IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR (BIENNIAL PETITION).

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Supreme Court of Florida.

IN RE: AMENDMENTS TO THE RULES REGULATING THE FLORIDA BAR (BIENNIAL PETITION).

No. SC16-1961

    Decided: November 09, 2017

John F. Harkness, Jr., Executive Director, Michael J. Higer, President, Michelle R. Suskauer, President-Elect, William J. Schifino, Jr., Past President, Lori S. Holcomb, Director, Division of Ethics and Consumer Protection, and Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, Tallahassee, Florida, for Petitioner Thomas O. Wells of Wells & Wells, P.A., Coral Gables, Florida; and Timothy P. Chinaris, Nashville, Tennessee, Responding with Comments

This matter is before the Court on the petition of The Florida Bar proposing amendments to the Rules Regulating the Florida Bar (Bar Rules). We have jurisdiction. See art. V, § 15, Fla. Const.

The Florida Bar (Bar) has filed its biennial petition proposing both new rules and amendments to a number of existing Bar Rules. The proposals were approved by the Board of Governors of The Florida Bar, and formal notice of the proposed amendments was published in The Florida Bar News. The notice directed interested persons to file their comments directly with the Court. The Court received two comments; the Bar filed a response to the comments.

After fully considering the Bar's petition, the comments, and the response, we adopt the majority of the Bar's proposals, with some modifications,1 as discussed in this opinion. However, as addressed below, we decline to adopt the Bar's proposed amendments to Bar Rule 4-7.14 (Potentially Misleading Advertisements) at this time, and we refer this matter back to the Bar for further consideration. We discuss the new rules and more significant rule amendments below.

AMENDMENTS

First, Bar Rule 1-3.2 (Membership classifications) is amended in subdivision (a) (Members in Good Standing), as proposed by the Bar, to allow members of the Bar who have voluntarily selected inactive status to be classified as “members in good standing.” New subdivision (a)(2) provides that members of the Bar who have elected inactive status, paid their annual memberships fees, and who are not retired, resigned, delinquent, suspended, or inactive because of incapacity, are considered members in “good standing” for purposes of obtaining a certificate of good standing and for no other purpose.

We amend Bar Rule 1-7.5 (Retired, Inactive, Delinquent Members), as recommended by the Bar, to authorize retired or inactive Bar members to practice law as an “emeritus lawyer” pursuant to the Emeritus Attorneys Pro Bono Participation Program in Chapter 12 of the Bar Rules. This amendment, and other amendments to the Bar Rules addressed herein, were recommended by the Florida Commission on Access to Civil Justice, and are intended to increase the pool of lawyers authorized to provide pro bono legal services to the community under the supervision of a legal aid organization.

Next, we amend Bar Rule 1-12.1 (Amendment to Rules; Authority; Notice; Procedures; Comments), as proposed by the Bar—subdivision (g) (Notice of Intent to File Petition) will now require that the Bar's notice of its intent to file a petition to amend the Bar Rules, published in The Florida Bar News and on its website, identify the rules to be amended and state in general terms the nature of the proposed amendments; the full text of the Bar's proposals will be published only on the Bar's website. Also in Bar Rule 1-12.1, we amend subdivision (h) (Action by the Supreme Court of Florida) to provide that a summary of the Court's final action on a petition to amend the Bar Rules will be reported in The Florida Bar News and on the Bar's website.

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”2 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.

Bar Rule 4-1.8 (Conflict of Interest; Prohibited and Other Transactions) is amended in subdivision (c) (Gifts to Lawyer or Lawyer's Family) 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. This change was proposed by the Bar in response to a suggestion from the Real Property Probate and Trust Law Section. We also amend the comment to rule 4-1.8 to explain this prohibition, and other subdivisions throughout rule 4-1.8 to clarify language. However, we have revised the Bar's proposal in subdivision (h) (Limiting Liability for Malpractice), as recommended in the comment from Attorney Timothy P. Chinaris, to remove the reference to “prospective” malpractice.

We decline to adopt the Bar's proposal to amend Bar Rule 4-7.14 (Potentially Misleading Advertisements). The Bar proposes amendments to this rule in response to a decision from the United States District Court for the Northern District of Florida, which held, in relevant part, that provisions in Bar Rule 4-7.14(a) broadly prohibiting lawyers who were not board certified from making truthful statements that they “specialize in” or “have expertise in” a particular field of practice were unconstitutional. In response to this decision, the Bar recommended amending the rule in subdivision (a) (Potentially Misleading Advertisements) to add a new subdivision (a)(5), which would prohibit lawyers from using in their advertisements the terms “specialist,” “expert,” or other variations of those terms unless the lawyer meets one of the four criteria established in subdivisions (a)(5)(A)-(a)(5)(D). The criteria in subdivisions (a)(5)(A), (a)(5)(B), and (a)(5)(C) are similar to those in other parts of rule 4-7.14. However, subdivision (a)(5)(D) would provide that a lawyer may 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”; if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement must include a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by the Bar or another certification program. We are concerned that the Bar's proposal here 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. Because we believe that this important issue requires further study, we decline to adopt the Bar's proposed amendments to rule 4-7.14, and we refer this matter to The Florida Bar for additional consideration.

Next, we have made several amendments to Bar Rule 4-7.18 (Direct Contact with Prospective Clients). As proposed by the Bar, subdivision (a) (Solicitation) is amended to provide that the term “solicit” includes contact in person, by telephone, by electronic means that include real-time communication face-to-face, or by any other communication directed to a specific recipient that does not meet the requirements of the rule. Additionally, we amend subdivision (b)(2) (Written Communication) to require that permitted written communications to prospective clients for the purpose of obtaining professional employment must be marked with the label “advertisement” on each separate enclosure, rather than each separate page. If the written communication is a self-mailing brochure or pamphlet, the “advertisement” mark must be included on the address panel of the brochure or pamphlet, on the inside of the brochure or pamphlet, and on each separate enclosure. Subdivision (b)(3) is also amended, as proposed by the Bar, to provide that the requirements contained in subdivision (b)(2) do not apply to communications made at a prospective client's request.

In Bar Rule 5-1.1 (Trust Accounts), we amend subdivisions (a)(1) (Nature of Money or Property Entrusted to Attorney; Trust Account Required; Location of Trust Account; Commingling Prohibited), (a)(2) (Nature of Money or Property Entrusted to Attorney; Compliance with Client Directives), (g)(1)(D) (Interest on Trust Accounts (IOTA) Program; Definitions; Eligible Institution), and (g)(5) (Interest on Trust Accounts (IOTA) Program; Eligible Institution Participation in IOTA) to permit lawyers to maintain trust accounts in federally insured credit unions. We amend subdivision (g)(4) (Interest on Trust Accounts (IOTA) Program; Notice to Foundation) to direct lawyers to the Bar's website for The Florida Bar Foundation's current address. We also amend other subdivisions in Bar Rule 5-1.1, as proposed by the Bar. However, we have revised the Bar's proposal in paragraphs seven and eight of the comment to the rule, as recommended in the comment from Mr. Chinaris, to delete the parentheticals included with the citations to case law.

We next adopt a new Bar Rule 6-3.7 (Inactive Status), to allow board certified members of the Bar to apply for a temporary inactive status in certain circumstances. Subdivision (a) (Purpose) of the new rule provides that the inactive status is available to eligible members who apply and are qualified for such status under the provisions of the rule. Subdivision (b) (Applicability) outlines six categories of eligible members. These include board certified members appointed or elected to serve as a judicial officer; we have revised the Bar's proposal in subdivision (b)(1) to include administrative law judges in the list of “judicial officers.” Other categories of members eligible for inactive status include: law professors teaching in an accredited law school or graduate law course who agree not to practice if granted inactive status; professional neutrals, including mediators, arbitrators, or voluntary trial resolution judges, who agree not to practice law if granted inactive status; active duty military personnel; members who are unable to practice law due to a “unique substantial and material hardship, medical or otherwise”; and, during the two years immediately following the effective date of the rule, members who voluntarily relinquished their board certification before the effective date of the rule, but who would otherwise be eligible for inactive status may be granted such status. Subdivision (c) (Qualifications) outlines the qualifications for maintaining board certified inactive status. Any Bar member granted board certified inactive status must maintain an active membership in The Florida Bar, obtain the continuing legal education credit that would be required for recertification in their practice area, and comply with the applicable rules and policies for board certification. Subdivision (d) (Revocation or Relinquishment of Board Certified Inactive Status) provides that the Board of Legal Specialization and Education (BLSE) may revoke a member's board certified inactive status if the member fails to comply with the policies. On revocation, the member cannot use the phrase “board certified inactive”; the member also cannot use the phrase “board certified” unless he or she is reactivated to board certification. Alternatively, a board certified inactive member is required to notify the BLSE within ninety days if he or she no longer qualifies for board certified inactive status, or no longer wishes to retain that status. The member must immediately cease using the phrase “board certified inactive,” and either apply to reactivate their board certification or relinquish the certification. Finally, subdivision (e) (Reactivation to Board Certified Status and Recertification) outlines the procedures for seeking reactivation of board certification status.

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. Bar Rule 6-31.1 (Generally) provides that a member in good standing with The Florida Bar, who is eligible to practice law in Florida and meets the standards prescribed in Subchapter 6-31, may be issued a certificate identifying the lawyer as board certified in International Litigation and Arbitration. Bar Rule 6-31.2 (Definitions) provides definitions for the terms “International Litigation and Arbitration,” “Practice of Law,” and “International Litigation and Arbitration Certification Committee.” Bar Rule 6-31.3 (Minimum Standards) outlines the minimum standards of practice, experience, and education required to earn a certification in International Litigation and Arbitration. And Bar Rule 6-31.4 (International Litigation and Arbitration Recertification) describes the requirements for seeking recertification in International Litigation and Arbitration at the conclusion of a five-year cycle.

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.

Bar Rule 10-9.1 (Procedures for Issuance of Advisory Opinions on the Unlicensed Practice of Law) is amended, as proposed by the Bar, to address procedures for requesting and issuing proposed advisory opinions on the unlicensed practice of law. Subdivision (b) (Requests for Advisory Opinions) is reworded to provide that a petitioner may request a formal advisory opinion concerning activity that may constitute the unlicensed practice of law by submitting a question to the Bar's UPL Department. We also amend subdivision (b) to make clear that the request must be in writing, include all of the operative facts, and ask whether the activity constitutes the unlicensed practice of law. We amend subdivision (c), renamed “Limitations on Advisory Opinions,” to include that no advisory opinion may be rendered as to any matter that is currently the subject of an unlicensed practice of law investigation or grievance investigation by the Bar. And we amend subdivision (g) (Service and Judicial Review of Proposed Advisory Opinions), pertaining to proceedings in this Court to review proposed advisory opinions issued by the Standing Committee on UPL. The petitioner or any other interested party may file either a brief or a memorandum in response to the proposed advisory opinion. The Standing Committee's response, and any reply, may also be in the form of either a brief or a memorandum.

We amend several rules within Chapter 12 of the Bar Rules,3 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 also amend a number of rules within Chapter 16 of the Bar Rules (Foreign Legal Consultancy Rule), and add a new Bar Rule 16-1.7 (Annual Sworn Statement). Among other changes in this Chapter, Bar Rule 16-1.2, renamed “General Certification Regulations,” is amended to change some of the requirements for certification as a foreign legal consultant, such that a foreign lawyer applying for certification must demonstrate that he or she has engaged in the practice of law in a foreign country for not less than three of the five years immediately preceding the application; he or she must not have been disciplined for professional misconduct by the bar or courts of any jurisdiction within the last seven years; and he or she must not have been denied admission to practice before the courts in any jurisdiction based upon the applicant's character and fitness during the ten-year period immediately preceding the application. We have deleted existing language in the rule requiring applicants to be over twenty-six years of age.

Additionally, in Bar Rule 16-1.3 (Activities), we amend subdivision (a) (Rendering Legal Advice), as recommended by the Bar; however, we decline to adopt the proposed amendments in subdivision (b) (Representing Status as Member of The Florida Bar), which would serve to delete the requirement that foreign legal consultants provide clients a letter disclosing the extent of their professional liability insurance coverage, as well as the fact that the client will not have access to the Clients' Security Fund in any discipline case against the foreign lawyer. We believe these disclosures serve an important role in protecting clients.

Finally, 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. Within Chapter 17, we delete existing Bar Rule 17-1.7 (Immunity from Prosecution) in its entirety, because this rule is no longer necessary. However, because the rule amendments we adopt in this case will now permit foreign lawyers to serve as authorized house counsel, such foreign lawyers who are duly registered as authorized house counsel under Chapter 17 of the Bar Rules will not be subject to prosecution for the unlicensed practice of law for acting as counsel to a business organization prior to the effective date of these rule amendments.

CONCLUSION

Accordingly, the Court amends the Rules Regulating the Florida Bar as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The comments are offered for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall become effective on February 1, 2018, at 12:01 a.m.

It is so ordered.

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FOOTNOTES

1.   We have revised the Bar's proposals in several Bar Rules to make technical or editorial changes.

2.   We amend Bar Rule 3-2.1 (Generally), as proposed by the Bar, to add a new definition for the term “Inquiry,” meaning a written communication received by Bar counsel questioning the conduct of any Bar member.

3.   We also revise the title of Chapter 12 to “Emeritus Lawyers Pro Bono Participation Program.”

PER CURIAM.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

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