IN RE: AMENDMENTS TO the FLORIDA RULES OF JUDICIAL ADMINISTRATION—2020 REGULAR-CYCLE REPORT. (2021)

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Judicial Administration. We have jurisdiction. See art. V, § 2(a), Fla. Const. With one exception, we adopt the Florida Bar Rules of Judicial Administration Committee's (Committee) amendments as proposed. As explained below, we decline at this time to adopt the amendments to rule 2.420 (Public Access to and Protection of Judicial Branch Records).

I. BACKGROUND

The Committee filed its regular-cycle report ¹ proposing amendments to the following rules: 2.110 (Scope and Purpose); 2.265 (Municipal Ordinance Violations); 2.330 (Disqualification of Trial Judges); 2.420 (Public Access to and Protection of Judicial Branch Records); 2.505 (Attorneys); and 2.510 (Foreign Attorneys). The Committee had previously published its proposals for comment. Numerous comments were received, and while considered, they were largely rejected by the Committee. The Board of Governors of The Florida Bar approved the proposals unanimously. Upon publication by the Court, four comments were filed, by Florida Bar members Anthony C. Musto and Rex E. Russo, individually, the “News Media Coalition,”² and the Florida Association of Court Clerks, Inc. d/b/a Florida Court Clerks & Comptrollers (FACC).³ As discussed below, we adopt the Committee's amendments as proposed with one modification to rule 2.510 (Foreign Attorneys), and with the exception of rule 2.420.

II. AMENDMENTS 4

First, rule 2.110 (Scope and Purpose) is amended to modify the title of this body of rules, to the “Florida Rules of General Practice and Judicial Administration.” The rules are to be abbreviated “Fla. R. Gen. Prac. & Jud. Admin.” This change is intended to clarify to Bar members that this chapter of rules is relevant not only to judges.

Next, we amend rule 2.265 (Municipal Ordinance Violations) to remove a conflict with section 90.202(10), Florida Statutes (2019). Under that statutory provision, a court may take judicial notice of, “[d]uly enacted ordinances and resolutions ․ provided [they] are available in printed copies or as certified copies,” while subdivision (d), Judicial Notice of Municipal Ordinances, of rule 2.265 requires judges to take judicial notice of a municipal ordinance “if a certified copy of the ordinance is presented to the court.” Accordingly, subdivision (d) is removed and subdivision (e) is redesignated as (d).

Numerous changes are adopted to rule 2.330 (Disqualification of Trial Judges).

First, subdivision (a), Application, is amended to clarify to which judges this rule applies by adding the text “when acting alone as the sole judicial officer in a trial or appellate proceeding.” In addition, a new sentence is added to clarify to whom the rule does not apply.

With respect to subdivision (c), Motion, the more substantial change is the addition to the second numbered paragraph that the motion “identify the precise date when the facts constituting the grounds for the motion were discovered.” The remainder of the amendments are organizational.

Subdivision (d), Grounds, is redesignated (e), and (d) is retitled “Service.”

New subdivision (e), Grounds, is amended to clarify the nonexclusive grounds upon which a motion to disqualify may be raised, and to require the inclusion in the motion of “all specific and material facts upon which the judge's impartiality might reasonably be questioned.”

Next, new subdivision (f), Prohibition Against Creation of Grounds for Disqualification Based Upon Appearance of Substitute or Additional Counsel, is amended in order to eliminate the ability of manipulation by practitioners who create grounds for disqualification through the appearance of substitute or additional counsel. Thus, the provision as amended provides that with the addition of new substitute counsel or additional counsel that that party is prohibited from filing a motion for disqualification based on the new attorney's involvement in the case.

Former subdivision (e), Time, is now designated subdivision (g). The time period within which to file a motion to disqualify after discovery of the facts giving rise to the motion is amended from ten to twenty days. Further, the rule is amended to provide for measuring that time from discovery of the relevant facts by either the party or the party's counsel, whichever is earlier.

Former subdivision (f), Determination — Initial Motion, is redesignated (h). An internal cross-reference is corrected and new language clarifies that a determination that a motion to disqualify is legally sufficient “does not constitute acknowledgment that the allegations are true.”

The remaining subdivisions are redesignated (i)-(l) and the amendments thereto are largely technical. In addition, former subdivision (h), Prior Rulings, now subdivision (j), is amended to require that a motion to reconsider prior rulings by a successor judge must be filed within thirty, rather than twenty, days of the order of disqualification. And former subdivision (i), Judge's Initiative, is now (k), and is retitled “Recusal Upon Judge's Initiative.”

Next, we decline to adopt the proposed amendments to rule 2.420 (Public Access to and Protection of Judicial Branch Records). According to the report, the proposed amendments to rule 2.420 are intended to substantially reorganize the rule to make the rule easier to understand and use. However, after a thorough review of the Committee's proposals, it appears to the Court that the proposed amendments do more than simply reorganize and clarify this complex rule. Rather, the proposed amendments appear to delete certain requirements from the rule and make other substantive changes to the rule that are not acknowledged in the report or if acknowledged, the reason for the deletion or change is not adequately explained. Moreover, because numerous provisions in the existing subdivisions of the rule are deleted or moved to other subdivisions throughout the reorganized rule without adequate cross-referencing in the report, it is difficult for the Court to determine exactly how the rule is being amended and to what extent substantive changes could result from the amendments. The Court appreciates the Committee's efforts to improve rule 2.420 and the efforts of those with whom the Committee consulted. But, for these reasons, we must decline to reorganize rule 2.420 as proposed, until such time as the Committee provides adequate explanations of all its proposed changes.

Next, rule 2.505 (Attorneys) is amended to clarify, with descriptions and subdivision titles, the manner in which attorneys are permitted to appear in actions and proceedings.

For example, subdivision (e), Appearance of Attorney, is amended in many respects. First, subdivision (e)(1) is amended to add the title “First Pleading or Document.” The subdivision establishes an attorney's appearance through the signing of the first pleading or document filed for a party. Subdivision (e)(2) adds the title “Notice of Appearance” and establishes the attorney's appearance by filing a notice on behalf of a party. Then, subdivision (e)(3) is titled “Order on Substitution of Counsel,” and the text is replaced with the following: “Filing of a written order by the court, that reflects written consent of the client. The court may condition substitution of counsel upon payment of or grant of security for the substituted attorney's fees and expenses or upon such other terms as may be just.” The remaining three subdivisions are new. Subdivision (e)(4) is titled “Notice of Substitution of Counsel” and allows for substitution of counsel when the substituting attorney is from the same firm, company, or governmental agency as the attorney of record. Subdivision (e)(5) is titled “Notice of Limited Appearance,” and reflects that a filing of a notice of limited appearance is permitted by another rule of court. Finally, subdivision (e)(6) is titled “Appearance as Stand-In Counsel,” and provides that counsel may appear as stand-in pursuant to redesignated subdivision (g) (Stand-In Counsel).

Subdivision (f), Termination of Appearance of Attorney, is amended for clarification. Subdivision (f)(1), “Withdrawal of Attorney,” is rewritten to remove the first part and states that a withdrawal of counsel may occur by a “written order of the court after hearing upon a motion.” Subdivision (f)(2), “Substitution of Attorney,” is completely rewritten and provides that substitution of counsel is pursuant to subdivisions (e)(3) or (e)(4) of this rule. Subdivision (f)(3), “Termination of Proceeding,” as amended clarifies that representation is terminated when an action or proceeding is terminated or when the time for appeal expires. Subdivision (f)(4) is retitled from “Filing of Notice of Completion” to “Termination of Post-Judgment Appearance” and is rewritten into two subparts addressing termination of a postjudgment attorney, one pertaining to noncriminal matters and the other pertaining to criminal or juvenile procedure. The last two subdivisions under (f) are new; (f)(5) is “Termination of Limited Appearance,” and (f)(6) is “Termination of Hearing.” Under (f)(5), the subdivision permits the filing of a termination of appearance if the attorney appeared pursuant to a notice of limited appearance pursuant to rule 2.505(e)(4). Under (f)(6), the subdivision provides for the automatic conclusion of stand-in counsel pursuant to subdivision (g) (Stand-In Counsel).

Current subdivision (g), Law Student Participation, is redesignated as subdivision (j), and subdivision (g) is renamed “Stand-In Counsel.” The subdivision is rewritten and provides the procedure in which an attorney may appear as stand-in counsel. However, a stand-in attorney from the same law firm, company, or government agency is not required to file a notice of stand-in counsel.

Subdivision (h), Attorney as Agent of Client, is rewritten in its entirety as follows: “An attorney appearing in an action or proceeding pursuant to subdivisions (e)(1)-(e)(6) is the agent authorized to bind the client for purposes of the action, hearing, or proceeding.”

New subdivision (i) is titled “Attorney of Record” and defines what that term constitutes.

Finally, new subdivision (j) is former subdivision (g) and is retitled as “Law Student and Certified Legal Intern Participation.” The text of the subdivision remains the same.

Last, the amendments to rule 2.510 (Foreign Attorneys) are limited to providing additional directions and further specifying the information that foreign attorneys are to provide in seeking pro hac vice status and continuing to appear as counsel before a court in Florida in subdivision (b), Contents of Verified Motion. In addition, on the Court's own motion, we modify the title of the form and paragraph 14 in the form to reflect the change of the name of these rules as amended in rule 2.110.

III. CONCLUSION

Having considered the Committee's report, the comments submitted to the Committee and to the Court, and the Committee's responses to the comments, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective March 1, 2021, at 12:01 a.m.

It is so ordered.

APPENDIX

FOOTNOTES

1.   See Fla. R. Jud. Admin 2.140(b). The Committee's report was filed on February 3, 2020, prior to the effective date of the amendments adopted in In re Amendments to Florida Rule of Judicial Administration 2.140, 289 So. 3d 1264 (Fla. 2020), which “[did] away with the set schedule for rules committee reports.” Id. at 1264.

2.   The “News Media Coalition” consists of the Associated Press, the Bradenton Herald, Inc., Courthouse News Service, the First Amendment Foundation, the Florida Press Association, Gannett (d/b/a/ Daily Commercial, Daytona Beach News-Journal, Florida Today, Herald-Tribune, Naples Daily News, Northwest Florida Daily News, Ocala Star Banner, Panama City News Herald, Pensacola News Journal, Tallahassee Democrat, TC Palmv, The Destin Log, The Florida Times-Union, The Gainesville Sun, The Ledger, The News-Press, The Palm Beach Post, The Star, The Walton Sun, and Washington County News), Miami Herald Media Company; the New York Times Company, Nexstar (d/b/a WFLA-TV/WTTA-TV, and WMBB-TV), Orlando Sentinel Communication Company, LLC, Sun-Sentinel Company, LLC, and TEGNA Inc. (d/b/a WTLVTV, WJXX-TV, and WTSP-TV).

3.   The FACC's comment is not directed at any of the Committee's proposals addressed in this opinion, but was limited to the comment filed by the “News Media Coalition.”

PER CURIAM.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, MUÑIZ, COURIEL, and GROSSHANS, JJ., concur.