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Proposed board actions.

Pursuant to Standing Board Policy 1.60, the Board of Governors of The Florida Bar hereby publishes this notice of intent to consider or take final action at its December 14 meeting in Amelia Island on the following items. These matters are additionally governed by Rule 1-12.1, Rules Regulating The Florida Bar, where applicable. Most amendments to the Rules Regulating The Florida Bar that are finally acted upon by the board must still be formally presented to the Supreme Court, with further notice and opportunity to be heard, before they are officially approved and become effective. To receive a full copy of the text of any of these proposed amendments call (850) 561-5751. Reference any requested proposal by its title or item number and date of this publication.


Chapter 1 General

Subchapter 1-3 Membership

1. Rule 1-3.10 Appearances by Non-Florida Lawyers in a Florida Court

Summary: Within subdivision (b), allows a Florida resident who has a pending application for admission to The Florida Bar and who has not previously been denied admission to The Florida Bar to move to appear pro hac vice. Subchapter 1-4 Board of Governors

2. Rule 1-4.3 Committees

Summary: Adds the chair of the disciplinary review committee to the executive committee. Chapter 3 Rules of Discipline

Subchapter 3-3 Jurisdiction to Enforce Rules

3. Rule 3-3.2 Board of Governors of The Florida Bar Summary: Within subdivision (b) re authority to file complaints based on felony charges, adds that a grievance committee chair's decision to not file a complaint may be reviewed by the full committee, which may affirm or reverse the chair's decision; also adds a decision of the Florida Supreme Court imposing judicial discipline in an action brought by the Judicial Qualifications Commission to the list of events that authorizes the filing of a formal lawyer disciplinary complaint; includes other non-substantive edits, adds appropriate subdivision titles and numbers consistent with controlling editorial protocols, and revises other affected subdivision entries as necessary.

Subchapter 3-7 Procedures

4. Rule 3-7.2 Procedures Upon Criminal or Professional Misconduct; Discipline Upon Determination or Judgment of Guilt of Criminal Misconduct

Summary: Adds new subdivision (m) re discipline upon removal from judicial office, to require notice to the bar of any order of the Supreme Court removing a member from judicial office; also authorizes the bar, upon receipt of such order, to file a formal complaint with the court and to seek appropriate discipline; further provides that the findings of fact by the court in any proceedings resulting in the removal of a member from judicial office shall be conclusive proof of such facts in bar disciplinary proceedings.

5. Rule 3-7.7(c)(6) Procedures Before Supreme Court of Florida; Procedure for Review Summary: Within subdivision (c)(6), adds new provisions specifying that, where appropriate, the judgment from the Supreme Court shall indicate the party to whom costs are awarded, the persons to whom restitution is ordered, or the persons to whom a fee is ordered to be forfeited; also adds subdivision titles to address such new matters.

Chapter 4 Rules of Professional Conduct

Subchapter 4-3 Advocate

6. Rule 4-3.3 Candor Toward the Tribunal

Summary: Amends commentary from rule 4-3.3 addressing perjury by a criminal defendant in accordance with other changes clearly indicating there is no difference between the obligations of a civil lawyer and a criminal defense lawyer. Also amends commentary on remedial measures, clearly indicating that withdrawal alone will likely never be adequate remedial measures when there has been a misrepresentation to the court.

Subchapter 4-7 Information About Legal Services

7. Rule 4-7.2 Communications Concerning A Lawyer's Services

Summary: Amends rule 4-7.2 to remove language regarding exemption from filing as redundant and confusing, adds a reference to a rule subdivision to clarify which subdivision is meant, moves prohibition on use of a celebrity and on the use of prohibited sounds from the rule on television and radio to the general rule, expanding the prohibition to cover all media, and changes the prohibition on any background sound to a prohibition on sounds that are deceptive, misleading, manipulative, or likely to confuse in conformity with the rule on verbal and visual portrayals.

8. Rule 4-7.4 Direct Contact With Prospective Clients

Summary: Corrects grammatical issue by changing "in" to "on."

9. Rule 4-7.5 Advertisements in the Electronic Media Other Than Computer-Accessed Communications

Summary: Moves prohibition on use of a celebrity and on the use of prohibited sounds from the rule on television and radio to the general rule, expanding the prohibition to cover all media.

10. Rule 4-7.7 Evaluation of Advertisements

Summary: Amends rule to conform to style requirements of Supreme Court of Florida in subdivisions (a)(1) and (2) and (a)(2)(B) , adds requirement that a filing includes a printed copy of on-screen text in subdivisions (a)(1)(B) and (b)(3), adds 5 days mailing time to 15 day deadline for review of television and radio advertisements in subdivision (a)(1)(C), clarifies that advertising opinions are binding on The Florida Bar in a grievance proceeding in subdivisions (a)(1)(F) and (a)(2)(F) and the comment, adds to comment that Florida Bar members should obtain notice of compliance for television and radio advertisements before airing them.

Chapter 5 Rules Regulating Trust Accounts

Subchapter 5-1 Generally

11. Rule 5-1.2 Trust Accounting Records and Procedures

Summary: Within subdivision (b) re minimum trust account records, deletes the requirement that original canceled checks be maintained, and substitutes a legible copy requirement provided that such copies include all data contained in the original.

Chapter 6 Legal Specialization and Education Programs

Subchapter 6-3 Florida Certification Plan

12. Rule 6-3.5 Standards for Certification

Summary: Within subdivision (c)(4), adds new language that would require certification exams to include ethics and professional responsibility components.

Subchapter 6-13 Standards for Certification of a Board Certified Appellate Lawyer

13. Rule 6-13.4 Recertification

Summary: Within subdivision (b), adds language to allow the appellate practice certification committee to waive the requirement for 15 appellate actions, for good cause, for applicants who have been certified in appellate practice for 14 years or more; and creates new subdivision (g)--"Good Cause"--to specify various considerations for determining good cause under subdivisions (b) & (c) when the minimum requirements for appellate actions or oral arguments have not been met.

14. Subchapter 6-27 Standards for Certification of a Board Certified Education Lawyer

Summary: New subchapter, setting forth standards for an additional certification area in education law.

15. Subchapter 6-28 Standards for Certification of a Board Certified Adoption Lawyer

Summary: New subchapter, setting forth standards for an additional certification area in adoption law.

Chapter 10 Rules Governing the Investigation and Prosecution of the Unlicensed Practice of Law

Subchapter 10-6 Procedures for Investigation

16. Rule 10-6.3 Recommendations and Disposition of Complaints

Summary: Changes order of sentences for clarity; clarifies role of the board of governors. Subchapter 10-7 Proceedings Before a Referee

17. Rule 10-7.1 Proceedings for Injunctive Relief

Two Proposals Under Consideration

Option 1

Summary: Within subdivision (d)(1), deletes provisions re imposition of a civil penalty not to exceed $1000 per incident of UPL; adds within (d)(2), as an allowable cost, a litigation expense in an amount up to $1000 per incident, to encompass litigation costs not otherwise specified; revises other affected subdivision entries as necessary; within (d)(3) adds a provision to allow the referee to consider testimony as well as documentary evidence when reviewing a restitution request; within subdivision (e)(2), deletes provision that court orders of restitution contain a requirement that the respondent provide to the bar monthly reports of payment to the complainant, instead adding a new requirement that such orders specify that payment be sent to the bar, payable to the complainant, and forwarded by the bar to the complainant; further specifies that if the complainant cannot be located such restitution shall be returned to the respondent by the bar.

Option 2

Summary: Within subdivision (c)(2), adds new requirement that, if civil penalties are requested, the referee's order following a case management conference shall include notice to respondent re respondent's burden to show an inability to pay such penalty; within subdivision (d)(3), deletes provision that states restitution shall be paid before costs, and adds provision to allow the referee to consider testimony as well as documentary evidence when reviewing a restitution request; creates new (d)(4)--civil penalty--requiring the referee's determination and report of the respondent's ability or inability to pay such penalty in unstipulated cases, confirming the respondent's burden to show inability via sworn affidavit, and specifying the application of statutory indigency criteria in the process; revises other affected subdivision entries as necessary; adds new (d)(6)--timing of payment--specifying that the order of payment in such cases is restitution, then costs, and then civil penalty; and within subdivision (e)(2) re Supreme Court review, adds new provisions specifying the Court's determination of whether civil penalties shall be awarded, that orders imposing restitution or civil penalties require their transmittal to the bar--with restitution payable to the complainant and civil penalties payable to the Court--for forwarding by the bar to those respective payees; further specifies that if the complainant cannot be located such restitution shall be returned to the respondent by the bar.

18. Rule 10-7.3 Enforcement of Award of Civil Penalty

Summary: New rule, authorizing The Florida Bar to conduct discovery in aid of execution if a respondent fails to timely pay a civil penalty; allows dissolution of the penalty by the court on motion of the Bar stating that the respondent is unable to pay; if discovery shows otherwise, allows the penalty to stand and authorizes the Bar to file a petition for indirect criminal contempt.


1000 Series Program Evaluation and Strategic Planning Policy and Procedure

19. SBP 10.50 Strategic Planning Policy

Summary: Within subdivision (d), adds PEC chair, Council of Sections chair, and PEC chair-elect to the strategic planning committee.

1500 Series Lawyer Regulation Policies

20. SBP 15.77 Access to Designated Reviewer

Summary: New policy, to formalize the manner in which access to a designated reviewer may be obtained and to clarify the role of bar counsel in the event of such contact.


BLSE Policies--200 Series--Florida Certification Plan

21. BLSE Policy 2.02 Areas of Certification

Summary: Within subdivision (b), adds intellectual property law and state and federal government and administrative practice to the approved areas of certification; adds new subdivision (c), to ensure bar sections, divisions, and related substantive committees are afforded the opportunity to offer comment on proposed amendments to certification standards before referral to the BLSE, Program Evaluation Committee, and the board of governors.

22. BLSE 2.04 Certification Fees

Summary: Within subdivision (c), increases the annual fee for certification, from $125 to $150.

23. BLSE 2.05 Applications for Certification

Summary: Within subdivision (e), assigns intellectual property law and state and federal government and administrative practice to the second application filing cycle.

24. BLSE 2.08 Peer Review

Summary: Within subdivision (3), codifies the practice of excluding members of the Supreme Court from the solicitation of peer review for certification applicants.

25. BLSE 2.10 Approved Continuing Legal Education

Summary: Within new subdivision (b), codifies the practice of awarding CLE credit for grade review panel service, up to 5 hours of credit; revises other affected subdivision entries as necessary.

26. BLSE 2.11 Exam Preparation and/or Review Courses

Summary: Within subdivision (a), revises language to permit certification committees to release one or more sample questions and answers from past certification exams; also eliminates restriction on providing such samples only to review course "attendees"; within subdivision (c), provides BLSE authority, along with the certification committee, to determine where and when an exam may be administered.

27. BLSE Policy 2.12 Grading, Review, and Petition Process

Summary: Within subdivision (b), reduces opportunity to review exam to one expanded session and deletes current provisions re a separate notice of intent to petition for grade review and the provision of a record three days after the more limited "initial" exam review now allowed; also amends subdivision (b) to afford BLSE the right to determine the specific location and date of such exam review; further adds a new 30-day deadline to file a grade review petition after any exam review; revises subdivision title accordingly and conforms other text as appropriate.

28. BLSE 2.13 Applicant Review Process for Certification or Recertification

Summary: Within subdivision (e), modifies language to allow certification committees discretion in determining if supplemental documentation submitted by an applicant warrants or makes appropriate further investigation of the applicant's qualifications for certification or recertification.

29. BLSE 2.16 Revocation

Summary: Complete revision of current policy; references chapter 6 of the Rules Regulating The Florida Bar as authorization for BLSE revocation of certification; outlines instances in which a member's certification can be automatically revoked; specifies instances in which BLSE may use discretion in considering certification revocation; sets forth procedures for discretionary revocation; and clarifies BLSE's right to suspend certification of members currently under investigation for offenses related to professional integrity.

BLSE Policies--500 Series--Course Approval

30. BLSE 5.01 Course Approval Administration

Summary: Within subdivision (k), adds CDs and DVDs as credit-eligible media for CLE courses.

31. BLSE 5.04 Course and Credit Approval

Summary: Deletes subdivision (b) and related language elsewhere re maximum credit hours per CLE cycle in law office management and economics, computer training, ethics, substance abuse, self improvement, stress management, mental illness, and other non-law courses; revises other affected subdivision entries as necessary; and adds new language that further defines ethics and substance abuse for application of the CLE ethics requirement.

32. BLSE Policy 5.06 Complimentary Audiotapes

Summary: Changes policy number and revises title, to read "5.07--Complimentary CLE" and adds new language that would require The Florida Bar to provide 10 credit hours of CLE materials to each county law library per year, as well as to out-of-state bar associations that meet required criteria.

33. BLSE Policy 5.06 Accreditation Revocation

Summary: Proposed new policy, to provide the BLSE authority to rescind CLE credit if the course content or speaker credentials do not reflect the accreditation standards set forth by BLSE.


34. Elder Law Section

Summary: Within Article I (Name and Purpose), streamlines purpose language, re-styled as "mission", and revises subdivision titles accordingly; within Article II (Membership), deletes provision limiting affiliate members to one-third of active membership, to allow limitations as set by executive committee; also revises limitations on at large members, from "1 or 2" to "no more than 5"; further, re affiliate members who are legal assistants, deletes provisions re their adherence to NALA code of ethics; within Article III (Officers), revises elections provisions, to allow member nominations at the called "executive council" rather than "annual" meeting, and election at the "April executive council" rather than "annual" meeting; also deletes provisions specifying the chair-elect serves as chair of the legislative committee, that the secretary is responsible for records of all section committees, that the vice chair of the administrative division becomes chair elect at the conclusion of their vice chair duties and upon election, and that the vice chair of the substantive division becomes vice chair of the admin division at the conclusion of their duties as substantive division vice chair and upon election; also re extraordinary vacancies in the offices of chair and chair elect, changes the election from "the next annual meeting of the section" to the "following April meeting of the executive council"; within Article V (Committees) and throughout, changes "executive board" to "executive committee"; also revises nominating committee procedures, to set a deadline of March 15 for the slate of officer nominees and to relax current limitations on members of the committee who are considered for nomination, excusing them from committee deliberations and votes; creates new committees and revises various other committee names and duties within the administrative and substantive divisions; also deletes current aspirational provision that a member of the executive committee serve as an ex officio member of each standing committee; clarifies that committee reports are due 2 weeks prior to executive council as well as section meetings; within Article VI (Meetings) increases from 2 to 3 the minimum number of regular executive council meetings each year and clarifies that council business may be conducted by various remote means; reduces the advance notice requirements for executive committee meetings to 5 instead of 7 days, to now be sent to each committee member rather than every officer; includes other non-substantive edits.
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Title Annotation:Notices
Publication:Florida Bar News
Date:Nov 15, 2007
Previous Article:11th JNC now accepting Dade judge applications.
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