Board steers clear of personal representative dispute.The Bar Board of Governors will not intervene intervene v. to obtain the court's permission to enter into a lawsuit which has already started between other parties and to file a complaint stating the basis for a claim in the existing lawsuit. in a legislative dispute between the Real Property, Probate probate (prō`bāt), in law, the certification by a court that a will is valid. Probate, which is governed by various statutes in the several states of the United States, is required before the will can take effect. and Trust Law Section and the Out of State Practitioners Division because the matter is outside the areas where the Bar is allowed to lobby. That action is consistent with the legal opinion of retained Bar Counsel Barry Barry, Welsh Barri, town (1991 pop. 45,053) and port, Vale of Glamorgan, S Wales, on the Bristol Channel. Once a major coal-exporting port, its more diversified export products include cement, flour, and steel products. Richard, who was asked what authority the board had in the dispute between the section and division over a state law that prohibits out-of-state lawyers, among others, from being personal representatives in Florida estates. Richard opined that the matter is outside the areas where the Bar is allowed to lobby. He also wrote that under existing Bar policies, the board cannot prevent either the section or division, which holds opposing views on the issue, from advocating their positions at the legislature. Legislation Committee Chair Jesse Jesse (jĕs`ē), in the Bible, the descendant of Rahab, the grandson of Boaz and Ruth, and the father of David. Referring to the restoration of the Davidic monarchy, the Book of Isaiah speaks of a shoot coming from the "stump of Jesse. Diner diner, restaurant resembling the railroad dining car that is its source. In the mid-19th cent., the first dining cars that appeared on trains were nothing more than an empty car with a fastened-down table. George M. reported to the board at its October 5 meeting that the committee voted unanimously not to act on a request from the Out of State Practitioners Division to adopt its legislative position as a Bar position. The division wants to amend state law to allow out-of-state Bar members to be personal representatives. RPPTL RPPTL Real Property Probate Trust Law has had a long-standing position opposing that or any other expansion of those who can act as personal representatives, arguing it could raise a constitutional challenge to the law. The law basically requires that personal representatives be Florida residents, unless they are also related to the decedent An individual who has died. The term literally means "one who is dying," but it is commonly used in the law to denote one who has died, particularly someone who has recently passed away. . If the board had agreed with the division, it would have effectively nullified nul·li·fy tr.v. nul·li·fied, nul·li·fy·ing, nul·li·fies 1. To make null; invalidate. 2. To counteract the force or effectiveness of. the section's position. [ILLUSTRATION OMITTED] "The opinion [from Richard] was the Bar should not take a position. The committee discussed that at length," Diner reported to the board. "The committee unanimously voted after careful consideration that the Bar take no action with regard to the Out of State Practitioners Division's request." That still leaves, he added, both the section and division free to advocate their opposing positions. In his opinion letter to the Bar, Richard noted he was tasked with answering two questions: Could the Bar take a position on the issue? Could the Bar prohibit pro·hib·it tr.v. pro·hib·it·ed, pro·hib·it·ing, pro·hib·its 1. To forbid by authority: Smoking is prohibited in most theaters. See Synonyms at forbid. 2. a section or division from taking a position on the issue? The first question, he said, is governed gov·ern v. gov·erned, gov·ern·ing, gov·erns v.tr. 1. To make and administer the public policy and affairs of; exercise sovereign authority in. 2. by parameters set by the Florida Supreme Court in The Florida Bar The Florida Bar is the mandatory state bar association for the state of Florida. It is the third largest such bar association in the United States. Its duties include the regulation and discipline of attorneys. Re Schwarz, 552 So. 2d 1094 (1989). That discussion set out five specific areas where the Bar can lobby. The Bar also can lobby on other areas if they meet a three-part test. The personal representative issue does not fall into the five delineated de·lin·e·ate tr.v. de·lin·e·at·ed, de·lin·e·at·ing, de·lin·e·ates 1. To draw or trace the outline of; sketch out. 2. To represent pictorially; depict. 3. areas. As for the three-part test, Richard said the issue does meet one criterion in that the issue affects the rights of those likely to come into contact with the legal system but fails to meet the other two parts. Those are that the issue be recognized as one of great public interest and "that lawyers are especially suited by their training and experience to evaluate and explain the issue." "The legislature has simply made the decision that all personal representatives other than close family members should be state residents," Richard wrote. "Whether or not that decision makes good sense or good policy, I do not see how a lawyer's training and experience make him or her especially suited to evaluate and explain the issue." As for prohibiting a section from lobbying on a position, Richard said that is governed by Standing Board Policy 9.50, enacted to ensure compliance with the Schwarz ruling. That ruling allows sections to lobby positions that (1) fall within the sections' subject matter; (2) are outside The Florida Bar's scope or which do not conflict with a Bar-wide position; and (3) do not cause deep philosophical or emotional divisions among a substantial segment of Bar members. The policy also provides that the board cannot deny a section's lobbying request unless the proposed legislative position violates one of those three criteria. "I am assuming that the nonresident non·res·i·dent adj. 1. Not living in a particular place: nonresident students who commute to classes. 2. representative issue meets criteria (1) and (3) and I have concluded above that it meets criterion (2)," Richard wrote. "Consequently ... the policy would place it outside the scope of the board's authority to prohibit a section from taking a legislative position." The committee's action ended what has been a contentious issue between the division and section for the past year. Out-of-state board members objected when RPPTL asked last fall to renew its long-standing opposition to changing the state law on personal representatives. They dropped that opposition when section officials agreed to meet with the division to discuss the division's reservations. When those talks proved unsatisfactory to division officials, the board approved allowing the division to support a change in state law to permit out-of-state Bar members to act as personal representatives in Florida estates. In addition, former out-of-state board member Gary Leppla asked the board to revoke To annul or make void by recalling or taking back; to cancel, rescind, repeal, or reverse. revoke v. to annul or cancel an act, particularly a statement, document, or promise, as if it no longer existed. its approval of RPPTL's position on the issue, and the division asked that the board adopt the division's position as a Bar-wide legislative policy. The board in June rejected Leppla's request (which Richard now says would have exceeded the board's authority had it been approved) while the Legislation Committee received and began studying the division's proposal. By Gary Blankenship Senior Editor |
|
||||||||||||||
Printer friendly
Cite/link
Email
Feedback
Reader Opinion