory Ethics Opinions. All
members who timely commented on notice of the PEC's
review of existing advisory ethics opinions.
(h) Appeal of PEC Action. Any
member who timely commented to the PEC and any member who timely appealed a
written staff opinion may appeal action of the PEC to the board of governors as
provided elsewhere in these procedures.
Rule 5. PROCEDURE FOR REVIEW OF PEC ACTION
(a) Referral to Board Review Committee on Professional
Ethics. Timely appeals from PEC
action shall be referred to the Board Review Committee on Professional Ethics
(hereinafter BRC).
(b) Scheduling BRC Review. Timely
appeals from PEC action shall be scheduled for BRC consideration at the next
meeting of the BRC if the appeal or request is made more than 30 days in
advance of such meeting.
(c) Authority of BRC Chair. The
chair of the BRC shall have the discretion to determine the order of the
agenda, time allocated to each matter, and whether personal appearances may be
allowed. In addition, the chair may appoint a subcommittee to conduct the
review.
(d) Record on Review. Ethics
counsel shall prepare and distribute to the BRC a file on each matter for
review. Any person may request and
receive a copy of the file. Ethics
counsel may charge a reasonable fee for providing copies in accord with
established, general bar policies. The
file shall include the record before the PEC and the request for BRC review.
(e) BRC Action. By majority vote of those present, the BRC may:
(1) affirm the PEC action, in whole or in part;
(2) reverse the PEC action, in whole or in part; or
(3) return the matter to the PEC with instructions as to
redrafting.
(f) Review of BRC Action. The BRC shall report its actions to the board.
By majority vote of those present, the board may:
(1) affirm the PEC action, in whole or in part;
(2) reverse the PEC action,
in whole or in part; or
(3) return the matter
to the PEC with instructions as to redrafting.
(g) Notice of Board of Governors Action.
Notice of board of governors action regarding
formal advisory opinions shall be published in The Florida Bar News. Notice of the board's actions shall be
provided by ethics counsel to the members who timely requested board of governors review.
Rule 6.
PROCEDURE FOR ISSUANCE OF BOARD OF GOVERNORS OPINIONS
(a)
Referral to BRC. Board of governors
decisions to render an advisory ethics opinion shall be referred to the BRC to
develop a specific set of facts upon which the opinion will be based, comply
with notice provisions in this procedure, and adopt a written advisory opinion
applying the Rules of Professional Conduct to the set of facts.
(b) Scheduling BRC Review.
Advisory ethics opinions shall be scheduled for BRC consideration if the
decision to consider rendering an opinion is made more than 30 days in advance
of such meeting and any official notice requirements are met.
(c)
Authority of BRC Chair. The chair of
the BRC shall have the discretion to determine the order of the agenda, time
allocated to each matter, and whether personal appearances may be allowed. In
addition, the chair may appoint a subcommittee to conduct the review.
(d) Notice of BRC Opinion. In the
event that the board of governors refers an issue to the BRC to render a
written opinion for publication, the BRC shall publish in The Florida Bar News
an official notice of its intent to consider rendering a written opinion. The notice shall state the time and place at
which the BRC's deliberations will occur and shall
invite written comments from interested bar members. Initial publication shall
identify the subject matter of the issue and any proposed text, if then
available, and invite written comment.
If an opinion is issued, the BRC shall publish an official notice of the
adoption of the advisory ethics opinion in The Florida Bar News,
including the full text of the opinion.
Any subsequent notice shall contain the full text of any revised
advisory ethics opinion.
(e) Comments. Any member in good
standing may file written comment with ethics counsel within 30 days of the
date of publication of official notice of the BRC's
intent to consider rendering a proposed advisory opinion, official notice of
the BRC's adoption of an advisory ethics opinion, or
official notice that the BRC has revised a proposed advisory ethics
opinion. All comments filed under this
subdivision shall be in the form of written statements with relevant facts,
arguments in support, and citations to relevant authority, if any.
(f) Record on Review. Ethics
counsel shall prepare and distribute to the BRC a file on each matter for
review. Any person may request and receive a copy of the file. Ethics counsel
may charge a reasonable fee for providing copies in accord with established,
general bar policies. The file shall
contain the statement of facts upon which the proposed advisory opinion will be
made, relevant material and authorities, and the text of the proposed advisory
opinion, if then available.
(g) BRC Action. By majority vote
of those present, the BRC may:
(1) determine to issue
an opinion; or
(2) determine
not to issue an opinion.
(h) Review of BRC Action. The BRC
shall report its actions to the board. By majority vote of those present, the
board may:
(1) affirm
the BRC action, in whole or in part;
(2) reverse
the BRC action, in whole or in part; or
(3) return
the matter to the BRC with instructions as to redrafting.
(i) Notice of Board of
Governors Action. Notice of board of
governors action regarding formal advisory opinions
shall be published in The Florida Bar News. Notice of the board's actions shall be
provided by ethics counsel to the members who timely filed comments.
Rule 7. TIME FOR APPEALS
All
appeals allowed under these procedures shall be commenced by mailing the
required items to Ethics Counsel, The Florida Bar, 651 E. Jefferson Street,
Tallahassee, Florida 32399-2300, within 30 days of the date on the notice of
the action that is the subject of the appeal.
Failure to timely commence an appeal shall bar the appeal.
(revised and adopted by the Board of Governors on May
24, 2002)
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