Sunday, November 12, 2017
The Florida Supreme Court has adopted a number of significant revisions to its procedural and substantive rules governing lawyers but declined to act on this proposal
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.
The court explained
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.
Key clarification of time limits
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.
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.
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.
Also a 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.
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.
Access to justice
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.
A bow to globalization
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.
...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.