ABA House of Delegates tables action on proposed change to lateral hire screening rule (ABA Model Rule1.10)  [Added 8/18/08]

    By a one-vote margin (192 to 191) on August 12, 2008, the ABA House of Delegates approved a motion to postpone action on a proposed change to ABA Model Rule of Professional Conduct 1.10.  The proposed change would permit "screening" of newly-hired lawyers who had a conflict of interest with a client of the hiring firm.  Under the current rule, if a private law firm ("Firm A") hires a lawyer from another private law firm ("Firm B") that is on the other side of a disputed matter, and that lawyer has worked on the case and acquired confidential information about Firm B's client, then Firm A will be disqualified from the case unless it obtains the informed consent of the firms' clients.  The proposed amendment to Model Rule 1.10 would permit Firm A to avoid disqualification by screening the newly hired lawyer from the case and from any participation in the fee.

    Click here to view the full text of the proposal (ABA Resolution 14).  Click here to view a story from the ABA Journal.

    A similar proposal was presented a few years ago by the ABA's Ethics 2000 Commission but was rejected by the House of Delegates.

    The ABA House of Delegates is expected to take up the matter again at its February 2009 meeting in Boston.  Watch sunEthics.com for updates.

Florida Bar Board of Governors approves an Florida Ethics Opinion 07-2 concerning outsourcing legal work to foreign countries  [Added 7/31/08]

    At its meeting in Clearwater on July 25, 2008, the Florida Bar Board of Governors voted to slightly modify and approve Florida Ethics Opinion 07-2.  The opinion addresses ethical issues presented by Florida lawyers who outsource legal work to foreign countries.  Opinion 07-2 concludes that, if certain caveats are followed, the practice may be ethically permissible.  The Board committee voted to approve the opinion with the addition of language cautioning lawyers to "be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties, particularly where the information concerns medical records or financial information."

    The headnote summarizing Florida Ethics Opinion 07-2 states:  "A lawyer is not prohibited from engaging the services of an overseas provider to provide paralegal assistance as long as the lawyer adequately addresses ethical obligations relating to assisting the unlicensed practice of law, supervision of nonlawyers, conflicts of interest, confidentiality, and billing.  The lawyer should be mindful of any obligations under law regarding disclosure of sensitive information of opposing parties and third parties."   

Florida Bar Professional Ethics Committee approves proposed opinion regarding confidentiality of unilateral communications received by lawyer or law firm  [Added 6/23/08]

    At its meeting in Boca Raton on January 20, 2008, the Florida Bar Professional Ethics Committee approved a proposed advisory opinion regarding the scope of the duty of confidentiality that may be owed in connection with a prospective client's unilateral communications to a lawyer or law firm.  The Committee considered the matter at the request of the Bar's Board of Governors.  Proposed Advisory Opinion 07-3 concludes:

-- A person who sends information to a lawyer on a "totally unsolicited basis" has no reasonable expectation that the lawyer will keep the information confidential.  This person is not a "prospective client' within the meaning of Rule 4-1.18, Florida Rules of Professional Conduct.  Consequently, the lawyer "will not have a conflict of interest in representing the adversary of a person who has sent information to the lawyer on an unsolicited basis, and the lawyer may disclose or use that unsolicited information in the representation of the adversary."

-- If the lawyer and the person providing the information have discussed the possibility of representation or the lawyer has agreed to consider representing the person, "that person is a 'prospective client' under Rule 4-1.18, and the lawyer therefore owes the person a duty of confidentiality which may create a conflict of interest in representation of an adversary."

-- The opinion cautions that "lawyers who invite persons seeking legal representation to provide information via the lawyer’s website that the lawyer should prominently post a disclosure statement that the lawyer does not intend to treat such information as confidential and that the lawyer may use the information against the person if the lawyer intends to do so."

    Proposed Advisory Opinion 07-3 was published in the July 15, 2008, issue of the Florida Bar News.  Interested Bar members may file comments with the Bar's Ethics Counsel regarding the proposed opinion within 30 days of its publication.  (See Florida Bar Procedures for Ruling on Questions of Ethics.)

    Watch sunEthics.com for updates.

Florida Bar Professional Ethics Committee reaffirms advisory opinion addressing duties of lawyer whose criminal defense client is proceeding under false name  [Added 6/23/08]

    At its meeting in Boca Raton on January 20, 2008, the Florida Bar Professional Ethics Committee reaffirmed Proposed Advisory Opinion 90-6 (Reconsideration).  PAO 90-6 (Reconsideration) addresses the duties of a lawyer whose criminal defense client is proceeding under a false name.  Among other conclusions, PAO 90-6 (Reconsideration) states that a lawyer who learns of the false identity after undertaking the representation must attempt to persuade the client to disclose that the client is proceeding under a false name and, if that fails, must make disclosure to the court.

    Some interested Florida Bar members, including representatives of the Bar's Criminal Law Section and the Florida Association of Criminal Defense Lawyers, filed comments regarding PAO 90-6 (Reconsideration).  Those persons who filed comments now have 30 days in which to request review by the Bar's Board of Governors.  (See Florida Bar Procedures for Ruling on Questions of Ethics.)

    Watch sunEthics.com for updates.

Interesting issues to be considered by Florida Bar Professional Ethics Committee at June 20 meeting in Boca Raton  [Added 6/11/08]

    A variety of interesting ethical issues are on the agenda for the meeting of the Florida Bar Professional Ethics Committee on June 20, 2008, in Boca Raton.  Among the items to be considered are:

-- Proposed Advisory Opinion 90-6 (Reconsideration), concerning the duties of a lawyer whose criminal defense client is proceeding under a false name.  Among other conclusions, the proposed opinion states that a lawyer who learns of the false identity after undertaking the representation must attempt to persuade the client to disclose that the client is proceeding under a false name and, if that fails, must make disclosure to the court.  The proposed opinion was approved by the Committee in January 2008.  At the June meeting the Committee will review the proposed opinion in light of comments filed by interested Bar members.  (See Florida Bar Procedures for Ruling on Questions of Ethics.)

-- Proposed Advisory Opinion 07-3, concerning the scope of the duty of confidentiality that may be owed in connection with a prospective client's unilateral communications to a lawyer or law firm.  The Committee is considering this matter at the request of the Board of Governors.  The Committee will review the draft of this proposed opinion for the first time.

-- The question of whether, or to what extent, Rule 4-4.2 or other Florida Rules of Professional Conduct may govern communications by a lawyer who is representing himself in a dissolution of marriage proceeding with his nonlawyer wife who is represented by counsel.

-- Issues relating to the division of a court-awarded fee between lawyer and client.

-- Application of the confidentiality rule, Rule 4-1.6, to situations where lawyers are asked about their cases by other lawyers.

    After the meeting, watch sunEthics.com for a full report on the Committee's actions.

ABA will consider relaxing Model Rule of Professional Conduct 1.10 to allow law firms who hire lawyers from opposing firms to avoid disqualification by screening moving lawyers  [Added 6/6/08]

    At the August 2008 ABA meeting in New York, the ABA Standing Committee on Ethics and Professional Responsibility will ask the House of Delegates to amend Rule 1.10 of the ABA Model Rules of Professional Conduct.  Under the current rule, if a private law firm ("Firm A") hires a lawyer from another private law firm ("Firm B") that is on the other side of a disputed matter, and that lawyer has worked on the case and acquired confidential information about Firm B's client, then Firm A will be disqualified from the case unless it obtains the informed consent of the firms' clients.  The proposed amendment to Model Rule 1.10 would permit Firm A to avoid disqualification by screening the newly hired lawyer from the case and from any participation in the fee.

    A similar proposal was presented a few years ago by the ABA's Ethics 2000 Commission but was not adopted.

    The text of the proposed rule change, and the accompanying Report, appears below.

AMERICAN BAR ASSOCIATION

STANDING COMMITTEE ON ETHICS AND PROFESSIONAL RESPONSIBILITY

REPORT TO THE HOUSE OF DELEGATES

RECOMMENDATION

            RESOLVED, that the American Bar Association adopts the following amendment to Model Rule of Professional Conduct 1.10:

Imputation of Conflicts of Interest: General Rule

     *   *   *

(e) notwithstanding paragraph (a), and in the absence of a waiver under paragraph (c), when a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under Rule 1.9 unless:

(1)    the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2)     written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule.

                               *   *   *

Comment

                                              *   *   *

[9]  When the conditions of paragraph (e) are met, no imputation of a lawyer’s disqualification occurs, and consent to the new representation is therefore not required.  Lawyers should be aware, however, that courts may impose more stringent obligations in ruling upon motions to disqualify a lawyer from pending litigation.

[10]  Requirements for screening procedures are stated in Rule 1.0(k).  Paragraph (e)(1) does not prohibit the screened lawyer from receiving a salary or partnership share established by prior independent agreement, but that lawyer may not receive compensation directly related to the matter in which the lawyer is disqualified.

[11]  Notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent. 

REPORT

Model Rule of Professional Conduct 1.10(a) imputes the disqualification of one lawyer in a law firm to all other members of the firm except when the disqualification is based on a personal interest of the lawyer that will not limit the ability of the other lawyers in the firm to represent the client.  The only exceptions to the broad application of imputation are in Model Rules 1.11 (addressing private firms that hire former government lawyers), 1.12 (addressing  firms that hire a former judge, judicial law clerk, arbitrator, mediator, or other “third-party neutral”), and 1.18 (discussing situations in which information has been imparted by a prospective client).  In each of those situations, the law firm may avoid imputed disqualification by screening the disqualified lawyer from any involvement in the matter. 

To date, proposals to amend the ABA Model Rules to allow screening when a lawyer moves from one private firm to another have been unsuccessful, most recently in 2002, when a proposal by the Commission on Evaluation of the Model Rules of Professional Conduct (“Ethics 2000”) was rejected by the House of Delegates by a margin of 176 to 130.  Since the advent of the Model Rules, however, many states have made different policy choices.  There are now 21 states in which the movement of a personally disqualified lawyer to a new firm does not result in imputation of that lawyer’s disqualification to other lawyers in the new firm if the lawyer is timely screened from participation in the matter.[1]

The Standing Committee on Ethics and Professional Responsibility has carefully considered the issues relating to imputed disqualification, and believes that it is time for the American Bar Association to extend the concept of screening, which the Model Rules have long permitted in other contexts, to lawyers who move between private firms. [2]  Such a change must be accomplished, however, without diminishing the duty of confidentiality that a lawyer owes to a former client. 

The current Model Rules imputation policy implies that only lawyers moving from public service to private practice should be trusted to honor or comply with an effective screening procedure.  It is also possible to infer from the Model Rules’ formulation that former clients of private law firms are entitled to greater protections than are government entities whose lawyers have moved to the private sector.  The Committee believes neither presumption is sound.  The increasing number of states that have rejected these presumptions is evidence that the ABA’s stance does not reflect the realities of the practice of law.

Some who objected in the past to the expansion of screening practices argued that screening permits “side switching,” whereby a lawyer who has represented one party in a matter will be permitted to represent an opposing party.  On the contrary, the purpose of an effective screening mechanism is to prohibit a disqualified lawyer from having any contact with any other lawyers in the new firm about the matter that gave rise to the disqualification. 

The current posture of this Association, embodied in Rule 1.10 of the present Model Rules, can be interpreted as reflecting a deep distrust of lawyers in private practice, assuming that a personally disqualified lawyer and the other lawyers in the lawyer’s new firm will cheat, and a skepticism that any screen can be objectively verified to the reasonable satisfaction of private clients.  The Standing Committee believes that both of these presumptions should be disavowed.

The screening provisions that have been adopted in nearly half the states have proven effective in protecting client confidentiality, and this belief finds support from lawyers, clients, and disciplinary counsel from those jurisdictions.  We are firmly convinced that screening is as effective in the context of private lawyers changing firms as it has been for many years in the context of lawyers moving from government service to private practice.  The Ethics 2000 Commission came to the same conclusion, and the rejection of its screening proposal was unfortunate as a matter of principle.  Although we recognize that it was an historic concern for promoting government service that supported screening in the contexts of Rules 1.11 and 1.12, the increasing number of states that have endorsed screening for lawyers in all contexts reflects a growing consensus that the public-private distinction is unfounded and should be abandoned. 

The Standing Committee’s Recommendation is similar to the proposal of the Ethics 2000 Commission advanced in 2002.  It draws upon the most reasonable and effective provisions identified in the state rules referred to above, as well as the provisions already embodied in Rules 1.11, 1.12, and 1.18.  We believe that the provision requiring notice of the screening to the former client will adequately expose potential conflicts to examination, allaying concerns of former clients that their confidential information may be at risk. 

The Committee notes that one of the primary objectives of the Model Rules of Professional Conduct is the achievement of uniformity in the ethical principles adopted nationwide.  This objective has not yet been realized because the ABA has not provided practical, effective, and up-to-date advice on this most important aspect of practice.  The effectiveness of the Rules as a unifying model will continue to be impaired if the states continue to make their own varying ways in implementing screening proposals.

We urge the members of the House of Delegates to adopt the attached Recommendation amending Model Rule 1.10.

Respectfully submitted, 

Standing Committee on Ethics and Professional Responsibility

                        Steven C. Krane, Chair

                        August 2008

Outsourcing legal work to foreign countries not unethical, per Florida Bar Professional Ethics Committee Proposed Advisory Opinion 07-2  [Added 6/5/08]

    At its meeting in Miami on January 18, 2008, the Florida Bar Professional Ethics Committee considered comments received regarding Proposed Advisory Opinion 07-2, which addresses ethical issues presented by Florida lawyers who outsource legal work to foreign countries.  The proposed opinion concludes that, if certain caveats are followed, the practice may be ethically permissible.  The committee voted to reaffirm the proposed opinion.

    The matter is now before the Florida Bar Board of Governors.  (See Florida Bar Procedures for Ruling on Questions of Ethics.)  The Proposed Advisory Opinion was initially reviewed by the Board at its meeting in Key West on May 29-30, 2008, and was continued until the Board's meeting in Clearwater on July 24-25, 2008.

    For more information, see this story in the June 15, 2008, issue of the Florida Bar News.

Florida Supreme Court amends Rules Regulating The Florida Bar, including adoption of rule governing lawyer-client contract provisions regarding arbitration of fee disputes  [Added 12/24/07]

    Responding to a rules petition filed by the Florida Bar, the Florida Supreme Court amended a number of the Rules Regulating The Florida Bar.

    The only amendment to the Rules of Professional Conduct (Chapter 4, Rules Regulating The Florida Bar) was the addition of new Rule 4-1.5(i), titled "Arbitration Clauses."  This rule authorizes a lawyer to include a clause in a lawyer-client fee agreement specifying that any fee dispute will be decided through arbitration, provided (1)  the lawyer advises the prospective client in writing to consider obtaining independent legal advice regarding the advisability of signing the agreement with the arbitration clause and (2) the agreement contains certain required cautionary language in bold print.

    The other rule change proposals addressed by the Court included a variety of subjects.  One proposed change that was rejected by the Court (at least for the time being) was a proposal to revise the procedural process for amending the Bar rules.  The proposal would have added a Court "conference and dialogue" process as an option to the current "case and controversy" process.  The Court noted that "[t]he proposal raises several issues that must be studied before implementing such a procedure.  Therefore, the Court does not adopt the proposal at this time.  Because the proposal presents significant unaddressed issues, the Court requests that the Bar undertake and submit a study addressing how, in states where the high courts have procedural rule or Bar rulemaking authority, those courts process their rule amendments.  The report should also address the issue of ex parte communication with regard to communications among the Justices, proponents, and commentators."  The Bar was directed to work with the Court's Rules of Judicial Administration Committee in preparing the report.

    Other rule changes approved by the Court concerned: 

• the work that disbarred or suspended lawyers may perform for licensed lawyers during the period of suspension or disbarment;

• the roles of designated reviewers in the Bar's grievance system;

• assessment of a $1250 "administrative fee" against lawyers who are found guilty of minor misconduct;

• time limitations barring prosecution of grievance complaints;

• a new name for the Bar's "Out-of-State Division" (formerly known as the "Out-of-State Practitioners Division;"

• new board certifications in "State and Federal Government and Administrative Practice" and "Intellectual Property" law;

• use of the terms "paralegal" and "legal assistant;"

• delinquency suspension of lawyers who do not timely pay arbitration awards issued pursuant to the procedures in Chapter 14, Rules Regulating The Florida Bar; and

• residency regulations and jurisdictional disclosure requirements for Authorized House Counsel pursuant to Chapter 17, Rules Regulating The Florida Bar.

    The rule amendments are effective on March 1, 2008.  In re: Amendments to the Rules Regulating The Florida Bar, 978 So.2d 91 (Fla. 2007).

Florida Supreme Court issues revised opinion concerning lawyer advertising rule changes originally adopted in January 2007, and denies Bar's motion for reconsideration  [Added 12/24/07]

    The Florida Supreme Court issued a revised opinion regarding the lawyer advertising rule changes that were originally adopted by the Court effective January 1, 2007 (click here for a copy of the Court's original opinion).  (A sunEthics.com summary of those rule changes appears on the "Rules and Opinions" page of the sunEthics.com "News Archive" section and can also be accessed by clicking here.)

    The Florida Bar had filed a Motion for Reconsideration in this matter.  The Bar sought clarification as to the effect of several aspects of the Court's original opinion.  Among other things, in light of the rules as amended by the Court the Bar has asked the Court:  whether lawyers' websites are considered "information on request" and therefore are not subject to the advertising rules; whether lawyers' unsolicited email messages to prospective clients are subject to essentially the same regulations that govern direct mail advertising; whether lawyers must file communications sent to other lawyers, current clients, and former clients; whether the general lawyer advertising rules apply to communications made by lawyers at prospective clients' request.

    The Court denied the Bar's Motion for Reconsideration but issued the revised opinion, which contained 2 key features.  First, the Court granted the Bar's request to retain existing subdivision (d) of Rule 4-7.8.  "[T]he Bar proposed amendments to rule 4-7.8 (Exemptions From the Filing and Review Requirement), which would have included deletion of existing subdivision (d) (a communication mailed only to existing clients, former clients, or other lawyers is exempt from the filing requirements of rule 4-7.7).  However, the Bar subsequently filed a motion requesting that the Court retain subdivision (d) in the rules, while the Bar studied issues raised by related rule 4-7.1 (General).  Thus, in light of related rule 4-7.1, we modify the proposal to maintain existing subdivision (d) in rule 4-7.8."

    Second, the revised opinion contained a lengthy opinion by Chief Justice Lewis in which he concurred and dissented.  He vigorously dissented from the Court's decision to amend Rule 4-7.2 to permit board certified lawyers to refer to themselves in advertising as "experts."  He observed:  "First, under the commercial-speech doctrine, this Court remains free to restrain deceptive or misleading attorney advertising.  Second, 'specialist' and 'expert' are not synonymous; in fact, they are qualitatively different.  Furthermore, claims of 'expert' status are inherently misleading.  Third, the 'expert' amendments have 'flown under the radar' and have not been adequately or appropriately debated or briefed.  Fourth and finally, my view is consistent with both the majority approach across the country, and with Florida’s regulation of another group of certified specialists – board-certified physicians."

    The Court's opinion stated that "[t]he amendments shall become effective on February 1, 2008, at 12:01 a.m."  In re: Amendments to Rules Regulating The Florida Bar -- Advertising Rules, 971 So.2d 763 (Fla. 2007) (revised opinion).

Florida Supreme Court removes requirement that circuit court mediators be members of the Florida Bar.  [Added 11/19/07]  --  In re: Petition of the Alternative Dispute Resolution Rules and Policy Committee on Amendments to Florida Rules for Certified and Court-Appointed Mediators, 969 So.2d 1003 (Fla. 2007).

Florida Supreme Court approves voluntary "Florida Registered Paralegal Program."  [Added 11/16/07]  --  In re: Amendments to the Rules Regulating The Florida Bar -- Florida Registered Paralegal Program, 969 So.2d 360 (Fla. 2007).

Florida Ethics Opinion 07-1, addressing lawyer's ethical obligations regarding documents that lawyer's client obtained wrongfully, is now final.  [Added 10/29/07]  --  Florida Ethics Opinion 07-1.

Florida Supreme Court amends rules governing Law School Practice Program (Chapter 11, Rules Regulating The Florida Bar).  [Added 7/6/07]  --  In re: Amendments to Rules Regulating The Florida Bar re; Chapter 11 Task Force, 964 So.2d 690 (Fla. 2007).

Florida Supreme Court holds that Rule 4-5.6(b) is constitutional and imposes fee forfeiture and stiff discipline on 2 lawyers who entered undisclosed engagement agreement with clients' adversary.  [Added 5/8/07]  --  Florida Bar v. Rodriguez, 959 So.2d 150 (Fla. 2007); .Florida Bar v. St. Louis, 967 So.2d 108 (Fla. 2007).

New Rule of Criminal Procedure 3.851(i) addresses death-sentenced prisoners' dismissal of postconviction proceedings and discharge of counsel.  [Added 12/13/06]  --  Effective 1/12007.  In re: Amendments to Florida Rules of Criminal Procedure 3.851 and 3.590, 945 So.2d 1124 (Fla. 2006).

FLORIDA SUPREME COURT AMENDS LAWYER ADVERTISING RULES EFFECTIVE 1/1/2007; PRE-SCREENING OF TV AND RADIO ADS NOW REQUIRED  [Added 11/3/06]

    PLEASE NOTE this IMPORTANT UPDATE:  On November 17, 2006, the Florida Bar filed with the Florida Supreme Court a Motion for Reconsideration in this matter.  Essentially, the Bar seeks clarification as to the effect of several of the Court's decisions.  Among other things, in light of the rules as amended by the Court the Bar has asked the Court:  whether lawyers' websites are considered "information on request" and therefore are not subject to the advertising rules; whether lawyers' unsolicited email messages to prospective clients are subject to essentially the same regulations that govern direct mail advertising; whether lawyers must file communications sent to other lawyers, current clients, and former clients; whether the general lawyer advertising rules apply to communications made by lawyers at prospective clients' request.  On December 20, 2008, the Court denied the Bar's Motion for Reconsideration but issued a revised opinion.  In re: Amendments to Rules Regulating The Florida Bar -- Advertising Rules, ___ So.2d ___ (Fla., SC05-2194, 12/20/2007) (revised opinion).

    The Florida Supreme Court has acted on the Florida Bar's petition to amend the lawyer advertising rules in a number of respects.  The amendments become effective on January 1, 2007.

    Among the changes requested by the Bar and approved by the Court are the following:  

• television and radio ads must be pre-filed with the Bar at least 15 days before airing (new Rule 4-7.7(a)(1)(A));

• out-of-state lawyers who practice in Florida are expressly subject to Florida's advertising rules (new Rule 4-7.1(c));

• a Florida lawyer's communications to the lawyer's family members are exempt from the advertising rules (new Rule 4-7.1(e));

• communications by a Florida lawyer to prospective clients that are made at a prospective client's request are exempt from the advertising rules (new Rule 4-7.1(f));

• the ban on statements "likely to create an unjustified expectation about results the lawyer can achieve" has been replaced by a prohibition on communications that "promise[] results" (new Rule 4-7.2(c)(1)(G));

• visuals that are likely to "confuse" a viewer are prohibited (new Rule 4-7.2(c)(3));

• every ad for a lawyer referral service must affirmatively disclose that fact (new Rule 4-7.10(1)(10));

• the types of information that may be included in "public services announcements" (which are exempt from the filing-and-review requirement) has been substantially expanded (new Rule 4-7.8(b) and new Rule 4-7.2(b)(3));

• the "hiring" disclosure statement previously required in print advertising is no longer required;

• the rule against "unfair" advertising has been deleted; and

• advisory advertising opinions rendered by the Bar finding an ad in compliance are binding on the Bar (rather than merely advisory) in grievance proceedings (new Rule 4-7.7(a)(1)(F), new Rule 4-7.7(a)(2)(F)).

    As discussed below, the Court declined to adopt several of the Bar's proposals:  

• The Bar had proposed several changes to the rule governing computer-accessed communications, which include lawyers' websites.  The Court declined to adopt these proposals, stating:  "[T]he Court notes that the [Bar's] Board [of Governors] has appointed a special committee to review issues regarding websites and Internet communications.  The special committee is charged with making recommendations to the Board if appropriate.  Thus, it is not efficient or sound for the Court to address the regulation of Internet advertising at this time, while the special committee is studying these very issues.  Accordingly, the Court does not adopt the [proposed rule changes].  The Court will consider the regulation of Internet communications when the Bar files the report of the special committee."

• The Bar proposed that communications directed to other lawyers, and communications directed to a lawyer's current or former clients, be exempt from the advertising rules.  In declining to adopt these proposals, the Court stated:  "We request further information from the Bar as to why communications between lawyers, and communications with current and former clients, should be exempted from the advertising rules, including any research or evidence supporting such exemptions.  We defer adoption of those two exemptions at this time."  (The Court also declined to adopt the Bar's proposed definition of "prior professional relationship" contained in the comment to the proposed rule that would have stated that the advertising rules did not apply to certain "prior professional relationships.")

• The Bar requested elimination of the requirement that a disclosure be made when a non-lawyer spokesperson is used in a television or radio ad in ads in which it would be apparent from the context of the ad that the person was not a lawyer.  The Court rejected this proposal, stating:  "In comparison to the proposal, the established requirements are consistently unambiguous in any advertising situation, simple to apply, and, thus, provide greater protection for the public.  Therefore, the Court does not adopt the proposal."

    Finally, and perhaps quite significantly, the Court concluded by requesting "that the Bar undertake an additional and contemporary study of lawyer advertising, which shall include public evaluation and comments about lawyer advertising."

    For a rule-by-rule summary prepared by Florida Bar Ethics Counsel Elizabeth Clark Tarbert, click here.

Florida Bar Professional Ethics Committee finalizes "metadata" opinion (06-2).  [Added 11/1/06]  -- 

    Florida Ethics Opinion 06-2 of the Florida Bar Professional Ethics Committee, concerning the ethical obligations of lawyers who send and receive electronic documents containing "metadata," is now final following the committee's September 15, 2006, meeting.  "Metadata" is defined in the Opinion as "information describing the history, tracking, or management of an electronic document."  This information is in the electronic document itself and "can contain information about the author of a document, and can show, among other things, the changes made to a document during its drafting, including what was deleted from or added to the final version of the document, as well as comments of the various reviewers of the document."  The primary ethical concern relates to confidentiality under Florida Rule of Professional Conduct 4-1.6.  In order to fulfill this duty of confidentiality regarding metadata, Opinion 06-2 concludes that lawyers have certain ethical obligations.

    The sending lawyer must "take reasonable steps to safeguard the confidentiality of all communications sent by electronic means to other lawyers and third parties and to protect from other lawyers and third parties all confidential information, including information contained in metadata, that may be included in such electronic communications."

    The receiving lawyer must "not to try to obtain from metadata information relating to the representation of the sender’s client where the recipient knows or should know that the information is not intended for the recipient.  Any such metadata is to be considered by the receiving lawyer as confidential information which the sending lawyer did not intend to transmit.  See, Ethics Opinion 93-3 and Rule 4-4.4(b), Florida Rules of Professional Conduct."

Florida Supreme Court approves rule permitting waiver of client's rights under constitutional amendment regarding attorney's fees in medical malpractice cases.  [Added 9/28/06]  -- 

    The Florida Supreme Court revised the Florida Rules of Professional Conduct (specifically, Rule 4-1.5(f)(4)(B)) by adopting a rule permitting clients in medical malpractice cases to waive the rights granted to them under Article I, Section 26 of the Florida Constitution.  Article I, Section 26 was added to the constitution in 2004 when voters approved an amendment entitled the "Medical Malpractice Claimant's Compensation Amendment," which provided that in medical malpractice cases being handled by a lawyer on a contingent fee basis the client "is entitled to no less than 70% of the first $250,000.00 in all damages received by the claimant, and 90% of damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants."

    The Court adopted (with modifications) the proposed rule offered by the Florida Bar, electing to reject a proposal presented by former Chief Justice Stephen Grimes and other bar members.  The Court was of the view that the rights provided by Article I, Section 26 could be waived by an affected client.  The Court, however, declined to require judicial review of the waiver in every waiver.  The Court stated that "[t]he waiver form not only is extremely detailed but, importantly, sets forth the actual language of article I, section 26 and requires the client to specifically acknowledge that he or she (1) has been advised that signing the waiver releases an important constitutional right; (2) has been advised of the opportunity to consult with separate and independent counsel and to have the waiver explained or reviewed by a court; (3) agrees to an increase in the attorney fee that would otherwise be owed if the constitutional provision were not waived; (4) has three business days in which to cancel the waiver; (5) wishes to engage the named lawyer or law firm, but is unable to do so because of the constitutional limitation and therefore knowingly and voluntarily waives the constitutional limitation in consideration of the lawyer or law firm’s agreement to represent him or her; and (6) has selected the named lawyer or law firm as counsel of choice, could not otherwise engage their services without the waiver, and specifically states that the waiver is knowingly and voluntarily made" (footnote omitted).

    The Court described its modification of the form proposed by the Bar as follows:  "[W]e modify the form to require the client to acknowledge not only that he or she is agreeing to an increased fee, but also to specifically acknowledge the maximum contingency fee percentages currently set forth in rule 4-1.5(f)(4)(B)(i), up to which the lawyer and client may agree, without prior court approval, if the waiver is executed.  Under the rule as adopted, judicial approval is mandatory only where a client waives his or her rights under article I, section 26 and agrees to a contingent fee in excess of the maximum contingency fee percentages set forth in rule 4-1.5(f)(4)(B)(i).  In such a case, court approval under the process set forth in [existing] rule 4-1.5(f)(4)(B)(ii) is necessary" (emphasis in original).

    Two justices dissented "from the rule's failure to provide for judicial review of the client's waiver."

    The amendments to Rule 4-1.5(f)(4)(B) as approved by the Court is effective immediately (September 28, 2006).  In re: Amendment to the Rules Regulating The Florida Bar -- Rule 4-1.5(f)(4)(B) of the Rules of Professional Conduct, 939 So.2d 1032 (Fla. 2006).

Florida Bar members must self-report to Bar all determinations or judgments of guilt for any criminal offense entered after 8/1/2006.  [Added 6/30/06]  --  In re: Amendments to the Rules Regulating The Florida Bar -- Rules 3-5.2 and 3-7.2, 933 So.2d 498 (Fla. 2006).

FLORIDA BAR ETHICS COMMITTEE APPROVES OPINION ON  ELECTRONIC STORAGE OF LAWYERS' FILES  [Added 6/26/06]

    At its meeting on January 23, 2006, the Florida Bar Professional Ethics Committee approved Florida Ethics Opinion 06-1, concerning the issue of electronic storage of lawyers' files.  Opinion 06-1 notes that the Rules Regulating The Florida Bar generally do not specify the method by which records must be maintained.  (An exception is Rule 5-1.2(b)(3), which requires that lawyers retain original cancelled trust account checks unless the financial institution provides only copies.)  Rather, "the main consideration in file storage is that the appropriate documents be maintained, not necessarily the method by which they are stored.  Therefore, a law firm may store files electronically unless:  a statute or rule requires retention of an original document, the original document is the property of the client, or destruction of a paper document adversely affects the client’s interests."  The committee noted that its conclusion was consistent with ethics opinions "too numerous to cite" from other jurisdictions.  Opinion 06-1 not only permits but "encourages the use of technology, such as electronic file storage, to facilitate cost-effective and efficient records management."  Although electronic file storage is permitted, the opinion concludes that it is not required.

Florida Bar Professional Ethics Committee withdraws Opinion 90-7 (conflicts arising from lawyer-client business dealings).  [Added 4/20/06].

SUPREME COURT AMENDS RULES OF PROFESSIONAL CONDUCT IN RESPONSE TO BAR'S "ETHICS 2000" PETITION; AMENDMENTS EFFECTIVE MAY 22, 2006  [Added 3/23/06]

    The Florida Supreme Court amended a number of the Florida Rules of Professional Conduct in response to a petition filed by the Florida Bar.  The Bar's petition resulted from recommendations made by a special study committee appointed to review the "Ethics 2000" changes to the ABA Model Rules of Professional Conduct that were adopted by the ABA House of Delegates in August  2002.  The proposals of the committee, as approved by the Bar's Board of Governors, were filed with the Supreme Court in December 2004.

    The Court adopted most of the Bar's proposals, but revised several and declined to adopt a few.  The changes take effect on May 22, 2006.  In re: Amendment to the Rules Regulating The Florida Bar, 933 So.2d 417 (Fla. 2006).  A summary of significant changes appears below.

SUMMARY OF SIGNIFICANT RULE CHANGES

    GENERALLY

Preamble.  Although the Rules of Professional Conduct do not establish lawyers' standards of conduct for purposes of imposing civil liability (e.g., legal malpractice), the last sentence of the "Scope" portion of the Preamble now recognizes that violations of the Rules "may be evidence of a breach of the applicable standard of conduct."  (This is consistent with Florida law.  See generally  Pressley v. Farley, 579 So.2d 160 (Fla. 1st DCA 1991); Oberson Investments, N.V. v. Angel, Cohen & Rogovin, 492 So.2d 1113, 1114 n.2 (Fla. 3rd DCA 1986), quashed on other grounds 512 So.2d 192 (Fla. 1987); Gomez v. Hawkins Concrete Construction Co., 623 F.Supp. 194 (N.D. Fla. 1985).)

Terminology.  Definitions of key new terms are added, including "confirmed in writing," "informed consent," and "screened."  Additionally, substantial explanation of "screened" is provided in a Comment to the Rule.  The definition of "writing" includes e-mail.

"Informed consent."  The concept of "informed consent" replaces the former standard of "consent after consultation."  See Rules 4-1.2, 4-1.4, 4-1.6, 4-1.7, 4-1.8, 4-1.9, 4-1.10, 4-1.11, 4-1.12, 4-1.17, 4-1.18, 4-2.3, and 4-3.7.

Most conflict waivers must be "confirmed in writing" or "stated on the record at a hearing."  In most situations requiring a client's consent to waive a conflict of interest, the rules now require that the consent be "confirmed in writing."  Alternatively, the Supreme Court on its own motion added the alternative of having the consent "stated on the record at a hearing."  See Rules 4-1.7 (conflicts involving current clients), 4-1.11 (conflicts involving government employees), 4-1.12 (conflicts involving former judges, law clerks, and third-party neutrals), and 4-1.18 (conflicts involving prospective clients).  The client, however, need not sign the writing unless the rule so specifies.  See, e.g., Rules 4-1.8(a) (business transactions with clients), 4-1.8(g) (aggregate settlements).  Note that a conflict waiver from a former client does not need to be confirmed in writing.  Rule 4-1.9.

PROPOSED RULE CHANGES THAT THE COURT DID NOT ADOPT

Prosecutor ethics rules.  The Court declined to adopt proposed changes to Rule 4-3.8, "Special Responsibilities of a Prosecutor."  One proposed change would have required prosecutors in criminal cases to "make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel."  The Court stated that "the Florida Rules of Criminal Procedure already invest in other persons or entities the obligations" contained in the proposed rule.  The Court stated that any changes to prosecutors' duties in this area should be part of the criminal procedure rules rather than the lawyer ethics code.  The Court also declined to adopt a proposed amendment that would have restricted a prosecutor from subpoenaing a lawyer in a grand jury or other criminal proceeding to present evidence about the lawyer's current or former client.  The Court directed the Bar "to further study this proposal, including the differences between the Bar's proposal and the ABA model rule."

Candor toward the tribunal.  The Court declined to adopt proposed changes to Rule 4-3.3, "Candor Toward the Tribunal."  The Court's decision was "[d]ue to possible contradictions in the proposed amendments."  The Court did not elaborate, but directed the Bar to further study the proposal.

Trial publicity.  The Court declined to adopt proposed changes to Rule 4-3.6, "Trial Publicity."  The Court did not offer a reason for its decision.

Clients under a disability.  Several entities filed comments suggesting changes to Rule 4-1.14, "Client Under a Disability."  The Court did not address these proposals, however, because the Florida Bar had not proposed amendments to that Rule.

Pro bono obligations.  Several entities filed comments suggesting changes to Rule 4-6.1, "Pro Bono Public Service," and Rule 4-6.5, "Voluntary Pro Bono Plan."  The Court did not address these proposals, however, because the Florida Bar had not proposed amendments to those Rules.

Court directs Florida Bar directed to further study several issues.  As described more fully above, the Court directed the Bar to further study proposals to amend Rule 4-3.3 (lawyers' duties of candor toward the tribunal) and Rule 4-3.8 (ethical duties of prosecutors).

SPECIFIC RULE CHANGES ADOPTED BY THE COURT

Contingent fees in domestic relations matters, Comment to Rule 4-1.5.  The Comment to the Rule now clarifies that the prohibition on contingent fees in domestic relations matters "does not preclude a contract for a contingent fee for legal representation in connection with the recovery of post-judgment balances due under support, alimony, or other financial orders."  This accords with prior interpretation by the Professional Ethics Committee (see Florida Ethics Opinion 89-2).

General conflict of interest rule concerning current clients, Rule 4-1.7.  This format of this rule has been substantially changed.  Subdivision (a) now states the basic conflict prohibition (lawyer shall not represent a client if representation of one client will be directly adverse to another client OR if lawyer reasonably believes there is a substantial risk that representation of one or more clients will be materially limited by lawyer's responsibilities to other another client, former client or third person, or by personal interest of the lawyer), and subdivision (b) contains the 4 exceptions in which a representation may be undertaken notwithstanding an actual or potential conflict ((1) lawyer reasonably believes lawyer will be able to provide competent and diligent representation to each affected client, (2) representation is not prohibited by law, (3) representation does not involve assertion of position adverse to another client when lawyer represents both clients in same proceeding before a tribunal, and (4) each affected client gives informed consent, confirmed in writing or clearly stated on record at hearing).

Conflict of interest rule concerning specific transactions, Rule 4-1.8.  Subdivision (c) has been amended to broaden the prohibition against soliciting substantial gifts from clients.  The Rule previously barred the lawyer from preparing an instrument effecting such a gift, while the Rule now extends this prohibition to any solicitation of a substantial gift.  New subdivision (k) specifies that all of the conflicts in Rule 1.8, except one, are imputed to all lawyers within the conflicted lawyer's firm.  The lone exception is the sexual relationship conflict, expressed in subdivision (i).

Conflict of interest rule concerning former clients, Rule 4-1.9.  The Comment to Rule 4-1.9 has been expanded in several areas.  The Comment now provides additional definition concerning the meaning of a "substantially related matter."  The definition of "generally known" information has been moved from the Rule to the Comment and now clarifies summarizes the concern in a "but-for" test:  "The essential question is whether, but for having represented the former client, the lawyer would know or discover the information."

Conflicts of interest imputed among private firm lawyers, Rule 4-1.10.  Two changes, one to the Rule and the other to the Comment, are noteworthy:

     --  Many "personal interest" conflicts of a lawyer may no longer be imputed to other lawyers within the same firm.  In order for this provision limiting imputation of purely "personal interest" conflicts to apply, the conflict must be "based on a personal interest of the prohibited lawyer" and "not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm."  When these criteria are met, no screening of the personally conflicted lawyer is necessary.  (The example given in the Comment to the Rule is:  "Where 1 lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified.")

     --  Conflicts of NON-lawyers in a firm no longer are automatically imputed to the firm's lawyers.  The Comment to the Rule allows these non-lawyers (e.g., paralegals, legal secretaries) to be screened off from the matter in order to prevent imputation of the conflict to the rest of the firm.

Conflicts of interest involving former and current government lawyers, Rule 4-1.11.  The Rule now explicitly states what many understood to always be the case -- former government lawyers are personally subject to the conflict rules concerning use of confidential information about a former client (Rule 4-1.9(b)).  Additionally, the Rule has defined the term "confidential government information" used in Rule 4-1.11 to mean "information that has been obtained under governmental authority and which, at the time this rule is applied, the government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public."

Conflicts of interest involving former "third-party neutrals," Rule 4-1.12.  For the first time, a conflict rule is directed specifically to former arbitrators, mediators, "or other third-party neutrals."  The rules are the same as those that have long governed former judges and judicial law clerks.  (The Comment to the Rule notes, however, that lawyers who are certified mediators "are governed by the applicable law and rules relating to certified mediators.")  The term "third-party neutral" is defined in new Rule 4-2.4, which more specifically delineates the duties of lawyers serving in such a role.

Withdrawing from representation, Rule 4-1.16.  The Rule now contains 2 more situations in which a lawyer must decline or terminate representation of a client.  These are:  where "the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent, unless the client agrees to disclose and rectify the crime or fraud;" and where "the client has used the lawyer's services to perpetrate a crime or fraud, unless the client agrees to disclose and rectify the crime or fraud."  In addition, the Rule now specifies that a lawyer may decline or terminate representation when the client insists upon taking action "with which the lawyer has a fundamental disagreement."

Sale of law practice, Rule 4-1.17.  Previously lawyer who were selling their practices were required to sell the entire practice to a single purchaser.  Those restrictions have been lifted.  Now, a lawyer have the option of selling the entire practice or "an area of practice" to one or more purchasing lawyers or law firms authorized to practice law in Florida.

Duties to prospective clients, Rule 4-1.18.  For the first time, a Rule specifically addresses a lawyer's duties to prospective clients.  A prospective client is defined as a "person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client."  Among the key elements of the new rule are:

     --  Discussions with prospective clients are confidential even if no lawyer-client relationship results, "except as rule 4-1.9 would permit with respect to information of a former client."

     --  A lawyer who obtains confidential information from a prospective client may not represent another client against the prospective client "in the same or a substantially related matter" if the confidential information could "be used to the disadvantage of" the prospective client in that matter.  Significantly, however, this disqualification does not extend to all other lawyers in the firm if the affected lawyer "took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client" and is screened off from any participation in the matter.  Written notice of the screening must be given to the prospective client.

The Bar had proposed that this type of screening mechanism not be permitted, but the Court agreed with the Business Law Section of the Bar that screening should be allowed, as it is under ABA Model Rule 1.18.

Duties of lawyers serving as "third-party neutrals," Rule 4-2.4.  This new rule provides that a lawyer is serving as a "third-party neutral" when the lawyer assists 2 or more non-clients to reach a resolution of a dispute between them.  This service may include acting "as an arbitrator, a mediator, or in such other capacity as will enable the lawyer to assist the parties to resolve the matter."  A lawyer serving as a third-party neutral "shall inform unrepresented parties that the lawyer is not representing them."  Additionally, when the lawyer "knows or reasonably should know that a party does not understand the lawyer's role in the matter," the lawyer must "explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client."  (The Comment to the Rule notes that lawyers who are certified mediators "are governed by the applicable law and rules relating to certified mediators.")

Communicating with persons represented by other lawyers, Rule 4-4.2.  The text of this Rule has not been changed.  There are several significant changes to the Comment:

     --  The Comment now clarifies that the Rule "applies to communications with any person who is represented by counsel concerning the matter to which the communication relates" and applies "even though the represented person initiates or consents to the communication."

     --  The revised Comment restates the test for communications with current employees of a represented organization:  "In the case of a represented organization, this rule prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability."

     --  The Comment now specifies that consent of an organization's lawyer is not required for communication with a former employee of the organization.  (This is consistent with Florida Ethics Opinion 88-14.)

Dealing with unrepresented persons, Rule 4-4.3.  The Rule now specifically prohibits a lawyer from giving "legal advice to an unrepresented person, other than the advice to secure counsel."

Dealing with third persons, Rule 4-4.4.  A new provision in the Rule requires that a lawyer who "receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent shall promptly notify the sender."

Checking for conflicts, Rule 4-5.1.  The Comment to this Rule now states that the duty of lawyers with managerial authority in a firm to ensure compliance with the Rules of Professional Conduct includes an obligation to establish policies and procedures "designed to detect and resolve conflicts of interest."

Sharing fees with nonlawyers, Rule 4-5.4.  Another exception has been added to the prohibition against sharing legal fees with nonlawyers to specify that "a lawyer may share court-awarded fees with a nonprofit, pro bono legal services organization that employed, retained, or recommended employment of the lawyer in the matter."

Duty to report misconduct of other lawyers or judges, Rule 4-8.3.  The Rule expands the exception to the duty to report misconduct of other lawyers or judges.  A lawyer who learns of the misconduct "while participating in an approved lawyers assistance program" is not obligated to report the misconduct (unless the participation is required as part of a disciplinary sanction).  The objective is to make it more appealing for lawyers who need help to seek treatment through a lawyers assistance program.

Statute governing award of attorney's fees in workers' compensation cases not affected by Rule of Professional Conduct 4-1.5.  [Added 2/15/06]  --  Wood v. Florida Rock Industries, 929 So.2d 542 (Fla. 1st DCA 2006).

VARIOUS NEW FLORIDA RULES TOOK EFFECT JANUARY 1, 2006  [Added 1/1/06]

    A number of new or revised Florida rules became effective on January 1, 2006.  Information concerning these changes can be accessed below.

    RULES REGULATING THE FLORIDA BAR (VARIOUS)

    On October 6, 2005, The Florida Supreme Court rendered its opinion in response the the Florida Bar's annual petition presenting proposed amendments to the Rules Regulating The Florida Bar (which had been filed in February 2005).  In addition to raising the filing fee that lawyers must pay to have their advertisements reviewed by the Florida Bar, the Court amended rules concerning various aspects of attorney's fees, the permissible type and extent of contact that a lawyer who leaves a law firm may have with firm clients, bonus payments to nonlawyer employees of a law firm, regulation of the conduct of bar admission applicants, jury argument, criminal investigative work by lawyers, inventory attorneys, and UPL regulation.

    The amendments take effect at 12:01 am on January 1, 2006.  A sunEthics.com summary of the changes appears below.

Advertising review fee.  Amended Rule 4-7.7(b)(5) raises from $100 to $150 the fee that a Florida Bar member must pay to have an advertisement reviewed by the Bar.

Contact with firm clients by lawyers who leave a law firm.  New Rule 4-5.8 establishes specific regulations governing the communications that a lawyer who leaves a law firm may have with law firm clients.  Rule 4-5.8 also addresses communication to firm clients in the event of a law firm's dissolution.

    Subdivision (c)(1) of Rule 4-5.8 provides that, "[a]bsent a specific agreement otherwise, a lawyer who is leaving a law firm shall not unilaterally contact those clients for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless the lawyer has approached an authorized representative of the law firm and attempted to negotiate a joint communication to the clients concerning the lawyer leaving the law firm and bona fide negotiations have been unsuccessful."  A similar approach for lawyers in dissolving firms is contained in subdivision (c)(2).

    Subdivision (d) the rule prescribes the content of a lawyer’s communication to clients when a joint notice cannot be agreed upon after a bona fide attempt.  In that situation, any communication to clients should give notice of the departure or dissolution and "provide options to the clients to choose to remain a client of the law firm, to choose representation by the departing lawyer, or to choose representation by other lawyers or law firms."

    Subdivision (e) establishes the default rule for clients who do not respond to the notice.  In the case of a lawyer leaving a law firm, the nonresponsive client "shall be considered as remaining a client of the firm until the client advises otherwise."  In the case of a law firm dissolution, "the client shall be considered as remaining a client of the lawyer who primarily provided the prior legal services on behalf of the firm until the client advises otherwise."

    It should be noted that subdivision (a) of the rule provides that the "contract for legal services," rather than the rule, "creates the legal relationships between the client and law firm and between the client and individual members of the law firm, including ownership of the files maintained by the lawyer or law firm" and that "[n]othing in these rules creates or defines those relationships."

Attorney's fees:  court approval of contingent fees in excess of cap.  Amended Rule 4-1.5(f)(4)(B)(ii) appears to be intended to make it more difficult for a lawyer who represents, or wishes to represent, a client in a personal injury-type matter to obtain court approval of a contingent fee above the rule's specified cap.  More than "mere agreement between the client and lawyer" will be needed; "[a]s a general rule an upward departure from the presumed reasonable fee is not appropriate."  The lawyer's petition to the court must present "sufficient facts" to permit the court to conclude that a higher fee is warranted.  These facts can include "what efforts the client undertook to obtain counsel who is willing to perform the representation for a fee that meets the" presumed reasonable fee set forth in the rule.

Attorney's fees:  effect of non-compliance with ethics rules in fee-shifting litigation.  Amended Rule 4-1.5(e) specifies that non-compliance with the Rules of Professional Conduct concerning attorney's fees may not be used by the opposing side in an attempt to defeat a claim for attorney's fees under a fee-shifting statute.  The new provision states:  "The fact that a contract may not be in accord with these rules is an issue between the attorney and client and a matter of professional ethics, but is not the proper basis for an action or defense by an opposing party when fee-shifting litigation is involved."

Bonus payments to a lawyer's nonlawyer employees.  Amended Rule 4-5.4(a)(4) has been reworded to emphasize that lawyers may pay bonuses to nonlawyer employees only for "work performed" and not for bringing in cases or clients.

Discipline for misconduct prior to bar admission.  New Rule 4-8.1(c) specifies that lawyers are subject to discipline for acts that committed while an applicant for admission to the Bar, but not discovered until after admission, where such acts "adversely reflect[] on the applicant's fitness to practice law."

Criminal investigative work by lawyers.  Amended Rule 4-8.4(c) recognizes that lawyers in criminal law enforcement agencies are authorized to engage in, or supervise others who engage in, undercover investigation even though the conduct may involve deception.

Comments in trial on a witness's credibility.  In response to the Supreme Court's opinion in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000), amended Rule 4-3.4(e) will permit lawyers to offer personal opinions on a witness's credibility if "authorized by current rule or case law."

Inventory attorney designation.  Each bar member practicing in Florida is now required to name another Florida lawyer to serve as "inventory attorney" to help protect clients in the event of the bar member's death, incapacity, or other interruption of his or her practice.  New Rule 1-3.8(e) provides:  "Each member of the bar who practices law in Florida shall designate another member of The Florida Bar who has agreed to serve as inventory attorney under this rule. When the services of an inventory attorney become necessary, an authorized representative of The Florida Bar shall contact the designated member and determine the member’s current willingness to serve.  The designated member shall not be under any obligation to serve as inventory attorney."

Unlicensed practice of law regulation.  Amended Rule 10-2.1(a) clarifies that nonlawyers may assist others in completing only Florida Supreme Court-approved forms, and adds a requirement that the written disclosure of the nonlawyer's limitations be signed by both the nonlawyer and the person being assisted and kept by the nonlawyer for 6 years.

    The Court's opinion, including the full text of the amended rules, is at:  In re: Amendments to the Rules Regulating The Florida Bar, 916 So.2d 655 (Fla. 2005).

RULES REGULATING THE FLORIDA BAR (VARIOUS) (ETHICS, JUDICIAL ADMINISTRATION)

    Responding to a petition from the Florida Bar, the Supreme Court of Florida adopted rule changes making it easier for lawyers from other jurisdictions to provide legal services in Florida on a temporary basis -- the "multijurisdictional practice of law."  These amendments to the Rules Regulating The Florida Bar and the Florida Rules of Judicial Administration take effect on January 1, 2006.  The Court adopted the rule changes proposed by the Florida Bar Board of Governors as a result of the study given to multijurisdictional practice issues by 2 Florida Bar Special Commissions on the Multijurisdictional Practice of Law.  These studies were prompted by actions taken by the ABA Commission on Multijurisdictional Practice.

    The Court's opinion states that the changes were adopted "due to changes in needs and in the practice of law" and that the Court's goal is "to implement changes that improve legal services for the public by permitting the limited, temporary multijurisdictional practice of law but at the same time protecting the public, the legal profession, and the judiciary."  The Court cautioned that the effects of these changes will be monitored, and directed the Florida Bar to report back within 2 years of the January 1, 2006, effective date with any recommendations for improvements or changes.

    The Court divided its discussion of the new rules into 3 areas:  (1) multijurisdictional practice of law in Florida by non-Florida lawyers; (2) disciplinary control over such lawyers; and (3) pro hac vice admission of non-Florida lawyers.

Multijurisdictional practice of law in Florida by non-Florida lawyers.  The Court's opinion noted that the current version of Rule 4-5.5 (titled "Unlicensed Practice of Law") and related case law, which severely restrict the ability of non-Florida lawyers to provide legal services in Florida or involving Florida law, "do[] not recognize the reality of modern legal practices."  The Court therefore amended Rule 4-5.5 to permit "temporary practice" in Florida by non-Florida lawyers.  The amended rule authorizes non-Florida lawyers to provide legal services in Florida in specified situations, which are summarized below.  A non-Florida lawyer, however, may not "except as authorized by other law, establish an office or other regular presence in Florida for the practice of law" or "hold out to the public or otherwise represent that [he or she] is admitted to practice law in Florida."  Amended Rule 4-5.5(b).

    In short, amended Rule 4-5.5(c) provides that lawyers licensed in another U.S. jurisdiction, but not Florida, are authorized to provide legal services in Florida on a temporary basis by:  "(1) associating with a Florida Bar member who actively participates in the matter; (2) engaging in pre-pro hac vice admission activity; (3) rendering legal services in a pending or potential arbitration, mediation, or other alternative dispute resolution context; [and] (4) providing services not covered by the other provisions, based on specific nexus conditions."  Amended Rule 4-5.5(d) authorizes lawyers licensed in certain foreign countries (i.e., those having a "legal profession whose members are admitted to practice as lawyers or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or public authority), but not Florida, to provide legal services in Florida on a temporary basis under conditions similar to the 4 applicable to non-Florida domestic lawyers, as well as in a fifth situation:  "providing services that are governed primarily by international law or the law of a non-U.S. jurisdiction in which the lawyer is a member."

Disciplinary control over non-Florida lawyers providing legal services in Florida.  In order to protect the public interest, the Court amended several disciplinary procedure rules "to create a process for meaningful discipline of a lawyer" in both Florida and the jurisdiction(s) in which the lawyer is licensed to practice.  For example, amended Rule 3-4.1 provides that the Florida Supreme Court and its agencies have disciplinary jurisdiction over non-Florida lawyers who provide or offer to provide legal services in Florida.  Amended Rule 3-4.6 provides that a lawyer is subject to discipline in Florida regardless of where the lawyer's misconduct occurs

Pro hac vice admission of non-Florida lawyers.  The Court amended Florida Rule of Judicial Administration 2.061 and Rules Regulating The Florida Bar concerning pro hac vice admission of non-Florida lawyers.  Amended Fla.R.Jud.Admin. 2.061 specifies that a non-Florida lawyer is presumed to be engaging in a "general practice" in Florida if he or she makes more than 3 appearances in a 365-day period in "separate representations."  The amended rule deletes language in the existing version of the rule "that authorized judicial discretion to permit more than three pro hac vice appearances in a 365-day period and to allow additional pro hac vice appearances in related litigation" (footnote omitted).  The Court stated that this change was due to "reports that non-Florida attorneys were abusing the current rule."

    Additionally, the Court adopted new Rule 1-3.11, Rules Regulating The Florida Bar (entitled "Appearance by Non-Florida Lawyer in an Arbitration Proceeding in Florida"), which "sets forth procedures for an attorney licensed in another state or foreign country to represent a client in an arbitration proceeding in Florida on a temporary basis.  The appearance must be for a client who resides or has an office in the lawyer's home state, or is an appearance that arises out of, or is reasonably related to, the lawyer's practice in a jurisdiction in which the lawyer is admitted."  Although new Rule 1-3.11 does establish different procedures for standard arbitration and international arbitration, the Court explained that "the new rule is an attempt to balance the regulation of out-of-state practitioners, protection of the public, expansion of the multijurisdictional practice of law, and recognition of international business practices."  In re:  Amendments to the Rules Regulating The Florida Bar and the Florida Rules of Judicial Administration, 907 So.2d 1138 (Fla. 2005).

    NOTE:  As a result of the "exigent circumstances" caused by Hurricane Katrina, the Florida Supreme Court ordered that the amendments to Rule 4-5.5 (as well as the amendments to Rules 3-2.1, 3-4.1, 3-4.6, and 3-7.2) become effective on September 14, 2005.     In re:  Amendments to the Rules Regulating the Florida Bar and the Rules of Judicial Administration (Fla., No. SC04-135, Emergency Order, 9/14/2005).

CIVIL PROCEDURE

    Ruling on the rules amendments proposed by the Florida Bar Civil Procedure Rules Committee on its 2-year cycle, the Florida Supreme Court has amended several of the Florida Rules of Civil Procedure including those relating to discovery sanctions, dismissals for failure to prosecute, and attorney's fees.  Some key changes are highlighted below.

Motions for Discovery Sanctions.  Rule 1.380 was amended to require that a motion to comply with discovery requirement contain a certification by the moving lawyer stating that they have made a good-faith attempt to resolve the dispute with opposing counsel before filing the motion to compel.

Dismissals for failure to prosecute.  Rule 1.420 was amended to provide "that after ten months of record inactivity, notice may be served on the parties by any interested person, the court, or the clerk of the court, indicating that no record activity has occurred.  Following proper service of the notice, the party has sixty days to conduct record activity in order to avoid dismissal.  After sixty days, if no record activity takes place, reasonable notice shall be provided to the parties and the action shall be dismissed in the absence of a demonstration of good cause."

Motions for attorney's fees.  Rule 1.525 was amended to address a practical problem regarding exactly when a motion for attorney's fees must be served in order to be effective.  (See, e.g., Norris v. Treadwell, 907 So.2d 1217 (Fla. 1st DCA 2005) (motion effective when filed and served after adverse jury verdict but before filing of judgment).)  The former rule stated that the motion must be served "within" 30 days after the judgment is filed.  The amended rule provides that the motion must be served "no later than" 30 days after filing of the judgment.

    These amendments take effect on January 1, 2006.  In re:  Amendments to the Florida Rules of Civil Procedure (Two Year Cycle), 917 So.2d 176 (Fla. 2005).

PRO HAC VICE ADMISSION TO FLORIDA COURTS AND ARBITRATIONS

    Click here for a summary of relevant rule changes, authored by Board of Governors member Brian Burgoon.

Fee for Florida Bar review of lawyer ads goes up to $150 on 1/1/2006.  [Added 12/15/05]  --  In re: Amendments to the Rules Regulating The Florida Bar, 916 So.2d 655 (Fla. 2005).

Florida Bar Professional Ethics Committee advises lawyers representing criminal defendants who intend to commit perjury.  [Added 7/4/05]  --  Florida Ethics Opinion 04-1.

SUPREME COURT AMENDS RULES REGULATING FLORIDA BAR AND RULES OF JUDICIAL ADMINISTRATION TO ADDRESS MULTIJURISDICTIONAL PRACTICE OF LAW  [Added 5/12/05]

    Responding to a petition from the Florida Bar, the Supreme Court of Florida adopted rule changes making it easier for lawyers from other jurisdictions to provide legal services in Florida on a temporary basis -- the "multijurisdictional practice of law."  These amendments to the Rules Regulating The Florida Bar and the Florida Rules of Judicial Administration take effect on January 1, 2006.  The Court adopted the rule changes proposed by the Florida Bar Board of Governors as a result of the study given to multijurisdictional practice issues by 2 Florida Bar Special Commissions on the Multijurisdictional Practice of Law.  These studies were prompted by actions taken by the ABA Commission on Multijurisdictional Practice.

    The Court's opinion states that the changes were adopted "due to changes in needs and in the practice of law" and that the Court's goal is "to implement changes that improve legal services for the public by permitting the limited, temporary multijurisdictional practice of law but at the same time protecting the public, the legal profession, and the judiciary."  The Court cautioned that the effects of these changes will be monitored, and directed the Florida Bar to report back within 2 years of the January 1, 2006, effective date with any recommendations for improvements or changes.

    The Court divided its discussion of the new rules into 3 areas:  (1) multijurisdictional practice of law in Florida by non-Florida lawyers; (2) disciplinary control over such lawyers; and (3) pro hac vice admission of non-Florida lawyers.

Multijurisdictional practice of law in Florida by non-Florida lawyers.  The Court's opinion noted that the current version of Rule 4-5.5 (titled "Unlicensed Practice of Law") and related case law, which severely restrict the ability of non-Florida lawyers to provide legal services in Florida or involving Florida law, "do[] not recognize the reality of modern legal practices."  The Court therefore amended Rule 4-5.5 to permit "temporary practice" in Florida by non-Florida lawyers.  The amended rule authorizes non-Florida lawyers to provide legal services in Florida in specified situations, which are summarized below.  A non-Florida lawyer, however, may not "except as authorized by other law, establish an office or other regular presence in Florida for the practice of law" or "hold out to the public or otherwise represent that [he or she] is admitted to practice law in Florida."  Amended Rule 4-5.5(b).

    In short, amended Rule 4-5.5(c) provides that lawyers licensed in another U.S. jurisdiction, but not Florida, are authorized to provide legal services in Florida on a temporary basis by:  "(1) associating with a Florida Bar member who actively participates in the matter; (2) engaging in pre-pro hac vice admission activity; (3) rendering legal services in a pending or potential arbitration, mediation, or other alternative dispute resolution context; [and] (4) providing services not covered by the other provisions, based on specific nexus conditions."  Amended Rule 4-5.5(d) authorizes lawyers licensed in certain foreign countries (i.e., those having a "legal profession whose members are admitted to practice as lawyers or counselors at law or the equivalent and are subject to effective regulation and discipline by a duly constituted professional body or public authority), but not Florida, to provide legal services in Florida on a temporary basis under conditions similar to the 4 applicable to non-Florida domestic lawyers, as well as in a fifth situation:  "providing services that are governed primarily by international law or the law of a non-U.S. jurisdiction in which the lawyer is a member."

Disciplinary control over non-Florida lawyers providing legal services in Florida.  In order to protect the public interest, the Court amended several disciplinary procedure rules "to create a process for meaningful discipline of a lawyer" in both Florida and the jurisdiction(s) in which the lawyer is licensed to practice.  For example, amended Rule 3-4.1 provides that the Florida Supreme Court and its agencies have disciplinary jurisdiction over non-Florida lawyers who provide or offer to provide legal services in Florida.  Amended Rule 3-4.6 provides that a lawyer is subject to discipline in Florida regardless of where the lawyer's misconduct occurs

Pro hac vice admission of non-Florida lawyers.  The Court amended Florida Rule of Judicial Administration 2.061 and Rules Regulating The Florida Bar concerning pro hac vice admission of non-Florida lawyers.  Amended Fla.R.Jud.Admin. 2.061 specifies that a non-Florida lawyer is presumed to be engaging in a "general practice" in Florida if he or she makes more than 3 appearances in a 365-day period in "separate representations."  The amended rule deletes language in the existing version of the rule "that authorized judicial discretion to permit more than three pro hac vice appearances in a 365-day period and to allow additional pro hac vice appearances in related litigation" (footnote omitted).  The Court stated that this change was due to "reports that non-Florida attorneys were abusing the current rule."

    Additionally, the Court adopted new Rule 1-3.11, Rules Regulating The Florida Bar (entitled "Appearance by Non-Florida Lawyer in an Arbitration Proceeding in Florida"), which "sets forth procedures for an attorney licensed in another state or foreign country to represent a client in an arbitration proceeding in Florida on a temporary basis.  The appearance must be for a client who resides or has an office in the lawyer's home state, or is an appearance that arises out of, or is reasonably related to, the lawyer's practice in a jurisdiction in which the lawyer is admitted."  Although new Rule 1-3.11 does establish different procedures for standard arbitration and international arbitration, the Court explained that "the new rule is an attempt to balance the regulation of out-of-state practitioners, protection of the public, expansion of the multijurisdictional practice of law, and recognition of international business practices."  In re:  Amendments to the Rules Regulating The Florida Bar and the Florida Rules of Judicial Administration, 907 So.2d 1138 (Fla. 2005).

    NOTE:  As a result of the "exigent circumstances" caused by Hurricane Katrina, the Florida Supreme Court ordered that the amendments to Rule 4-5.5 (as well as the amendments to Rules 3-2.1, 3-4.1, 3-4.6, and 3-7.2) become effective on September 14, 2005.     In re:  Amendments to the Rules Regulating the Florida Bar and the Rules of Judicial Administration (Fla., No. SC04-135, Emergency Order, 9/14/2005).

Florida Supreme Court rescinds complete exemption from Basic Skills Course requirement for government lawyers, and modifies remaining exemption and deferral provisions.  [Added 5/12/05]  --  In re:  Amendments to the Rules Regulating The Florida Bar, 903 So.2d 183 (Fla. 2005).

Florida Rule of Civil Procedure 1.525 (attorney's fees) no longer applies in family law proceedings.  [Added 3/3/05]  --  New Family Law Rule of Procedure 12.525 is effective immediately.  Amendments to the Florida Family Law Rules of Procedure (Rule 12.525), 897 So.2d 467 (Fla. 2005).

Florida Supreme Court concludes it may not encroach on executive branch's authority by adopting workers' compensation procedure rules.  [Added 12/3/04]  --  Amendments to the Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004).

 Florida Supreme Court  adopts new forms and amends rules to implement its decision to authorize "unbundled legal services."  [Added 9/16/04]  --  Amendments to the Florida Family Law Rules of Procedure, 883 So.2d 1285 (Fla. 2004).

ACTING ON FLORIDA BAR'S PETITION, FLORIDA SUPREME COURT REVISES BAR RULES (INCLUDING RULES OF PROFESSIONAL CONDUCT)  [Added 5/20/04]

    The Supreme Court of Florida has acted on The Florida Bar’s petition to amend a number of the Rules Regulating The Florida Bar.  The petition, which was filed in April 2003, requested that the Court revise a number of rules, including several Rules of Professional Conduct.  Some of the key areas affected include lawyer advertising, attorney's fees and costs, and lawyer disciplinary procedures.  Amendment to the Rules Regulating The Florida Bar, 875 So.2d 563, 29 Fla.L.Weekly S265 (Fla., No. SC03-705, 5/20/2004), corrected opinion at 29 Fla.L.Weekly S379.  The amendments are effective immediately.

Highlights from the Court’s 227-page order appear below.  References to "Rule" or "Rules" are to the Rules Regulating The Florida Bar.  (Chapter 4 of the Rules Regulating The Florida Bar contains the Rules of Professional Conduct.)  The sunEthics.com rules have been updated to reflect the amendments; click here to access the Rules of Professional Conduct as revised.

    Significant Changes

Lawyer advertising regulations.  The Court’s adoption of the Bar’s proposals effectively relaxed restrictions on lawyer advertising in several significant ways:

Use of a spokesperson’s voice or image in TV and radio ads is prohibited where it is "recognizable to the public." Rule 4-7.5(b)(1)(B).  The revised regulations governing TV and radio ads prohibit features that are "deceptive, misleading, manipulative, or . . . likely to confuse the viewer."  Amended Rule 4-7.5(b)(1)(A).  (This prohibition also applies to all illustrations in all ads. Rule 4-7.2(c)(1).)  All statements required to be included in lawyer ads must be "clearly legible if written or intelligible if spoken aloud."  The requirement that mandated written disclosures be "no smaller than one-quarter the size of the largest type otherwise appearing in the advertisement" is continued, though moved to a different rule.  Amended Rule 4-7.2(c)(11).  Direct mail advertisements no longer are limited to being on letter-sized paper.  Amended Rule 4-7.4(b)(2)(H).

Costs charged to clients.  Rule 4-1.5 is amended to specifically provide that a lawyer’s costs must be reasonable.  (The rule presently imposes this standard for a lawyer’s fees.)  The revised rule lists factors to be considered in determining reasonable costs.  This new rule can benefit lawyers in at least 2 ways.  First, it contains a "safe harbor" provision specifying that a lawyer’s costs "shall be presumed reasonable" when there is a written attorney-client contract "in which the method is established for charging costs."  Amended Rule 4-1.5(b).  Second, new language in the Comment to Rule 4-1.5 approves the practice of lawyers using charges for "in-house costs" (such as "copying, faxing, long distance telephone, and computerized research") and "in-house services" (such as "paralegal services, investigative services, accounting services, and courier services") as profit centers.  Amended Rule 4-1.5(a), (b) and Comment.

Trust accounting rules.  Rule 5-1.1 as amended retains the prohibition on commingling lawyer and client funds in a trust account, but now specifically authorizes a lawyer to "maintain funds belonging to the lawyer in the trust account in an amount no more than is reasonably sufficient to pay bank charges relating to the trust account."  This revision codifies a practice that the Bar has informally permitted for years.  Amended Rule 5-1.1(a)(1).

Accepting credit cards for all payment purposes.  Rule 4-1.5(h) previously permitted lawyers to accept credit cards only for services actually rendered or cash actually paid on behalf of a client. The amended version removes this limitation.  Additionally, the revised Comment to the Rule now expressly states a position long held by the Bar – that a lawyer who accepts a credit card payment for an advance of fees or costs must place these funds in a trust account and add to them "the lawyer’s own money . . . in an amount equal to the amount charged" by the credit card company for doing business with it.  Amended Rule 4-1.5(h) and Comment.

Duty of candor to the tribunal.  Rule 4-3.3 requires a lawyer to take reasonable remedial measures when the lawyer has unknowingly submitted false testimony or other evidence to a tribunal.  The Comment to the Rule previously indicated that rectification might require disclosure "to the court or to the other party."  The revised Comment no longer refers to a duty to disclose to "the other party;" it thus appears a lawyer’s sole duty of disclosure, where that duty applies, is to the court.  Comment to Rule 4-3.3.

Communicating with persons represented by counsel.  Rule 4-4.2 generally prohibits a lawyer from communicating with a person known to be represented by another lawyer unless that lawyer consents (or unless one of the very limited exceptions set forth in the rule applies).  The Court’s revision of the Comment to Rule 4-4.2 should help clear up some long-standing confusion regarding an exception to the general prohibition.  The ethics rules of many states, as well as ABA Model Rule of Professional Conduct 4.2, contain an exception for communications that are "authorized by law."  Florida’s Rule 4-4.2, however, has never had that exception – but, despite this intentional deviation from the ABA’s Model Rule, the Comment to Florida Rule 4-4.2 did include the Model Rule’s reference to "communications authorized by law."  (It is unclear why this language was left in the Comment, but it appears to be a simple drafting oversight.)  The exact scope and application of the "authorized by law" exception has been hotly disputed; see Florida Ethics Opinion 90-4.  The Court’s amendment to the Comment removes the controversial language and substitutes the term "permitted communications."  Comment to Rule 4-4.2.

Accepting referrals from lawyer referral services.  The revision to Rule 4-7.11 places additional burdens on lawyer referral services and lawyers who accept referrals from those services.  Under the amended rule, a lawyer referral service now must:  quarterly provide the Florida Bar with "the names of all persons authorized to act on behalf of the service;" respond to official Bar inquiries "in writing, within 15 days;" and use "its actual legal name or a registered fictitious name in all communications with the public."  Rule 4-7.11(a)(6), (7), (9).  How can the Bar enforce these (and other) requirements against a referral service owned and operated by non-lawyers?  The answer is in the amended rule, which mandates that any lawyer who accepts referrals from the service "is responsible for ensuring . . . that the service is in compliance with" these rules.  Rule 4-7.11(b).  Amended Rule 4-7.11.

Sexual relations between lawyer and client.  The previous version of Rule 4-8.4(i) prohibited lawyer-client sexual relationships under certain circumstances. In her concurring opinion in The Florida Bar v. Bryant, 813 So.2d 38 (Fla. 2002), Justice Pariente had urged the Bar to consider a complete ban on such relationships.  The Bar responded with a recommendation that imposed further restrictions but fell short of a complete ban.  The revised rule provides that a lawyer may not "engage in sexual conduct with a client or a representative of a client that exploits or adversely affects the interests of the client or the lawyer-client relationship."  Rule 4-8.4(i).  New language provides examples of offending conduct, including demanding sexual relations as a condition of representation, coercing or intimidating a client into acquiescing to sexual relations, or allowing the sexual relationship to cause the lawyer to render incompetent representation.  New language in the Comment provides that a "client" means not only an individual but "a representative of the client, including but not limited to a duly authorized constituent of" a corporate or institutional client.  Justice Pariente also wrote a concurring opinion in this case, requesting "that this rule be assessed periodically to ensure that it operates to guarantee that the attorney-client relationship is not compromised in any regard as a result of an ongoing sexual relationship."  Amended Rule 4-8.4(i) and Comment.

Employment restrictions on disciplined lawyers.  Rule 3-6.1 permits a lawyer who has been disbarred or suspended, or who has resigned for disciplinary reasons, to work for a law firm under certain conditions (e.g., notice to the Bar, no direct client contact).  New subdivision (c) prohibits such a lawyer from working under the supervision of any lawyer who was supervised by the disciplined lawyer on or after the time the disciplinary problem arose; this prohibition lasts for 3 years from the date of the discipline or until the disciplined lawyer is reinstated to practice (whichever occurs sooner).  The new rule was prompted by the Bar’s observation that in several instances "a suspended lawyer hires a new associate to continue his or her law practice during a short-term suspension, and the suspended lawyer thereafter ‘works for’ that new associate" during the suspension.  New Rule 3-6.1(c).

    Other Changes

Accepting gifts from clients.  The revised Comment to Rule 4-1.8(c) specifies that a lawyer may accept a gift from a client that meets general standards of fairness "if the lawyer does not prepare the instrument bestowing the gift."  If a legal instrument is necessary to effectuate the gift, the lawyer "should advise the client to seek the advice of independent counsel."  Amended Comment to Rule 4-1.8.

UPL procedures and remedies.  Amendments to