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Florida Bar Re: Amendments to Rules Regulating the Florida Bar
Citations: 587 So. 2d 1121; 16 Fla. L. Weekly Supp. 684; 1991 Fla. LEXIS 1750; 1991 WL 203462Docket: Nos. 77613 to 77615, 77873 and 77963
Court: Supreme Court of Florida; October 10, 1991; Florida; State Supreme Court
The Florida Bar submitted five petitions to amend its regulatory rules, authorized by its board of governors and published in The Florida Bar News. The Florida Supreme Court consolidated these petitions and approved the Bar’s proposals with modifications. Specifically, proposed rule 1-12.1(a) was amended by removing "create or," limiting the board’s authority to amend Chapters 7 and 9. Additionally, rule 1-12.1(f) was modified to require that petitions for rule amendments from Bar members be submitted within 90 days of filing with The Florida Bar. The amended rules will take effect on January 1, 1992. The document also outlines rules regarding membership and resignation. A member in good standing may resign with board approval, after which they cannot practice law or enjoy privileges of active membership. Members suspended for failing to meet continuing legal education (CLE) requirements are categorized as delinquent and also cannot practice. Exempt members, except those on active military duty, are similarly barred from practicing law. The retirement provisions allow members over 70 years old or with 35 years of practice, or those physically unable to practice, to retire with board approval, contingent upon settling all dues and fulfilling CLE requirements. Retired members may also receive privileges determined by the board. Any licensed attorney in Florida who fails to pay dues or meet continuing legal education requirements is classified as a delinquent member and is prohibited from practicing law or accessing the privileges of active members in good standing. Members who have been retired, delinquent in dues, or delinquent in continuing education for up to five years are eligible for reinstatement. To seek reinstatement, individuals must submit a petition to the board of governors, detailing the reasons for their previous status and demonstrating good cause for reinstatement. This petition must be on an approved form and accompanied by a nonrefundable $50 reinstatement fee, payment of all outstanding dues, and, if applicable (for those delinquent over three years), a $500 investigation cost deposit. Inactive members are exempt from paying these fees. Reinstatement will be denied if the applicant is found to lack good moral character or is still non-compliant with education requirements. For those who have been retired or delinquent for less than three years, the executive director may approve reinstatement under specific guidelines. Members who have been inactive for three to five years may need to complete 10 hours of continuing legal education for each year of inactivity or retake portions of The Florida Bar exam prior to reinstatement. Decisions made by the board of governors to deny reinstatement can be reviewed by the Supreme Court of Florida. Members delinquent for more than five years must apply to and receive approval from the Florida Board of Bar Examiners for reinstatement. Inactive members wishing to return must follow the same petition process as other members. Members of The Florida Bar who have been inactive for over five years may face different continuing legal education (CLE) requirements based on their legal practice status during that time. If they have actively practiced law in another jurisdiction or held an attorney-required position, they may only need to complete the Florida Law Update course. Conversely, if they have not practiced law or held such a position, they may need to complete both a basic skills course and a thirty-hour CLE requirement. Reinstatement for inactive members is contingent upon fulfilling all CLE requirements and paying any outstanding dues. Amendments to the bylaws in Chapter 2 can be proposed by members of The Florida Bar to the board of governors and the court. For revisions to the Rules Regulating The Florida Bar (excluding Chapters 2, 7, and 9), petitions can be filed by the board or at least fifty active members, with a notice published in The Florida Bar News at least thirty days prior to filing. The board of governors has the authority to amend Chapters 7 and 9, while only the Supreme Court of Florida can amend the other chapters. Members can propose amendments, which will be reviewed by the board through a committee process, and notice will be provided in advance of board actions. Members may comment on proposed amendments, and any petitions for amendments must be filed within ninety days following their submission to The Florida Bar. Notice of intent to file a petition for amending the Rules Regulating The Florida Bar must be published in The Florida Bar News at least 30 days prior to filing. The notice must include the text of the proposed amendments, the filing date, and a statement that comments or objections are due within 30 days post-filing. All comments or objections must be served on the Executive Director of The Florida Bar and any other relevant parties. The Supreme Court of Florida will review all proposed amendments, which will not take effect until approved by the court. Final decisions will be reported in The Florida Bar News. The court retains the authority to waive any provisions of this rule for good cause. For time computation under these rules, the day of an act or event is excluded from the period calculation. The last day is included unless it falls on a weekend or holiday, in which case the period extends to the next business day. If a notice is served by mail, an additional 5 days is added to the response period. Proposed amendments to the bylaws can be submitted by any member in good standing or interested individual, with submissions made to the Executive Director at least ten days before a regular board meeting. The Executive Director must share the proposal with the board 24 hours before the vote. Amendments require a majority vote from the board members and must be published in The Florida Bar News at least 20 days before the next board meeting. If unchanged except for clerical errors, the Executive Director will file the amendment with the clerk of the Supreme Court within 20 days of publication, including necessary documentation. Any objections or comments regarding the proposed amendment may be filed with the Supreme Court within 15 days following the board meeting. The amendment will become effective 50 days after filing unless a petition for review is signed by 50 members in good standing or objections are filed, in which case it will not take effect until 90 days after filing unless otherwise ordered by the Court. Refusal by the board of governors to adopt proposed amendments can be challenged in the Supreme Court of Florida through a petition signed by fifty members of The Florida Bar within 90 days of the meeting’s adjournment. Amendments to the bylaws require submission to the executive director at least 60 days prior to a meeting, publication in The Florida Bar News 30 days before the meeting, inclusion in the meeting's official program, and availability of copies to attendees. Adopted amendments are filed with the Supreme Court clerk; they take effect unless the Supreme Court intervenes or the board of governors elects to challenge the amendment with a two-thirds vote. Confidentiality is emphasized in disciplinary proceedings governed by Rule 3-7.1, with all documents and proceedings, except circuit court matters, being confidential. The public record includes the grievance committee’s and referee’s records, and materials shared with the respondent or complainant. Circuit court and contempt proceedings are public information despite the confidentiality of underlying matters. Confidential materials remain protected under applicable law, but can be sealed if made part of the public record. Disclosure of the existence of proceedings is allowed for complainants, respondents, and witnesses, while representatives of The Florida Bar may confirm the status of public domain proceedings. Respondents in disciplinary proceedings must disclose the existence of a disciplinary file to their current and former law firms within 15 days, using a specified written notice format. Disciplinary matters under investigation are confidential, except in cases of minor misconduct or where probable cause has been found, which become public information. Disciplinary cases concluding with no probable cause are also public. The Florida Bar may release public records under subpoena and can inform judges about confidential cases while requiring them to maintain confidentiality. Information regarding criminal activities can be disclosed despite confidentiality. Confidentiality is also maintained for attorneys seeking treatment for substance abuse unless the attorney consents to its disclosure. If false public statements are made about a confidential case, The Florida Bar may correct them by disclosing necessary information. Respondents may waive confidentiality, allowing The Florida Bar to share details with certain evaluative bodies regarding character and fitness for legal practice or judicial office. A lawyer representing an organization must take appropriate action if they know that an officer, employee, or associated person is violating legal obligations or laws that could harm the organization. The lawyer should consider the violation's seriousness, consequences, and the organization's policies while minimizing disruption and confidentiality risks. Potential actions include urging reconsideration, recommending a separate legal opinion, or escalating the matter to higher authorities within the organization. If the highest authority insists on actions that violate the law, the lawyer may resign. When interacting with the organization’s constituents, the lawyer must clarify the organization's identity as the client, especially when its interests conflict with those of the constituents. The lawyer can represent both the organization and its constituents if proper consent is obtained, which must come from an appropriate official or shareholders, not the individual being represented. The organizational client acts through its constituents, whose communications with the lawyer in their official capacity are protected under confidentiality rules. However, these constituents are not clients of the lawyer, and the lawyer cannot disclose information about the representation to them unless authorized by the organization. Constituents of an organization typically make decisions that lawyers must accept, even if the decisions are questionable in utility or prudence. However, if a lawyer becomes aware that a constituent's actions may significantly harm the organization and violate the law, the lawyer may need to request the constituent to reconsider. If this fails, or if the issue is serious, the lawyer might need to escalate the matter to a higher authority within the organization, justifying the need for such action. The organization's policy may outline review processes, and lawyers should promote the establishment of such policies. In the absence of a formal policy, the obligation to refer the matter may still exist, especially if the constituent has motives that conflict with the organization's interests. Matters of significant importance might require review by the chief executive officer or board of directors, and in extreme cases, an independent legal opinion may be necessary. The highest authority usually resides with the board of directors, although legal stipulations may assign this role elsewhere, such as to independent directors. The authority and responsibilities outlined here are consistent with other legal rules, including those relating to confidentiality and the prevention of crime or fraud. This obligation also extends to governmental organizations, where maintaining confidentiality must be balanced against the need to prevent or rectify wrongful acts, complicating the definition of the client. In governmental contexts, the client may be viewed as the government as a whole or a specific agency, particularly when government officials' conduct is involved. A government lawyer may have broader authority to address misconduct than a private organization’s lawyer. Lastly, if a conflict arises between the organization’s interests and those of a constituent, the lawyer must inform the affected constituent about the conflict and recommend independent legal representation. Constituents must be informed that, in cases of conflicting interests, the organization's lawyer cannot represent them, and communications may not be privileged. The necessity of such a warning depends on case-specific facts. Dual representation is permitted, allowing an organization's lawyer to also represent principal officers or major shareholders. Shareholders and members of corporations or unincorporated associations have the right to initiate derivative actions to compel directors to fulfill their duties. While such actions are typically defended by the organization's lawyer, conflicts may arise if serious wrongdoing is alleged against those in control, necessitating adherence to rule 4-1.7 for representation decisions. An attorney representing a corporation is not automatically assumed to represent affiliated organizations unless specific exceptions apply, such as the affiliate being the alter ego of the client or confidential information being disclosed with the expectation of non-adverse use. Without these exceptions, an attorney may represent clients adverse to affiliates of current or former clients. Regarding communication with represented persons, a lawyer must not engage in discussions about the representation subject with someone known to be represented by another attorney unless consent is granted. However, a lawyer may communicate with another's client without consent for statutory or contractual obligations, limited to required notices. Communication is permitted on unrelated matters, and parties may directly communicate with each other if justified. Lawyers representing one party in an organizational context are prohibited from communicating about the matter with individuals who have managerial responsibilities for that organization or other individuals whose actions could lead to civil or criminal liability for the organization, or whose statements might be considered admissions by the organization. If an employee or agent of the organization has their own legal representation, consent from that attorney suffices for communication under this rule. This rule also applies to any individuals represented by counsel regarding the matter, regardless of their party status in formal proceedings. Regarding trust accounts, attorneys must hold client funds or property in trust, using them solely for the designated purpose. Client funds cannot be used to offset attorney fees, and failure to return such funds upon request constitutes conversion. However, valid liens on funds for services rendered or agreed fee payments from transaction proceeds are permitted. Fee disputes do not warrant disciplinary action unless the fees are clearly excessive, extortionate, or fraudulent. In such cases, a willingness to submit the fee dispute to a tribunal may be considered during disciplinary proceedings. Trust accounts must be clearly labeled and any safe deposit boxes used in legal practice must be located in Florida unless the client consents otherwise. Attorneys must maintain records of all trust accounts and client property for at least six years after the conclusion of representation. These records should detail all financial transactions related to client funds, ensuring transparency and accountability in the management of client property. Allegations of violations by members of The Florida Bar necessitate the production of relevant records for inspection by designated representatives of the Bar, as directed by the court or grievance committees. Such records are admissible in proceedings under this rule, with notice given to affected clients unless they are already aware. Measures must be taken to protect client confidences, which could include redaction or sealed submissions. Noncompliance in maintaining or producing records may lead to disciplinary action, and costs incurred from related audits can be charged to the respondent. All attorneys in Florida handling trust money must adhere to minimum trust accounting standards and maintain appropriate records. Trust funds deemed "nominal or short-term" must be deposited in an Interest on Trust Accounts (IOTA) program for the benefit of The Florida Bar Foundation. This includes defining nominal or short-term funds, establishing IOTA accounts at eligible financial institutions, and ensuring compliance with interest rate requirements. Attorneys must certify their compliance annually, and IOTA accounts must offer immediate withdrawal capabilities. Interest rates on IOTA accounts should match or exceed those available to non-IOTA depositors. Lawyers or law firms are required to instruct financial institutions regarding the management of IOTA accounts. Key obligations include: 1. **Frequency of Remittances**: Financial institutions must remit interest from IOTA accounts to the Foundation at least quarterly, deducting reasonable service charges. 2. **Statement to the Foundation**: Each remittance must include a detailed statement identifying the lawyer or law firm, their IOTA account number, the interest rate, the period covered, total interest earned, service charges, and the net interest remitted. 3. **Report to Law Firm**: A report must be sent to the depositing lawyer or law firm with details on the remittance amount, interest rate, and reporting period. 4. **Notice to Foundation**: Lawyers or law firms must notify the Foundation of their IOTA account establishment, providing the account number, the lawyer or law firm’s name, financial institution details, and attorney identification numbers. 5. **Determination of Nominal or Short-Term Funds**: Lawyers must use good faith judgment to assess whether client or third-party funds are nominal or short-term, considering factors such as the amount held, expected duration, potential delays, costs of maintaining interest-bearing accounts, and any applicable fees. This determination rests solely on the lawyer’s judgment, and they will not face ethical breaches for their good faith decisions. 6. **Small IOTA Accounts**: The Foundation may allow procedures for maintaining interest-free trust accounts when nominal or short-term funds do not generate sufficient interest income after accounting for service charges. 7. **Confidentiality**: Confidentiality provisions are implied but not detailed in this excerpt. The Foundation is tasked with safeguarding the confidentiality of information concerning a lawyer's or law firm's trust accounts, specifically in cases involving unidentifiable trust fund accumulations and funds for missing owners as per rule 5-1.1(d. e). When a trust account holds unidentifiable funds or property for missing owners, these must be designated accordingly. The attorney must conduct a diligent search to identify the beneficial owner or locate the missing owner. If identified, the funds are to be classified as the lawyer's trust property. Should a missing owner be found, the funds are to be returned to them if they are entitled. Unidentified funds and those held for missing owners, if still untraceable after due diligence, will be disposed of following chapter 717 of the Florida Statutes. Regarding disbursement against uncollected funds, attorneys are generally prohibited from using trust money for another client's business without explicit consent after full disclosure. However, certain deposit categories allow disbursements from trust accounts without client notification or permission. "Collected funds" refer to those deposited, finally settled, and credited to the lawyer’s trust account. Exceptions permitting disbursements from uncollected deposits include deposits made by certified checks, bank-issued checks representing loan proceeds, or checks from other trust accounts, provided the lawyer has reasonable assurance the funds will clear promptly. Deposit by check or draft from an authorized insurance company may be relied upon by a lawyer for disbursement if the lawyer believes the instrument will clear as collected funds within a reasonable timeframe. Disbursement from a trust account based on deposits not yet cleared, which endangers or encumbers other clients' funds, can lead to professional misconduct findings. The lawyer bears the risk of disbursement; upon learning of a deposit failure, immediate action is required to protect other clients’ property. If the lawyer compensates for a failed deposit from personal funds or other non-client trust sources, they are not considered professionally negligent. The rules regarding trust accounting apply to all funds handled by members of The Florida Bar, with exceptions for special trust funds managed in segregated accounts under specific legal authority. The minimum required trust accounting records include: 1. A designated trust account in Florida, unless otherwise directed by the client. 2. Documentation for all trust fund receipts, including deposit slips and cash receipts. 3. Canceled checks numbered consecutively. 4. Supporting documentation for disbursements and transfers. 5. A detailed cash receipts and disbursements journal. 6. Individual ledgers for each client or matter, tracking all transactions and balances. These records must comprehensively capture the identification of clients or matters, dates, check numbers, and the reasons for all transactions. All attorneys in Florida handling trust money or property must adhere to minimum trust accounting procedures, including monthly reconciliations of all trust accounts, which must detail the balance per bank, deposits in transit, outstanding checks, and discrepancies between bank balances and ledger totals. An annual listing of unexpended trust money for each client is required, with all records retained for at least six years. Attorneys must also ensure banks notify The Florida Bar if any trust checks are returned due to insufficient or uncollected funds, and file an annual trust accounting certificate between June 1 and August 15 to demonstrate compliance. Audits can be triggered by factors such as failure to file the required certificate, returned checks, bankruptcy petitions, felony charges against the attorney, mental incompetence, claims against the attorney, or requests from grievance committees or court orders. The attorney will bear the audit costs if noncompliance is found. During an audit, attorneys must provide all relevant trust records and explanations, although general account records are only required to verify that trust money has not been deposited into them. Attorneys must maintain trust accounting records and cannot claim personal privilege to avoid producing these records in disciplinary proceedings. Noncompliance notices can only be filed with the Supreme Court if a grievance committee finds no good cause for the failure to comply, with findings to be issued within 30 days of the request. A member of The Florida Bar who fails to comply with a subpoena for trust accounting records, after notice is filed with the Supreme Court of Florida, may face suspension from practicing law until compliance is achieved or the court orders otherwise. The member can petition the court within 10 days to withhold or modify the suspension order, with potential referral to a referee for evidence gathering. The Florida Certification Plan stipulates that no certification lasts longer than five years, requiring ongoing proficiency through substantial involvement, a minimum of 10 hours of continuing legal education annually, and a satisfactory peer review and ethics record. Applicants for recertification must be in good standing with The Florida Bar and cannot have a history of disciplinary actions. Applicants who fail to meet recertification standards must fulfill initial certification requirements. Standards for becoming a "Board Certified Estate Planning and Probate Lawyer" are established to identify lawyers with specialized knowledge and skills in estate planning and probate law, including tax implications, legal instrument preparation, estate administration, and probate litigation. Legal work primarily conducted for purposes aside from legal advice or representation, such as insurance sales or professional practices outside law, is not classified as the practice of law. Serving as a judge is recognized as practicing law. Part-time legal practice is acceptable if the applicant also teaches estate planning or probate subjects at an accredited law school. Applicants must have five years of legal practice in the U.S. or U.S. law abroad and be in good standing with a state bar. An LL.M. degree in taxation or estate planning from an approved law school counts as one year of practice towards the five-year requirement, but credit cannot exceed one year within any twelve-month period. To demonstrate substantial involvement, applicants must show at least 40% of their practice dedicated to estate planning and probate matters in the two years preceding their application. Serving as a judge in the probate division for six months in a year fulfills this requirement. The board may waive the five-year “immediately preceding” rule under special circumstances. An LL.M. degree in estate planning from an approved law school may also substitute for one year of substantial involvement. Applicants must provide details about their work frequency and the nature of the issues handled. The "practice of law" includes activities defined in rule 6-7.2(b) and expands to encompass lecturing and authoring on estate planning and probate, provided the applicant was actively practicing law during that time. Compliance is initially demonstrated through a questionnaire approved by the estate planning and probate certification committee, with possible additional written or oral supplementation. Each applicant must submit five attorney references, excluding those from their own firm, who can verify their professional competence and substantial involvement in estate planning and probate law. The board may allow references from non-attorneys in certain cases and can conduct further inquiries for peer review as needed. Applicants must also show they have met continuing legal education requirements in estate planning and probate during the previous three years, with a minimum of ninety (90) hours mandated by the board. Eligible activities for education credit include attendance at relevant seminars, lecturing or serving on seminar committees, authoring articles or books, teaching approved courses, completing approved home study programs (limited to 50% of the required hours), and other methods sanctioned by the board. The board will establish specific standards and rules for these educational requirements, ensuring distinct allocation of hours for various activities. The applicant is required to pass a practical and comprehensive examination to demonstrate knowledge and proficiency in estate planning and probate law. Recertification must occur every five years, where the applicant must show continuous and substantial involvement in the field, quantified as over 40% each year since their last certification. Additionally, they must complete at least 125 hours of approved continuing legal education (CLE) since the last application. A short, objective examination covering significant legal changes is also mandatory; failure necessitates passing the new applicant examination. For recertification, the applicant must provide three references from currently board-certified estate planning and probate professionals who are familiar with their work, excluding those from their law firm. The board may seek additional references and can deny certification based on any information received. If concerns arise regarding an applicant's qualifications, passing the new applicant examination may be mandated as a condition for recertification. The importance of ongoing legal education is emphasized for all practicing attorneys. Each member of The Florida Bar must fulfill specific continuing legal education (CLE) requirements, effective January 1, 1988. Members, except those exempted under certain rules, are obligated to report their compliance with these requirements as outlined in the adopted policies. The board of governors may impose a reasonable fee related to each member's compliance report. The board of legal specialization and education is responsible for administering these CLE requirements and may delegate certain responsibilities to The Florida Bar staff, excluding the authority to grant waivers or exemptions. The board will also provide recommendations regarding approved education courses, alternative education methods, credit hours, educational standards, and any modifications to the CLE requirements. Additionally, The Florida Bar is tasked with maintaining records of each member's compliance status. All members, barring specific exemptions, must complete a minimum of 30 credit hours of approved CLE activities every three years, including at least 2 hours dedicated to legal ethics. Exemptions include active military service, undue hardship, nonresident members not providing legal services related to Florida law, and full-time federal judiciary members prohibited from private practice. Justices of the Florida Supreme Court, judges of various courts, and designated judicial officers are subject to specific continuing legal education (CLE) requirements. Inactive members of The Florida Bar are also mentioned. Course approval for CLE credit follows set policies, with special provisions for courses from governmental agencies that may waive course approval fees and other requirements. Accreditation of hours is granted if a course is sponsored or approved by an organized state bar, exempting it from fee payment. Full-time government employees receive credit for courses offered by governmental agencies, with applications for credit approval permitted before or after attendance, at no cost. The board of legal specialization and education can approve basic skills training programs for CLE credit if taken within eight months before admission to The Florida Bar. Members must report compliance with CLE requirements, except those exempted, using a prescribed form by the board. Reports are due by the end of the member's reporting period. Noncompliance results in delinquency, requiring a specific plan to complete the necessary hours within 120 days. If the plan is not approved within 30 days, it is considered approved. Members must report completion of this plan within 15 days post-expiration. Failure to comply results in sanctions, and the board will notify members of any noncompliance. The notice must detail the nature of the noncompliance and inform the member that failure to submit a specific plan or request a hearing will result in their name being filed with the Supreme Court of Florida. The Florida Bar will recommend treating members on this list similarly to those delinquent in dues. The timeframes for completing the specific plan remain unchanged. If a hearing is requested, it will follow section 6.11 of the adopted policies, allowing for legal representation and sworn witnesses. An electronic record or transcript of the hearing will be made at the member's expense if requested. If compliance is achieved, the matter will be dismissed and recorded as such. If noncompliance is confirmed after the hearing, and reasonable cause is found, the member has 15 days to submit a specific plan for correction, requiring compliance within 120 days. The board must accept or reject the plan within 30 days. Evidence of compliance must be reported within 15 days after the plan's deadline. Failure to meet these requirements will lead the board to act as if no reasonable cause existed. If no reasonable cause is found, the board will file a record of its findings with the Supreme Court, and the member will be notified. Upon filing a notice of noncompliance, the Supreme Court may issue an appropriate order, potentially including suspension. Members may appeal decisions to the board of governors, and then to the Supreme Court, following the established policies. Members must exhaust available remedies sequentially before moving to the next. Appeals will pause the compliance timeframe for continuing legal education requirements. Members suspended for noncompliance may be reinstated upon correction of the issue and payment of a reinstatement fee. Files, records, and proceedings related to a member's failure to meet continuing legal education requirements are confidential unless the Supreme Court of Florida directs otherwise. Disclosure is permitted only for the board's duties, at the member's written request, or in legal proceedings. The Florida Bar may inform that a member has been suspended for non-compliance with these requirements. The board may also refer instances of misrepresentation regarding compliance for disciplinary action as outlined in chapters 3 and 4 of the Rules Regulating The Florida Bar. The Clients’ Security Fund Rules and the rules for group and prepaid legal services can be amended according to rule 2-40 1-12.1. The authority for these rules is established under Article V, Section 2(a) of the Florida Constitution.