Proposed board actions Proposed board actions Pursuant to Standing Board Policy 1.60, the Board of Governors of The Florida Bar hereby publishes this notice of intent to consider or take final action at its March 28, 2008 meeting in Washington D.C. on the following items. These matters are additionally governed by Rule 1-12.1, Rules Regulating The Florida Bar, where applicable. Most amendments to the Rules Regulating The Florida Bar that are finally acted upon by the board must still be formally presented to the Supreme Court of Florida, with further notice and opportunity to be heard, before they are officially approved and become effective. To receive a full copy of the text of any of these proposed amendments call (850)561-5751. Please reference any requested proposal by its title or item number and date of this publication. RULES REGULATING THE FLORIDA BAR Chapter 1 General Subchapter 1-3 Membership 1. Rule 1-3.12 Provision of Legal Services Following Determination of Major Disaster Summary: New rule, in connection with separate proposed amendments to rule 4-5.5, which relaxes practice restrictions on attorneys not admitted in a jurisdiction that sustains a major disaster affecting its justice system, after a determination of such by the highest court of that jurisdiction. Subchapter 1-12 Amendments 2. Rule 1-12.1 Amendment to Rules; Authority; Notice; Procedures; Comments Summary: In connection with companion amendment of SBP 1.10 and SBP 6.20, deletes within subdivision (a) the reference to the “designation plan.” Chapter 3 Rules of Discipline Subchapter 3-2 Definitions 3. Rule 3-2.1 Generally Summary: Within subdivision (p) re designated reviewer, codifies that a designated reviewer for a specially created grievance committee will be selected by the president and approved by the board. Subchapter 3-3 Jurisdiction to Enforce Rules 4. Rule 3-3.2 Board of Governors of The Florida Bar Summary: In connection with separate proposed amendments to rule 3-7.2, within subdivision (b) re authority to file complaints based on felony charges, adds that a grievance committee chair’s decision to not file a complaint may be reviewed by the full committee, which may affirm or reverse the chair’s decision; also adds a decision of the Florida Supreme Court imposing judicial discipline in an action brought by the Judicial Qualifications Commission to the list of events that authorizes the filing of a formal lawyer disciplinary complaint; includes other non-substantive edits, adds appropriate subdivision titles and numbers consistent with controlling editorial protocols, and redesignates other affected entries as necessary. Subchapter 3-5 Types of Discipline 5. Rule 3-5.4 Publication of Discipline Summary: Proposed new rule, to codify court and bar policy regarding publication of disciplinary sanctions in the Southern Reporter and The Florida Bar News, and on The Florida Bar’s website. Subchapter 3-7 Procedures 6. Rule 3-7.2 Procedures Upon Criminal or Professional Misconduct; Discipline Upon Determination or Judgment of Guilt of Criminal Misconduct Summary: In connection with separate proposed amendments to rule 3-3.2, adds new subdivision (m), re discipline upon removal from judicial office, to require notice to the bar of any order of the supreme court removing a member from judicial office; upon receipt of such order, also authorizes the bar to file a formal complaint with the court and to seek appropriate discipline; further provides that the findings of fact by the court in any proceedings resulting in the removal of a member from judicial office shall be conclusive proof of such facts in bar disciplinary proceedings. 7. Rule 3-7.6 Procedures Before a Referee Summary: Within subdivision (a), adds language requiring that, before a judge may be appointed to serve as a referee, the judge must have served as a judicial referee under these rules at least once or have certified to the supreme court that the judge has reviewed pertinent referee training materials; adds appropriate subdivision titles and designations consistent with controlling editorial protocols. 8. Rule 3-7.11 General Rules of Procedure Summary: In connection with companion amendment of rule 4-8.4(g), within subdivision (f) re contempt, provides a summary process for addressing a respondent’s failure to respond to official bar inquiries in disciplinary proceedings; requires bar petition to supreme court, for contempt and order to show cause; provides 10 days for respondent’s response; allows for assignment of matters to a referee for factual findings; and authorizes suspension in such cases. 9. Rule 3-7.13 Incapacity Not Related to Misconduct Summary: Broadens application of the rule to a bar member’s incapacity or hospitalization under the authority of “applicable law” — as well as the Florida Mental Health Act — when that lawyer is incapable of practicing due to physical or mental illness, incapacity, or other infirmity; deletes outdated references to “incompetence” throughout; adds provision allowing a lawyer to consent to incapacity not for misconduct in the same manner as other consent judgments in rule 3-7.9; adds subdivision titles consistent with controlling editorial protocols and redesignates other affected entries as necessary. Chapter 4 Rules of Professional Conduct Subchapter 4-3 Advocate 10. Rule 4-3.3 Candor Toward the Tribunal (client perjury) Summary: Within comment re false evidence, deletes previously approved provision stating the prohibition against offering false evidence only applies if a lawyer knows the evidence is false, and that a lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact; deletes comment re perjury by a criminal defendant, to reflect no difference between the obligations of a civil lawyer and a criminal lawyer re client perjury; and, within comment re remedial measures, deletes provisions re withdrawal, to reflect that withdrawal alone will likely never be an adequate remedial measure when there has been a misrepresentation to the court. Subchapter 4-5 Law Firms and Associations 11. Rule 4-5.5 Unlicensed Practice of Law; Mutijurisdictional Practice of Law Summary: Within subdivisions (c) & (d), adds “or” at the end of each listed instance of authorized temporary practice in Florida, to clarify that a lawyer admitted to practice in a non-Florida jurisdiction need only meet 1 such criterion to be authorized to temporarily practice in Florida ; in connection with separate proposed amendments for new rule 1-3.12, within subdivision (c) and commentary, adds language that allows a lawyer admitted to practice in another U.S. jurisdiction to engage in activities authorized by rule 1-3.12 after a determination of a major disaster by the appropriate court. Subchapter 4-7 Information About Legal Services 12. Rule 4-7.5 Advertisements in the Electronic Media Other Than Computer-Accessed Communications Summary: Within subdivision (b), deletes the requirement, in instances where a nonlawyer spokesperson is used, that an oral disclosure be given that the spokesperson is a spokesperson and is not a lawyer. 13. Rule 4-7.10 Definition of LRS Summary: Within subdivision (c), revises the definition of a lawyer referral service to clarify that the referral of clients for any consideration constitutes a referral service. Subchapter 4-8 Maintaining the Integrity of the Profession 14. Rule 4-8.4 Misconduct Summary: In connection with companion amendment of rule 3-7.11(f), within subdivision (g) specifies that failure to respond to an official bar inquiry without good cause shown may be a matter of contempt. Chapter 6 Legal Specialization and Education Programs Subchapter 6-3 Florida Certification Plan 15. Rule 6-3.7 Board Certified Emeritus Specialist Status Summary: Revises rule title and verbiage throughout, to reflect “board certified” emeritus specialist and add other conforming edits; within subdivision (a), adds new language explaining that board certified emeritus specialist status is intended to distinguish attorneys and judicial officers who are or have been certified and are no longer substantially involved in the practice law sufficient to satisfy standards for certification; adds new subdivision (b), to define “Board Certified Emeritus Specialist” and redesignates subsequent subdivisions appropriately; revises current subdivision (b) – new (c) – to outline eligibility requirements for judicial officers and attorneys seeking to apply for board certified emeritus specialist status, including at least 10 years of certification in the respective area and completion of 2 approved recertification applications; in current subdivision (c) – new (d) – amends language to specify that to qualify, an applicant must no longer be practicing law or substantially involved in the practice sufficient to meet the standards to retain board certification, and eliminates peer review as a criterion for determination of qualification; within subdivision (d) – new (e) – specifies the term “emeritus” must be used in all oral or written communications regarding board certification; and deletes subdivision (h) exemption provisions. Subchapter 6-16 Standards for Certification of a Board Certified Business Litigation Lawyer 16. Rule 6-16.4 Business Litigation; Recertification Summary: Within subsection (b), adds provision for waiver of the evidentiary hearing criteria for applicants who have been certified in business litigation for 14 years or more. STANDING BOARD POLICIES 100 Series General Board Policies 17. SBP 1.10 Seals, Emblems and Publicity Symbols of The Florida Bar Summary: In connection with companion amendment of rule 1-12.1 and SBP 6.20, deletes within subdivision (a) the reference to the “designation plan.” 500 Series Committees, Sections and Divisions 18. SBP 5.80 Divisions of The Florida Bar Summary: Updates references to the Out-Of-State Practitioners Division, to the Out-Of-State Division. 600 Series Continuing Legal Education 19. SBP 6.20 Authority for CLE Courses Summary: In connection with companion amendment of rule 1-12.1 and SBP 1.10, deletes within subdivision (a) the reference to the “designation plan.” 20. SBP 6.31 Distribution of Proceeds Summary: Updates references to the Out-Of-State Practitioners Division, to the Out-Of-State Division. 1500 Series Lawyer Regulation Policies 21. SBP 15.77 Access to Designated Reviewer Summary: Expresses bar policy that designated reviewers shall exercise sound discretion with respect to discussions concerning disciplinary cases with persons other than members of the board of governors, bar counsel, or other bar staff; further states as policy that designated reviewers should report such communications to bar counsel so that bar counsel may be better informed and provide more competent representation. 22. SBP 15.92 Administration of Public Reprimands Summary: New policy which would require the bar president approve the video recording of the administration of a public reprimand. Further states that the bar will not post the video of the administration of a public reprimand on its website. BOARD OF LEGAL SPECIALIZATION AND EDUCATION POLICIES BLSE Policies – 200 Series – Florida Certification Plan 23. BLSE 2.02 Areas of Certification Summary: Within new subdivision (c), requires that proposed amendments to any certification areas be shared with various bar groups for comment prior to submission to the BLSE; within new subdivision (d), adds provision for an evaluation of any certification area that does not reach a 75-member minimum aspirational threshold upon completion of its third application cycle; within new subdivision (e), specifies that the BLSE will submit a written report of its evaluation results to the board of governors within 3 months of completing its evaluation. 24. BLSE 2.17 Stay of Certification Summary: Proposed new policy which specifies instances in which a member may seek a temporary stay of certification; specifies requirements by which such member must abide; and sets forth conditions to lift stay. 25. BLSE 2.18 Judicial Officers Summary: New policy, which defines the term “judicial officer” for those who are board certified and sets forth provisions for judicial officers who wish to retain such certification. BLSE Policies – 500 Series – Course Approval 26. BLSE Policy 5.05 Credit for Other CLE Activities Summary: Within new subdivision (g), permits continuing legal education credit for selected executive branch offices. SECTION BYLAWS 27. Out of State Division Summary: Within Article I, Section 1 (Name and Purpose – Name), revises official section name, to “Out-of-State Division” rather than the Out-of-State Practitioners’ Division; within Article 2 (Membership) deletes Section 2.3 (Affiliate Members) and related entries re such members in Section 2.4 (Removal from Membership); within Article 3 (Officers) adds new subsection (f) (Bar Staff) which formalizes the delegation of tasks to the division’s program administrator but with officers retaining ultimate responsibility for their official duties; within Article 4, Section 1 (Executive Council – Governing Body) adds provisions recognizing that the council may grant authorization to expend funds through the annual budgeting process, and proposing that council business be conducted by “electronic media”; within Section 4.3 (Membership of the Executive Council), clarifies in subdivision (a) (Composition) that the Young Lawyers Division liaison is appointed by the YLD president, increases the number of at-large seats on the council to 6 rather than the current level of “up to 5,” and in subdivision (c) (Terms of Office) proposes that at-large council members serve terms of 2 years instead of the current 3-year terms, with half of those seats open for election each year; within Section 5.1(a)(2) (Committees – Standing Committees – Nominating Committee) reduces the nominating committee to 3 rather than 5 members, with 2 appointed by the president-elect and 1 appointed by the president, at least 4 rather than the current 6 months prior to the division’s annual meeting; deletes the Multi State Practice Committee from the list of standing committees within Section 5.1(a)(6); within Section 5.2 9 (Committee Composition) eliminates the requirement for vice-chairs of each committee; within Section 5.3 (Committee Meetings) authorizes the use of electronic or telephonic communications to conduct committee meetings; within Section 5.6 (Committee Reports) eliminates the current provision keeping committee reports confidential in the absence of authorization by the president; within Section 6.2 (Meetings – Executive Council Meetings) expressly authorizes the executive council to hold meetings telephonically or by electronic means, and shortens the requirement for advance notice of meetings, from 15 to 7 days; within Section 8.3 (Miscellaneous – Compensation and Expenses) clarifies that the reimbursement of executive council member travel expenses is $400 “per meeting;” and redesignates other affected subdivision entries as necessary. March 1, 2008 Regular News
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