The recent amendments to the Rules Regulating The Florida Bar go into effect on February 1, 2018.
Gifts to Lawyers: Bar Rule 4-1.8 (Conflict of Interest; Prohibited and Other Transactions) has been amended to prohibit a lawyer from soliciting any gift from a client, or from preparing an instrument that gives the lawyer or a member of the lawyer’s family any gift. The Rule previously prohibited the solicitation of “substantial” gifts from a client.
Soliciting Clients: The amendment to Rule 4-7.18 (Direct Contact With Prospective Clients) expands the term “solicit” to include contact in person “by electronic means that include real-time communication face-to-face, such as video telephone or video conference, or by other communication directed to a specific recipient.”
Court Rejected Amendment to Advertising Rule Relating to Specialization
Rule 4-7.14 (Potentially Misleading Advertisements) prohibits lawyers who are not board certified from making statements that they are specialists or experts in a particular field. In 2015, the District Court for the Northern District of Florida ruled that the prohibition was unconstitutional under the First Amendment, explaining the Rule broadly prohibits even truthful statements about expertise and “the state cannot prevent a person from advertising a lawful specialty, even if the state’s own definition of the specialty is different.” The court also addressed the issue that some fields do not have a board certification.
In response to that decision, The Florida Bar proposed an amendment to Rule 4-7.14 that would permit a lawyer to identify as a “specialist” or “expert” if the lawyer’s “experience and training demonstrate specialized competence in an area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules.” The proposed amendment further provided that, if the area of claimed specialization or expertise is an area of practice covered by the Florida Certification Plan, the advertisement must include a disclaimer that the lawyer is not board certified.
The Supreme Court of Florida rejected that amendment, explaining the proposal “does not sufficiently address the district court’s decision, and that the language requiring that a lawyer’s experience be ‘reasonably comparable’ to the Florida Certification Plan will prove to be problematic because it could lead to differing and inconsistent applications.”
The Court clarified the time limits for the grievance process:
Bar Rule 3-7.16 (Limitation on Time to Bring Complaint) is renamed “Limitation on Time to Open Investigation” and is substantially amended to clarify the limitations period for opening an investigation into allegations of lawyer misconduct. Subdivision (a) is renamed “Time for Initiating Investigation of Complaints and Re-opened Cases,” and will now include three new subdivisions. Subdivision (a)(1) (Initial Complaint or Investigation) provides that a complainant must make a written “inquiry” to the Bar within six years from the time the matter giving rise to the inquiry or complaint is discovered or should have been discovered. In the case of an investigation initiated by the Bar, the Bar must open the investigation within six years from the time the matter is discovered or should have been discovered. Subdivision (a)(2) (Re-opened Investigations) provides that a re-opened disciplinary investigation is not time barred if the matter is re-opened within one year after it was closed. And subdivision (a)(3) (Deferred Investigations) states that a timely disciplinary investigation that was deferred consistent with Bar policy and the Bar Rules is not time barred if the grievance committee finds probable cause and the Bar files its formal complaint within one year after notice that the civil, criminal, or other proceedings that were the basis for the deferral have concluded. The remaining subdivisions in this rule are also amended as proposed by the Bar.
Certification in International Arbitration:
We also adopt a new Subchapter 6-31 (Standards for Board Certification in International Litigation and Arbitration), outlining standards for board certification in the field of International Litigation and Arbitration. This subchapter includes four new Bar Rules.
Paralegals and Out-of-State Attorneys:
We amend Bar Rule 10-2.1 (Generally), as proposed by the Bar, first in subdivision (b) (Paralegal or Legal Assistant) to add language authorizing a paralegal to work under the supervision of an out-of-state lawyer or foreign lawyer engaged in the authorized practice of law in Florida. We also amend subdivision (e) (Bar Counsel) to include in the definition of “Bar Counsel” Unlicensed Practice of Law (UPL) counsel and UPL staff counsel.
We amend several rules within Chapter 12 of the Bar Rules, as proposed by the Bar, which, together with the amendments to Bar Rule 1-7.5 discussed herein, expand the existing eligibility requirements and allow more lawyers to serve as emeritus lawyers, providing pro bono legal services to the community under the supervision of an approved legal aid organization. The Bar proposed these changes based on recommendations from the Florida Commission on Access to Civil Justice. As amended, this Chapter will now permit inactive or retired Bar members, inactive or retired lawyers who practiced in any other state or territory of the United States or the District of Columbia, former judges, current or former law professors, and authorized house counsel to serve as emeritus lawyers and perform this important service.
We amend several rules in Chapter 17 of the Bar Rules (Authorized House Counsel Rule), as proposed by the Bar, to allow both lawyers licensed to practice law in any United States jurisdiction other than Florida, and those authorized to practice as a lawyer or counselor in a foreign jurisdiction, to serve as authorized house counsel.
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