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Board of Governors to meet April 3 in Coral Gables.

The Bar Board of Governors will review an ethics opinion on the duties of criminal defense attorneys when they learn their clients are using a false name and get a report on using foreign sources to provide paralegal work at its April 3 meeting in Coral Gables.

Also the board may receive a report on the attorney-client relationship between elected officials and their lawyers, and will get the Bar's 2009-10 budget.

The false name issue comes with a proposed rewrite of Ethics Opinion 90-6 by the Professional Ethics Committee. The opinion, which applies to criminal cases, says if a lawyer learns during the initial consultation that the prospective client is proceeding under a false name, the attorney must try to convince the client to correct that error and if the effort fails, the lawyer must decline the representation. If the lawyer has undertaken the representation but not formally appeared, he or she must attempt to persuade the client to reveal the correct name. If the client refuses, the lawyer must inform the proper authority, which could be the court or prosecutors, of the misrepresentation, and then withdraw from the representation.

If the lawyer has already made a formal appearance, he or she must try to persuade the client to reveal the client's proper identity. Should the client refuse, the lawyer must divulge to the court that the client is proceeding under a false name. Such action may create a conflict where the lawyer then seeks to withdraw from the representation; however, the lawyer must continue the representation if ordered by the court, according to the opinion.

The opinion does not state that attorneys are required to provide their clients' correct names.

Some criminal defense lawyers have objected to the change, preferring instead the original opinion which said lawyers could not actively participate in the deception, but were not required to reveal it.

The Board Review Committee on Professional Ethics has studied the proposed revisions and is considering some modified language.

The Professional Ethics Committee also has prepared, at the board's request, a report on the growing practice of lawyers and law firms sending paralegal and other work to foreign countries. That report is scheduled to be presented to the board at the April meeting.

The report labels sending such work to another country as "offshoring" as opposed to "outsourcing" to a domestic source. It also warned that lawyers have special duties to understand the cultural, legal, and technological implications of sending work to a foreign country and those lawyers will remain ultimately responsible if client information is mishandled.

The Board Review Committee on Professional Ethics will review the report and present it to the board. If approved, the report will be posted on the Bar's Web site to provide guidance for Bar members.

In addition to the report, the PEC has formed a subcommittee to work on a proposed Bar rule to guide lawyers who offshore legal work.

The Attorney-Client Privilege Task Force is making a recommendation to allow greater protection to attorney-client communications and attorney work product for all public agencies. Members of the task force have agreed that current open government laws make it hard for government attorneys to advise their clients, diminish the attorney-client privilege, and give an advantage to those suing those agencies.

But open government advocates have criticized the proposals of an evasion of sunshine laws and liable for abuse.

The task force recommendations will be submitted to the Legislation Committee, along with a request that the Bar take a position supporting the task force, and reported to the board.

As this News went to press, the 2009-10 Bar budget, which begins July 1, was still being finished. But preliminary figures call for a budget with revenues of around $38.1 million and expenditures of $38.4 million.

This will be the ninth year in a row without a dues increase and Budget Committee members do not see another membership fee hike in the near term.

The budget eliminates some vacant positions at the Bar, and assumes a small income from Bar investments. Losses on investments are projected to cause the Bar's 2008-09 budget, which originally was projected to be balanced, to have a deficit.

The Program Evaluation Committee is expected to report on a judicial candidate self-disclosure statement proposed by the Judicial Administration and Evaluation Committee. The JAEC has proposed sending the form to all trial court candidates as way of getting information about them, their experience, and background to provide to voters. The form includes an essay-type question on why they want to be a judge.

Additionally, the board will consider proposed Bar rule amendments allowing for disciplinary revocation. This proposal would allow lawyers facing disciplinary proceedings to file a petition for revocation of their licenses without admitting to the facts or allegations underlying the Bar complaint.

These amendments provide that such disciplinary revocation would be the equivalent of disbarment, would not be for at least five years, and could be rejected by the Board of Governors in favor of pursuing a formal disbarment. Another proposed change to the current disbarment on consent rule would allow a lawyer to agree to disbarment on consent without specifically admitting to the Bar's charges.

The board also will get an advertising appeal which revisits advertising Rule 4-7.5(b)(2)(B).

The rule requires that nonlawyers appearing in electronic ads must be identified as nonlawyers. That rule caused a problem at public radio stations which, under federal rules, must use announcers to read short blurbs for program sponsors. Those short spots have been determined to fall under the advertising rules.

The difficulty for sponsoring lawyers is the spots are so short that the nonlawyer disclaimer would take up much or most of the allotted time, and FTC regulations prohibit the lawyer from being the speaker in the ad.

The Standing Committee on Advertising recently upheld the rule, but is recommending that the board suspend enforcement because an amendment that would address the problem is pending at the Supreme Court.

The Program Evaluation Committee may report on its study of the Bar's Midyear Meeting, Annual Convention, and General Meeting of Sections and Committees. The committee is looking at reducing the number of Bar-wide meetings from three to two a year.
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Title Annotation:The Florida Bar
Publication:Florida Bar News
Geographic Code:1U5FL
Date:Mar 15, 2009
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