Summary
clarifying that that the sanction of permanent disbarment is permanent, and precludes readmission
Summary of this case from The Florida Bar ex Rel. KandekoreOpinion
No. 92,841
September 24, 1998
Original Proceeding — Rules Regulating The Florida Bar
John F. Harkness, Jr., Executive Director, Edward R. Blumberg, President, Howard C. Coker, President-elect, Cynthia A. Everett, Chair, Rules Committee, Paul F. Hill, General Counsel, and John A. Boggs, Director, Legal Division, Tallahassee, for Petitioner The Florida Bar.
David P. Frankel, pro se, Washington, D.C., Responding.
This matter is before the Court on the petition of The Florida Bar for amendments to the Rules Regulating The Florida Bar. The petition is brought on the authority of the Board of Governors of The Florida Bar and invokes this Court's exclusive jurisdiction of the discipline of persons admitted to the practice of law under article V, section 15 of the Florida Constitution.
Except for certain technical corrections, the proposed amendments were published in The Florida Bar News on March 15, 1998. Comments have been filed by one respondent. The issue raised by the comments will be discussed briefly below, as will the principal proposed amendments of a substantive nature.
RULES 1-4.1 AND 2-3.3
The Florida Bar proposes that rule 1-4.1 of the Rules Regulating The Florida Bar be amended to eliminate the requirement of four representatives on the Board of Governors for nonresident members. Instead, the proposed rule would provide that there be at least one representative for each circuit and one for the nonresident members, with the representation of the respective circuits and nonresident members apportioned according to population. Coordinating with the proposed amendments to rule 1-4.1, the Bar proposes to amend rule 2-3.3, providing in proposed new subdivision 2-3.3(a) that the definition of "circuit" shall include "a hypothetical out-of-state judicial circuit with a circuit population equal to 50% of the number of members of The Florida Bar in good standing residing outside the state of Florida." The hypothetical out-of-state circuit with an attorney population equal to fifty percent of the nonresident Florida Bar membership is then to be an element of the apportionment formula for circuit representation on the Board of Governors described in revised rule 2-3.3(b).
We have considered the response filed by David P. Frankel, a nonresident member of The Florida Bar. Mr. Frankel argues that the proposed provisions on representation of nonresident members on the Board of Governors are inadequate and do not provide fair representation. Currently, rule 1-4.1 provides that there will be four governors representing the bar members residing outside the State of Florida. The amendment to rule 1-4.1 eliminates this provision, substituting a provision for at least one representative for each circuit and one from the nonresident members. The amendment to rule 2-3.3 treats the nonresident membership as a separate "circuit" for board representation purposes, with a population equal to fifty percent of the total number of nonresident members of the bar. In Florida Bar re Amendments to Rules Regulating The Florida Bar, 697 So.2d 115, 116-17 (Fla. 1997), we approved an increase of the nonresident board representation to four members. The Florida Bar advises us that with the proposed amendments, the apportionment formula will maintain the current level of representation and allow for future reapportionment as member population ratios change. We therefore find that the proposed apportionment plan adequately provides for representation of nonresident members.
RULE 1-3.7(b)
The proposed amendments to rule 1-3.7(b) would change the provisions on payment of administrative and investigative costs in connection with nondisciplinary reinstatements to membership. Rule 1-3.7 addresses reinstatement to membership in a nondisciplinary context, that is, reinstatement by the Board of Governors following voluntary resignation from the bar, suspension for delinquency in the payment of dues, or suspension for noncompliance with continuing legal education requirements. These "nondisciplinary" suspensions from membership are to be distinguished from suspensions imposed in disciplinary proceedings. The reinstatement procedures following disciplinary suspensions are more elaborate and are set forth in rule 3-7.10. The proposed amendments to rule 1-3.7(b) would eliminate the $500 deposit for investigative costs currently imposed in certain cases, but increase the administrative fee from $50 to $150. The proposal also would allow the Executive Director of The Florida Bar, with the concurrence of the Executive Committee of the Board of Governors, to adjust the administrative fee in specific cases for good cause shown. We find that the proposed amendments would eliminate an unnecessary burden currently being imposed on some applicants, provide a justified increase in the administrative fee for reinstatement applications generally, and provide the Bar needed flexibility with regard to the costs of processing applications in specific cases. We therefore approve the proposed amendments.
RULES 3-7.6 AND 3-7.7
The Bar proposes that rule 3-7.6(l)(1) be amended to eliminate the requirement that referee hearings in disciplinary proceedings at which testimony is taken be reported and the reports be transcribed. Instead, the proposed rule would require that a court reporter attend and "record" the testimony, transcribing it only if directed to do so by the referee or by one of the parties. The party requesting the transcript is to bear the cost of transcription, subject to the possibility of assessment in connection with the judgment ultimately rendered in the case.
The Bar proposes that rule 3-7.7(c)(2) be amended to provide that the party seeking review of a referee's report must order transcripts of any hearings at which testimony was taken, file the transcripts with the court, and serve copies on the other party. Under the proposed amendment, failure to file and serve such transcripts will be cause for dismissal of the petition for review.
We find the proposed amendments to rules 3-7.6 and 3-7.7 to be appropriate and approve them.
RULE 4-1.5
In chapter 4 of the Rules Regulating The Florida Bar, the Rules of Professional Conduct, the Bar proposes certain changes to rule 4-1.5(f)(4)(B), which deals with attorneys' fees in cases of personal injury, property damage, death, or loss of services where the attorney's compensation is contingent on recovery of a judgment or settlement. The rule currently establishes certain limits on the percentage of a recovery that can be agreed upon as an attorney's fee in a contingent fee contract between a lawyer and a client. Percentage fees above these limits are considered presumptively excessive.
The proposed amendment to rule 4-1.5(f)(4)(B)(i)a., regarding cases settled for between $1 million and $2 million before an answer or demand for arbitration is filed or the time for filing same has expired, would reduce the percentage, of that portion of the recovery exceeding $1 million, above which a fee is presumed excessive from thirty percent to twenty percent. In cases settled before such time for more than $2 million, the proposed amendment would reduce the percentage of the portion over $2 million from twenty percent to fifteen percent.
The Bar further proposes amendments to rule 4-1.5(f)(4)(B)(i)c., governing cases where defendants admit liability at the time of filing their answers but demand trial on damages, where the recovery is between $1 million and $2 million. The proposed amendments increase the percentage of the portion over $1 million, above which a fee is presumed excessive, from twenty percent to thirty percent; and in such cases where the recovery exceeds $2 million, increases the percentage of the portion over $2 million, above which the fee is presumed excessive, from fifteen percent to twenty percent.
The Bar provides no explanation for either of these proposed changes to the rule. We are concerned about any proposed increases in the percentages of recovery. Accordingly, we decline to adopt the proposed amendments to subdivision (f)(4)(B) of rule 4-1.4 described above. We refer these proposed changes back to the Bar for further study and possible action by the Court at a later time.
CHAPTER 19
The Bar proposes a new Chapter 19, entitled "Center for Professionalism." The new rules would establish, within the administrative structure of The Florida Bar, a center to promote standards of professionalism. The proposed rules include provisions on the center's purposes, funding, staffing, and relationship to the Supreme Court Commission on Professionalism.
We applaud the Board of Governors and members of the Bar for the proposal to establish a Center for Professionalism. This proposal is responsive to the deeply felt concerns of many in the judiciary and the legal profession. It is in harmony with this Court's recent initiative in creating the Commission on Professionalism. The proposed rule appropriately contemplates coordination of efforts between the two entities. We approve the proposed rules.
OTHER SUBSTANTIVE AMENDMENTS
The other proposed amendments, which we approve, are summarized as follows. In Chapter 1 of the Rules Regulating The Florida Bar, rule 1-3.8 is changed to provide that the Florida Rules of Civil Procedure are applicable to proceedings involving inventories of attorneys' files.
In Chapter 2 (Bylaws), rule 2-3.2(d)(3) is amended to authorize Bar publications in electronic as well as print media; rule 2-3.2(d)(10) is amended to add "psychological problems" to the conditions for which programs of assistance to members are authorized; in rule 2-3.2(d), subdivisions (12) and (13) are added to authorize programs to enhance professionalism and provide information about the legal system; and, coordinating with the change to rule 2-3.2(d)(10), rule 2-9.11 is amended to provide that the program of assistance for addicted and chemically dependent members will also provide assistance to those suffering psychological problems affecting their professional performance.
In Chapter 3 (Rules of Discipline), rule 3-5.1(f) is amended to authorize permanent disbarment as a disciplinary sanction; rule 3-6.1 is amended to reorganize, clarify, and reform the terminology of the rules on the employment by law firms of suspended attorneys and disbarred and resigned former attorneys; rule 3-7.2(j), which requires notice to the Court of a member's disbarment or suspension in another jurisdiction, is amended to require the same type of notice in cases where an attorney has been the subject of a disciplinary resignation or surrender of license in another jurisdiction; rule 3-7.3 is amended to authorize Bar counsel to seek the concurrence of the grievance committee chair in the dismissal of a disciplinary matter with a letter of advice as described elsewhere in the rules; rule 3-7.6(n) is amended to change the fee charged by The Florida Bar for reproduction of documents from $1 per page to an amount to be determined annually by the Executive Director; and rule 3-7.9(e) is amended to provide that the grievance committee, staff counsel, and designated reviewer, when considering a proposed consent judgment, should decide whether to recommend revocation or restriction of a respondent's board certification.
In Chapter 4 (Rules of Professional Conduct), rule 4-1.5(f)(4)(B)(ii), providing for court approval of a fee contract where a client is unable to obtain counsel due to the restrictions imposed in the rule, is amended to change the reference to "the circuit court" to read "the court in which the matter would be filed" and to provide that if the court will not accept jurisdiction, relief may be sought in the circuit court where the cause of action arose; rule 4-1.5(f)(4)(D)(iii), on court approval of division of fees among two or more attorneys or law firms, is amended to make changes similar to those in rule 4-1.5(f)(4)(B)(ii) in referring to the courts in which relief may be sought; in paragraph 7 of the Statement of Client's Rights for Contingency Fees, advising of possible adverse consequences of losing a lawsuit, the words "costs and expenses" are added to "attorney's fees" as items the client might be required to pay to the other side; rule 4-3.4 is amended by adding new subdivisions (g) and (h), which prohibit bringing or threatening criminal or disciplinary charges solely to gain advantage in a civil matter; and rule 4-5.1 on the duties and responsibilities of partners and supervisors is amended to expand the language to refer to proprietors, shareholders, members, officers, directors, and managers of "authorized business entities" as elsewhere defined in the rules and to include within the scope of the rule supervising attorneys in business firms and government agencies.
In Chapter 6 (Legal Education and Specialization Programs), rule 6-3.5(b) and (c) on certification criteria are amended to refer to "substantial engagement" in the practice of law rather than "full-time" legal practice; and rule 6-3.5(c)(6) is amended to reorganize and clarify provisions on the peer review process and to add character, ethics, and professionalism to the criteria to be considered in evaluating certification applications.
In Chapter 7 (Clients' Security Fund), rule 7-2.3(c) is amended to state that neither a decision to pay a client's claim, nor a partial payment of a claim, shall vest in the applicant a legal right to receive payment of the claim.
In Chapter 10 (Unlicensed Practice of Law), rule 10-4.1(d) is amended to provide that circuit UPL committees can sit in panels of three, one of whom must be a nonlawyer; rule 10-7.1(c)(4), on injunctive relief proceedings before referees, is amended to allow memoranda of law instead of initial, response, and reply briefs to be filed in interlocutory review proceedings; and rules 10-7.1(d) and 10-7.2 are amended to allow memoranda of law instead of briefs in proceedings for review of referee reports on injunctive relief and contempt petitions.
In Chapter 17 (Authorized House Counsel), rule 17-1.5(a)(5) is amended to add disbarment or suspension by a court or agency of another state or by a federal court to the list of grounds for terminating authority to operate under the authorized house counsel rules.
The petition also proposes to change references to "annual dues" appearing throughout the rules to read "annual membership fees." The petition states that these changes are necessary to conform to certain requirements in the Internal Revenue Code affecting the deductibility of business expenses.
Other proposed changes are purely technical, clarifying, or corrective of terminology. For example, in rule 2-9.8, the name of the Law Office Management Advisory Service is changed to "Law Office Management Assistance Service." Rule 3-4.8 is deleted because it duplicates matter found in the Rules of Professional Conduct. There are other proposed changes of this kind that need not be discussed.
After careful consideration, we grant the petition to amend the rules except with respect to the provisions on presumptively excessive contingent fees in rule 4-1.5. We adopt the approved amendments as set forth in the appendix. New language is indicated by underscoring; deleted matter is indicated by struck-through type. These amendments shall take effect October 1, 1998.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, WELLS, ANSTEAD and PARIENTE, JJ., concur. Pages 1233-1257