IN RE: AMENDMENTS TO THE RULES
REGULATING THE FLORIDA BAR
Supreme Court of Florida
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IN RE: AMENDMENTS TO THE RULES
REGULATING THE FLORIDA BAR.
[March 23, 2006]
PER CURIAM.
The Florida Bar petitions this Court to consider proposed amendments to Chapters 4 and 5 of the Rules Regulating the Florida Bar. We have jurisdiction. See Art. V, § 15, Fla. Const.
The Florida Bar's Special Committee to Review the American Bar Association Model Rules 2002 (Committee) studied changes in the American Bar Association Model Rules of Professional Conduct and compared them with the existing Rules Regulating the Florida Bar. The primary concerns during this process included protecting the public and maintaining the core values of the legal profession. After completing the study, the Committee developed proposals to amend the Florida rules. Thereafter, the Committee submitted the proposals to the Board of Governors of The Florida Bar for its recommendation. The Board approved the proposals, except for certain minimal revisions to rules 4-1.8 and 5-1.1 that were submitted after the proposals were published for comment in the October 15, 2004, edition of The Florida Bar News.[1]
In that publication, the Bar instructed interested parties to file any comments directly with the Court. Thereafter, the Bar filed its proposals. The Court received several comments and a response from The Florida Bar.
The Bar proposes amendments to the Preamble to Chapter 4 and rules 4-1.1 (Competence), 4-1.2 (Objectives and Scope of Representation), 4-1.3 (Diligence), 4-1.4 (Communication), 4-1.5 (Fees and Costs for Legal Services), 4-1.6 (Confidentiality of Information), 4-1.7 (Conflict of Interest; General Rule), 4-1.8 (Conflict of Interest; Prohibited and Other Transactions), 4-1.9 (Conflict of Interest; Former Client), 4-1.10 (Imputed Disqualification; General Rule), 4-1.11 (Successive Government and Private Employment), 4-1.12 (Former Judge or Arbitrator), 4-1.13 (Organization as Client), 4-1.16 (Declining or Terminating Representation), 4-1.17 (Sale of Law Practice), 4-2.1 (Adviser), 4-2.3 (Evaluation for Use by Third Persons), 4-3.1 (Meritorious Claims and Contentions), 4-3.2 (Expediting Litigation), 4-3.3 (Candor Toward the Tribunal), 4-3.6 (Trial Publicity), 4-3.7 (Lawyer as Witness), 4-3.8 (Special Responsibilities of a Prosecutor), 4-3.9 (Advocate in Nonadjudicative Proceedings), 4-4.1 (Truthfulness in Statements to Others), 4-4.2 (Communication with Person Represented by Counsel), 4-4.3 (Dealing with Unrepresented Persons), 4-4.4 (Respect for Rights of Third Persons), 4-5.1 (Responsibilities of a Partner or Supervisory Lawyer), 4-5.3 (Responsibilities Regarding Nonlawyer Assistants), 4-5.4 (Professional Independence of a Lawyer), 4-5.6 (Restrictions on Right to Practice), 4-8.1 (Bar Admission and Disciplinary Matters), 4-8.3 (Reporting Professional Misconduct), 4-8.4 (Misconduct), and 5-1.1 (Trust Accounts). Further, the Bar proposes the creation of new rules 4-1.18 (Duties to Prospective Client) and 4-2.4 (Lawyer Serving as Third-Party Neutral). The Bar also proposes the deletion of rule 4-2.2 (Intermediary).[2]
After considering the relevant comments filed and holding oral argument, the Court adopts The Florida Bar's proposals, except as follows.
The Bar proposed amending rule 4-1.7 (Conflict of Interest; General Rule), to include language regarding a current client's consent to representation despite a potential conflict. The Bar's proposal focused solely on confirming the client's consent in writing. However, in light of comments and oral argument, the Court modifies this proposal to permit a client to also consent by clear statements made on the record at a hearing. With regard to rule 4-1.18 (Duties to Prospective Client), the Bar's proposal differs from the ABA model rule in a significant manner. The ABA model rule permits screening, while the Bar's proposal does not. At oral argument, the Business Law Section of The Florida Bar presented arguments opposing the Bar's changes to the ABA model. After considering the various arguments, the Court modifies the proposal by including language from the ABA model rule that permits screening.
Due to possible contradictions in the proposed amendments for rule 4-3.3 (Candor Toward the Tribunal), the Court does not adopt the proposal. The Court directs the Bar to further study the proposal for rule 4-3.3.
After considering the proposed amendments to rule 4-3.6 (Trial Publicity), the Court does not adopt those amendments. Thus, there are no changes to this rule.
After considering the comments submitted by the State Attorney of the Sixth Judicial Circuit, the Florida Prosecuting Attorneys Association, and the United States Attorneys for the Districts of Florida, the Court does not adopt the proposed amendment to rule 4-3.8 (Special Responsibilities of a Prosecutor) that sought to create a new subdivision (b). The proposal for new subdivision (b) would have required the prosecutor in a criminal case to make reasonable efforts to ensure that the accused is advised of the right to counsel, is advised of the procedures to follow for obtaining counsel, and has been given a reasonable opportunity to obtain counsel. However, the Florida Rules of Criminal Procedure already invest in other persons or entities the obligations contained in this proposal. For example, Florida Rule of Criminal Procedure 3.111 outlines duties and responsibilities of both the courts and the police to provide counsel to indigents and partially indigent persons. In addition, rule 3.130 provides that the trial judge must at first appearance inform the defendant of the right to counsel and of the right to appointed counsel if the defendant cannot afford to retain counsel. The court must also give defendants who can afford counsel and who desire to retain counsel a reasonable time in which to obtain counsel on their own. These rules adequately require the police and the courts to give criminal defendants the proper information pertaining to the right to counsel and how that right can be exercised. Placing these obligations on prosecutors under the Rules Regulating the Florida Bar is neither necessary nor desirable. If prosecutors are to have obligations in this area, it should be made a part of the criminal procedure rules and not the Florida Bar rules.
Further, the Court does not adopt the other proposed amendment to rule 4-3.8 that sought to create new subdivision (e), which would have restricted a prosecutor from subpoenaing a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client. The Court directs the Bar to further study this proposal, including the differences between the Bar's proposal and the ABA model rule.
The Bar proposes changing the commentary to rule 4-4.1 (Truthfulness in Statements to Others), to conform to the ABA model rule. However, the proposal contains an unexplained deviation from the ABA model. After considering the proposal and the ABA model, the Court modifies the proposal to conform to the ABA model.
Accordingly, the Court adopts the amendments to the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. Deletions are indicated by struck-through type, and new language is indicated by underscoring. The comments are included for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall become effective on May 22, 2006, at 12:01 a.m.
It is so ordered.
PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.
Original Proceeding – The Rules Regulating the Florida Bar
John F. Harkness, Jr., Executive Director, Tallahassee, Florida, Alan B. Bookman, President, Pensacola, Florida, Adele I. Stone, Chair, Special Committee to Review the ABA Model Rules 2002, Fort Lauderdale, Florida, John A. Boggs, Director, Legal Division, Mary Ellen Bateman, Director, Legal Division DEUP, Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida,
for Petitioner
Marion J. Radson, City Attorney, Ex Officio Member of the Executive Council and Past Chair, City, County and Local Government Law Section, Gainesville, Florida, Florida, Craig J. Coller, Chair, City, County and Local Government Law Section, Miami, Florida, Anne Bast Brown, County Attorney, Levy County, Bronson, Florida, Kraig A. Conn, Deputy General Counsel, Florida League of Cities, Inc., Tallahassee, Florida, John Joseph Fredyma, Fort Myers, Florida, Gerald T. Buhr, P.A., Lutz, Florida, John C. Wolfe, City Attorney, City of St. Petersburg, St. Petersburg, Florida, Alan Hardy Prather and Michele S. Hall of Dye, Deitrich, Prather, Petruff and St. Paul, P.L., Bradenton, Florida, Frank S. Bartolone, Esquire, Boynton Beach, Florida, Michael S. Mullin, County Attorney, Nassau County, Fernandina Beach, Florida, Elizabeth M. Hernandez, City Attorney, City of Coral Gables, Coral Gables, Florida,
for Proponents
Bob Dillinger, Public Defender, Sixth Judicial Circuit, Clearwater, Arthur I. Jacobs, General Counsel, Florida Prosecuting Attorneys Association, Fernandina Beach, Florida, Katherine E. Giddings of Akerman Senterfitt, American Insurance Association (â€
