Board reviews procedural rules amendments.

A proposed rule requiring trial criminal defense counsel to remain on the case until appellate counsel is found when an appeal is filed by the state has failed to get the support of the Bar Board of Governors.

But the board, meeting October 19 in Boca Raton, approved other procedural rule amendments from the Appellate Court Rules Committee, the Traffic Court Rules Committee, the Juvenile Court Rules Committee, and emergency proposals from the Family Law Rules Committee.

The appellate, traffic, and juvenile rules committees were presenting their two-year cycle rule amendments. The Family Law Rules Committee was presenting emergency amendments.

Except for the one recommendation from the appellate panel, the board unanimously endorsed all of the proposed rule amendments, which will now be submitted to the Supreme Court.

The contested rule was a change to Rule 9.140(d) (formerly Rule 9.140(b)(5)) of the appellate rules.

Fifth District Court of Appeal Judge and committee Chair Winifred Sharp said there's a problem in cases where private defense counsel wins at trial or gets a short sentence, and the state appeals. In some cases, the trial attorney has withdrawn, and the defendant is unrepresented in the appeal which the state wins, resulting in a new trial or longer sentence, she added. Many of those appellate opinions have noted the defendant did not respond to the appeal.

The rule change, Sharp said, makes the requirements for withdrawing in those cases identical to those when the appeal is filed by the defense.

Board members questioned whether that placed too much of a burden on the trial lawyer and recommended against that rule by a 14-to-16 vote. Bar President Terry Russell said the Bar will draft comments to be included when the committee submits the rule to the court.

Sharp said most of the amendments to the appellate rules were technical or editorial in nature, but some, such as one affecting per curiam affirmed opinions, are substantive. Those include:

* Changing Rule 9.120(f) to require that the appendix of an appeal to the Supreme Court include a conformed copy of the district court of appeal's decision.

* Adding the phrase "any necessary" to Rule 9.180(c)(3) to conform with a state law, which became effective October 1. The law eliminates the requirement that a judge of compensation claims approves the entirety of a settlement if the worker is represented by counsel.

* Changing Rule 9.330(a) to allow a party to ask for a written opinion after receiving a per curiam affirmed decision from a DCA if the party certifies the written opinion would provide a legitimate basis for Supreme Court review.

* Further amending Rule 9.330(a) to change an amendment approved earlier this year. The phrase "the order is a per curiam affirmance without opinion" would be changed to "a decision is entered."

* Amending rule 9.330(d) to clarify the Supreme Court does not accept motions for rehearing or clarification when it grants or denies requests for discretionary review.

* Amending Rule 9.370 to add a cover identification requirement and lower the time frame to five days, or 10 days if service was by mail.

* Amending Rule 9.440(a) and (b) and adding a committee note to conform the rule to Rules of Judicial Administration 2.060 and 2.061 regarding foreign attorneys and withdrawing attorneys.

* Amending Rule 9.800(n) to include the ALWD Citation Manual as an alternative to the Bluebook for citations that do not appear in the rule.

Family Law Rules

Family Law Rules Committee Vice Chair Judy Hodor said the emergency rule change was being sought to combat the growing problem of identity theft. The change would remove parties' Social Security numbers from all forms and documents, except one form that would be kept separate and confidential from other case documents. Also being kept separately are such things as bank account and credit card numbers, she said.

"These are public records as they are now, and they are being used for fraudulent purposes," Hodor said.

Juvenile Court Rules Committee Chair Joel Silvershein said that committee had only minor changes. Those included adding form 8.929 to assist juvenile practitioners and amending Form 8.967 authorizing medical examination and treatment for children in the state's custody pursuant to F.S. 743.0456(1)(b). The committee also recommended that Forms 8.959 and 8.979 be made available in Spanish and Creole.

Michael Udell, vice chair of the Traffic Court Rules Committee, said that panel had three substantive changes, plus one editorial change. The substantive changes are:

* Amending Rule 6.630(g) to require a certain number of hours of training on specific subjects for traffic hearing officers.

* Creating Rule 6.630(h) to provide for continuing legal education for traffic hearing officers.

* Amending Rule 6.630(j) (formerly subsection (i)) to provide that traffic hearing officers are subject to the Code of Judicial Conduct. The effect will be that officers can represent clients in all counties except those where they preside.

Under rules procedures, the board cannot amend the actions of the procedural rules committees, but gives to the Supreme Court its endorsement, opposition, or comments on the proposals.