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Proposed board actions March 15, 2005 Regular News 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 April 8 meeting 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. RULES REGULATING THE FLORIDA BAR Chapter 3 Rules of Discipline Subdivision 3-5 Types of Discipline 1. Rule 3-5.1 Generally Summary: Within subdivision (b)(3), adds language to clarify that a respondent is responsible for the $1,250 administrative fee if guilty of minor misconduct. 2. Rule 3-5.2 Emergency Suspension and Probation Summary: Revises subdivision (a) and creates new subdivision (b), to allow for separate criteria for petitions for emergency suspension or for interim probation; amends rule title and subtitles accordingly and reformats remainder of existing rule as necessary to accommodate these proposed changes; within former subdivision (d) – new (e) – deletes requirement that bar must proceed to trial within 60 days of any emergency order. Subdivision 3-7 Procedures 3. Rule 3-7.5 Procedures Before the Board of Governors ­Summary: Within subdivision (a), clarifies that a request by a designated reviewer for grievance committee reconsideration or referral to the disciplinary review committee shall be submitted to bar counsel; defines “in writing” for purposes of this subdivision; clarifies how bar counsel processes requests for reconsideration, to include notice to respondent and complainant; confirms that procedures in rule 3-7.4 apply to reconsiderations, and that the bar – as a party in disciplinary matters – has no authority to adjudicate rights; other edits attempt to clarify current verbiage or reformat remainder of existing rule to accommodate these proposed changes. 4. Rule 3-7.16 Limitation on Time to Bring Complaint Summary: Within subdivision (a), adds provision stating that a reopened disciplinary investigation shall not be time barred by this rule if the investigation is reopened within 1 year of the date on which the matter was closed, except that reopened investigations based on deferrals shall not be barred if reopened within 1 year of the conclusion of the proceeding on which the deferral is based; amends subdivision title to additionally reference reopened cases; amends subdivision (b), to extend its exception from time limitations to the reopening of any matter alleging theft or conviction of a felony criminal offense; amends subdivision (c), to extend its tolling provisions to the reopening of any matter where fraud, concealment or misrepresentation is shown to have prevented discovery of the matter. Chapter 4 Rules of Professional Conduct Subchapter 4-1 Client-Lawyer Relationship 5. Rule 4-1.5 Fees for Legal Services Summary: Creates new subdivision (i) – “Arbitration Clauses” – that would add language permitting lawyers to contract with clients to resolve any fee dispute that may arise, through mandatory arbitration; prohibits such arrangements unless the lawyer first advises the affected person in writing of the opportunities of independent representation; sets forth required language for any such attorney-client agreement; proposed as companion to suggested amendments in rule 4-1.8(h). 6. Rule 4-1.8 Conflict of Interest: Prohibited and Other Transactions Summary: Within subdivision (h), adds new language that would permit lawyers to contract with clients to resolve any fee dispute that may arise, through mandatory arbitration; prohibits such arrangements unless the lawyer first advises the affected person in writing of the opportunities of independent representation; sets forth required language for any such attorney-client agreement; proposed as companion to suggested amendments creating new rule 4-1.5(i). Chapter 6 Legal Specialization and Education Programs Subchapter 6-1 Generally 7. Rule 6-1.2 Public Notice Summary: Updates explanation of board certification, for public notice in telephone directory Yellow Pages. Subdivision 6-4 Standards for Certification of a Board Certified Civil Trial Lawyer 8. Rule 6-4.1 Generally Summary: Incorporates professionalism reference in preamble as to purpose of board certification. 9. Rule 6-4.3 Minimum Standards Summary: Substantial editorial rewrite of rule, with some substantive edits as noted; within subdivision (a), adds competence to substantial involvement criteria; in subdivision (a)(1), increases the active participation practice time from 30 to 50 percent; in subdivision (a)(2), specifies that each of the 15 minimum cases must involve substantial legal or factual issues; identifies matters unacceptable for the 15-case requirement; defines a “day” as at least 6 hours for purposes of this rule; and includes an allowance of 3 substitutions, including evidentiary hearings or preliminary injunctions lasting at least 1 day and involving substantial legal or factual issues – provided that matters submitted as substitutions are adversarial and binding on the parties, with “binding” meaning that parties must honor the court’s decision unless overturned pursuant to law; in subdivision (a)(3)(b), specifies that peer review must be sufficient to confirm competence, ethics, and professionalism; otherwise clarifies throughout that “courts of general jurisdiction” mean circuit courts, federal district courts, or courts of similar jurisdiction in other states. 10. Rule 6-4.4 Recertification Summary: Substantial editorial rewrite of rule with some substantive edits as noted; within subdivision (a), adds competence to substantial involvement criteria and increases active participation practice time from 30 to 50 percent; within subdivision (b)(1), reduces from 3 to 2 the number of contested trials for recertification; specifies that at least 1 trial must be a jury trial and handled by the applicant as lead counsel; references unacceptable trial matters for recertification, from rule 6-4.3(a)(2); allows a creditable non-jury matter to be an evidentiary hearing or preliminary injunction, as defined in rule 6-4.3(a)(2); within subdivision (b)(2), also permits recertification with 1 jury trial as lead counsel lasting a minimum of 10 days, with each day defined as at least 6 hours, in lieu of 2 contested cases; within subdivision (c), would allow the jury trial/lead counsel requirement to be replaced by either teaching or attending an advanced trial advocacy seminar, eliminating the substitution for a non-jury trial; within subdivision (d), specifies that peer review must be sufficient to confirm competence, ethics. and professionalism; otherwise clarifies throughout that “courts of general jurisdiction” mean circuit courts, federal district courts, or courts of similar jurisdiction in other states; revises other subdivision entries as editorially necessary to accommodate these proposed changes. Chapter 10 Definitions Subchapter 10-3 Standing Committee 11. Rule 10-3.1 Generally Summary: Adds recusal provision as new subdivision (b), consistent with current practices and similar revisions proposed for rule 10-4.1 and circuit UPL committee members; adds new subdivision titles for existing text due to insertion of these proposed changes. 12. Rule 10-4.1 Generally Summary: Adds recusal provision as new subdivision (g), consistent with current practices and similar revisions proposed for rule 10-3.1 and standing UPL committee members. Chapter 14 Grievance Mediation and Fee Arbitration Subchapter 14-6 Nature and Enforcement of Award 13. Rule 14-6.1 Binding Nature (fee arbitration awards) Summary: Adds, as new subdivision (c), provisions to confirm that a member’s failure to timely pay a fee arbitration award without just cause shall result in the member being delinquent and unauthorized to practice law pursuant to rule 1-3.6; amends subchapter and rule title to reflect this new matter. Chapter 17 Authorized House Counsel Rule Subchapter 17-1 Purpose 14. Rule 17-1.3 Activities Summary: Within subdivision (b), clarifies that authorized house counsel must disclose their status as such in communications with individuals outside the corporation with which the authorized house counsel is registered and certified; provides examples of acceptable disclosure language. STANDING BOARD POLICIES 1500 Series – Lawyer Regulation Policies 15. Policy 15.10 Waiver of Disqualification as Attorney for Respondent Summary: Adds new subdivision (c), to revise current prohibitions and allow a member of a board member’s firm to represent a disciplinary respondent in limited instances – if the respondent is a member of the board member’s firm, if representation of the respondent predated the board member’s initial date of board service and refusal to allow continued representation would work a substantial hardship on the respondent, or if representation of the respondent predated the time when the board member and respondent’s counsel became members of the same firm and refusal to allow continued representation would work a substantial hardship on the respondent; adds new subdivision (h), to clarify that if a waiver is granted hereunder the affected board member shall be recused from additional Bar participation in the matter per policy 15.20 and further screened from the law firm’s files and representation; adds new subdivision (k), specifying procedures for review of and action on any request for waiver hereunder; other edits attempt to clarify current subdivision titles or reformat remainder of existing rule to accommodate these proposed changes. 16. Policy 15.20 Recusal of Board Members Summary: Consistent with proposed changes in policy 15.10, adds language within subdivision (a) to clarify that the president or presiding officer may order recusal of a board member in a disciplinary matter upon concurrence of a majority of the board; further clarifies that a recused member may not participate in any manner of discussions with any member or group of members of the board concerning the matter; adds new language stating that a recused member should not be present when the matter is being debated by the board. 17. Policy 15.90 Review and Approval of Disciplinary Cost Payment Plans Summary: Expands current policy to include procedure for review and approval of plans for member payment of diversion fees, restitution amounts, and fee arbitration awards. SECTION BYLAWS 18. Workers’ Compensation Section Bylaws Summary: Within Article III (Officers) increases the size of the executive council, from 27, to 30 members; revises executive council membership to require at least 15 claimants’ and 15 employers’/carriers’ attorneys; revises the annual terms of office for all officers, to commence on July 1 of each year rather than at the conclusion of the council’s annual meeting; within Article V (Nomination and Election of Officers and Executive Council) increases the number of council members separately nominated by both the council and membership, from 4 to 5; includes other non-substantive editorial or conforming changes throughout; within Article VI (Committees) revises names of “specialization” committee, to “board certification” committee, and “planning” committee to “long range planning” committee. read more