Opinion
No. SC16–1962
11-09-2017
IN RE: AMENDMENTS TO the RULES REGULATING THE FLORIDA BAR (Biennial Petition Housekeeping).
PER CURIAM.
This matter is before the Court on the petition of The Florida Bar proposing amendments to the Rules Regulating the Florida Bar (Bar Rules). See R. Regulating Fla. Bar 1-12.1. We have jurisdiction. See art. V, § 15, Fla. Const.
The Bar's petition in this case proposes amendments to a number of Bar Rules. According to the petition, the proposals included here address "housekeeping" matters, in that the petition primarily recommends editorial changes, updates to the Bar Rules based on prior amendments, and other changes to codify long-standing practice. The proposals were approved by the Board of Governors, 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 did not receive any comments.
The Bar proposes amendments to the following Bar Rules: 1-3.7 (Reinstatement to Membership); 3-3.1 (Supreme Court of Florida; disciplinary agencies); 3-3.2 (Board of Governors of The Florida Bar); 3-3.4 (Grievance Committees); 3-3.5 (Circuit court jurisdiction); 3-4.3 (Misconduct and minor misconduct); 3-4.4 (Criminal misconduct); 3-4.6 (Discipline by Foreign or Federal Jurisdiction; Choice of Law); 3-4.7 (Oath); 3-5.4 (Publication of Discipline); 3-7.17 (Vexatious Conduct and Limitation on Filings); 4-1.5 (Fees and Costs for Legal Services); 4-8.3 (Reporting Professional Misconduct); 6-10.1 (Continuing legal education requirement); 6-10.4 (Reporting Requirements); 6-10.7 (Confidentiality); 8-2.2 (Contents of Application); 8-5.1 (Generally); 10-5.1 (Complaint processing); 11-1.7 (Supervision); 11-1.10 (Certification of Members of Out-of-State Bars); and 13-1.2 (Definitions). It also proposes amendments to Bar Bylaws 2-3.10 (Meetings) and 2-9.8 (Law office management assistance service). After fully considering the petition, the Court adopts these "housekeeping" amendments as proposed by the Bar.
The Court made several non-substantive revisions to the Bar proposals for Bylaw 2-3.10 (Meetings), Bar Rule 3-4.4 (Criminal misconduct), and Bar Rule 6-10.7 (Confidentiality) to correct what appeared to be scrivener's errors in those proposals.
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Accordingly, the Court adopts the amendments to 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.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.
APPENDIX
RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP
(a) — (f) [No change]
(g) Inactive Members. Inactive members may be reinstated to active membership in good standing to become eligible to practice law in Florida by petition filed with the executive director, in the form and as provided in (b) above, except:
(1) — (3) [No change]
BYLAW 2-3.10 MEETINGS
The board of governors shall will hold 6 regular meetings each year, at least 1 of which shall will be held at The Florida Bar Center in Tallahassee. Subject to the approval of the board of governors, the places and times of such meetings shall be determined by the The president-elect selects the places and times of the meetings to be held during the president-elect's term as president, who may make such designation while president-elect subject to the approval of the board of governors. Special meetings shall will be held at the direction of the executive committee or the board of governors. Any member of The Florida Bar in good standing may attend meetings at any time except during such times as the when the board shall be is in executive session concerning disciplinary matters, personnel matters, member objections to legislative positions of The Florida Bar, or receiving attorney-client advice. Minutes of all meetings shall will be kept by the executive director.
BYLAW 2-9.8 LAW OFFICE MANAGEMENT ASSISTANCE SERVICEPRACTICE RESOURCE INSTITUTE
The board of governors hereby creates the law office management assistance service Practice Resource Institute and shall will adopt standing board policies, as provided in bylaw 2-9.2, that shall govern the operation of the service institute.
RULE 3-3.1 SUPREME COURT OF FLORIDA; DISCIPLINARY AGENCIES
The exclusive jurisdiction of the Supreme Court of Florida over the discipline of persons admitted to the practice of law shall will be administered in the following manner subject to the supervision and review of the court. The following entities are hereby designated as agencies of the Supreme Court of Florida for this purpose and with the following responsibilities, jurisdiction, and powers. The board of governors, grievance committees, and referees shall have such the jurisdiction and powers as are necessary to conduct the proper and speedy disposition of any investigation or cause, including the power to compel the attendance of witnesses, to take or cause to be taken the deposition of witnesses, and to order the production of books, records, or other documentary evidence. Each member of such these agencies has the power to administer oaths and affirmations to witnesses in any matter within the jurisdiction of the agency.
RULE 3-3.2 BOARD OF GOVERNORS OF THE FLORIDA BAR
(a) Responsibility of Board. The board is assigned the responsibility of maintaining high ethical standards among the members of The Florida Bar. The board shallwill supervise and conduct disciplinary proceedings in accordance with the provisions of these rules.
(b) Authority to File a Formal Complaint. No formal complaint shallmay be filed by The Florida Bar in disciplinary proceedings against a member of the bar unless 1 of the following conditions has been met:
(1) — (4) [No change]
(5) Felony Charges. A formal complaint may be filed if a member has been charged with commission of a felony under applicable law that warrants the imposition of discipline and if the chair of the grievance committee agrees. A decision of the grievance committee chair to not file a formal complaintshallmust be reviewed by the full grievance committee. The grievance committee may affirm or reverse the decision.
(6) [No change]
(c) [No change]
RULE 3-3.4 GRIEVANCE COMMITTEES
There shall be such The board will appoint grievance committees as are herein provided , in this rule. E each of which shall have grievance committee has the authority and jurisdiction required to perform the functions hereinafter assigned to it, and which shall be constituted and appointed are as follows:
(a) Circuit Grievance Committees. There shall be The board will appoint at least 1 grievance committee for each judicial circuit of this state and as many more as shall be found desirable by the board chooses. Such These committees shall will be designated as judicial circuit grievance committees, and in circuits having more than 1 committee they shall will be identified by alphabetical designation in the order of creation. Such These committees shall will be continuing bodies notwithstanding changes in membership, and they shall will have jurisdiction and the power to proceed in all matters properly before them.
(b) Special Grievance Committees. The board may from time to time appoint grievance committees for the purpose of such investigations or specific tasks as may be assigned in accordance with these rules. Such These committees shall will continue only until the completion of tasks assigned, and they shall will have jurisdiction and power to proceed in all matters so assigned to them. All provisions concerning grievance committees shall be applicable apply to special grievance committees except those concerning terms of office and other restrictions thereon as may be imposed by the board. Any vacancies occurring in such a committee shall will be filled by the board, and such any changes in members shall will not affect the jurisdiction and power of the committee to proceed in all matters properly before it. (c) Membership, Appointment, and Eligibility. Each grievance committee shall will be appointed by the board and shall must consist of not fewer thanhave at least 3 members. At least one-third of the committee members shall must be nonlawyers. All appointees shall must be of legal age and, except for special grievance committees, shall must be residents of the circuit or have their principal office in the circuit. The lawyer members of the committee shall must have been members of The Florida Bar for at least 5 years.
No A member of a grievance committee shall must not perform any grievance committee function when that member:
(1) — (4) [No change]
Upon On notice of the above prohibitions, the affected members should recuse themselves from further proceedings. The grievance committee chair shall have has the power to disqualify any member from any proceeding in which any of the above prohibitions exist and are stated orally of on the record or memorialized in writing in the file by the chair.
(d) Terms. The terms of the members shall be are for 1 year from the date of administration of the oath of service on the grievance committee or until such time as their successors are appointed and qualified. Continuous service of a member shall may not exceed 3 years. A member shall may not be reappointed for a period of 3 years after the end of the member's term; provided, however but, the expiration of the term of any a member's term of service shall does not disqualify such the member from concluding any investigation or participating in disposition of cases that were pending before the committee when the member's term expired. A member who continues to serve on the grievance committee under the authority of this subdivision shall is not be counted as a member of the committee when calculating the minimum number of public members required by this rule.
(e) Officers. There shall be designated reviewer of the committee will designate a chair and vice-chair who designated by the designated reviewer of that committee, The chair and vice chair shall must be members of The Florida Bar.
(f) Oath. Each new member of a committee shall must subscribe to an oath to fulfill the duties of the office. Such These oaths shall will be filed with the executive director and placed with the official records of The Florida Bar.
(g) Removal. The designated reviewer of a grievance committee or the board of governors may remove A any member of a grievance committee may be removed from office, by the designated reviewer of that committee or the board.
(h) Grievance Committee Meetings. Grievance committees should meet at regularly scheduled times, not less frequently than quarterly each year at least once every 3 months, and either the chair or vice-chair may call special meetings. Grievance committees should meet at least monthly during any period when the committee has 1 or more pending cases assigned for investigation and report. The time, date, and place of regular monthly meetings should be set in advance by agreement between the committee and chief branch discipline counsel.
RULE 3-3.5 CIRCUIT COURT JURISDICTION
The jurisdiction of the circuit courts shall be is concurrent with that of The Florida Bar under these Rules of Discipline. The forum first asserting jurisdiction in a disciplinary matter shall retain s the same jurisdiction to the exclusion of the other forum until the final determination of the cause. RULE 3-4.3 MISCONDUCT AND MINOR MISCONDUCT
The standards of professional conduct to be observed by required of members of the bar are not limited to the observance of rules and avoidance of prohibited acts, and the enumeration herein of certain categories of misconduct as constituting grounds for discipline shall are not be deemed to be all-inclusive, nor shall is the failure to specify any particular act of misconduct to be construed as tolerance thereof of such an act of misconduct. The commission by a lawyer of any act that is unlawful or contrary to honesty and justice, may constitute a cause for discipline whether the act is committed in the course of the attorney's lawyer's relations as an attorney lawyer or otherwise, whether committed within Florida or outside the state of Florida, and whether or not the act is a felony or a misdemeanor . , may constitute a cause for discipline.
RULE 3-4.4 CRIMINAL MISCONDUCT
Unless modified or stayed by the Supreme Court of Florida as provided elsewhere herein, a A determination or judgment of guilt of a member of The Florida Bar by a court of competent jurisdiction that a member of The Florida Bar is guilty of any crime or offense that is a felony under the laws of such that court's jurisdiction is cause for automatic suspension from the practice of law in Florida., unless the judgment or order is modified or stayed by the Supreme Court of Florida, as provided in these rules. In addition, whether the alleged misconduct constitutes a felony or misdemeanor The Florida Bar may initiate disciplinary action regardless of whether the respondent has been tried, acquitted, or convicted in a court for the an alleged criminal misdemeanor or felony offense, however, the The board may, in its discretion, withhold prosecution of disciplinary proceedings pending the outcome of criminal proceedings against the respondent. The acquittal of the respondent If a respondent is acquitted in a criminal proceeding that acquittal shall is not necessarily be a bar to disciplinary proceedings. Likewise, nor shall the findings, judgment, or decree of any court in civil proceedings is not necessarily be binding in disciplinary proceedings.
RULE 3-4.6 DISCIPLINE BY FOREIGN OR FEDERAL JURISDICTION; CHOICE OF LAW
(a) (a) Disciplinary Authority. An attorney lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the attorney's lawyer's conduct occurs. An attorney lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct. A final adjudication in a disciplinary proceeding by a court or other authorized disciplinary agency of another jurisdiction, state or federal, that an attorney lawyer licensed to practice in that jurisdiction is guilty of misconduct justifying disciplinary action shall will be considered as conclusive proof of such the misconduct in a disciplinary proceeding under this rule.
(b) (b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be are as follows:
(1) [No change]
(2) for any other conduct, the rules of the jurisdiction in which theattorney'slawyer's conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdictionshallwill be applied to the conduct.
RULE 3-4.7 OATH
Violation of the oath taken by an attorney lawyer to support the constitutions of the United States and the State of Florida is ground for disciplinary action. Membership in, alliance with, or support of any organization, group, or party advocating or dedicated to the overthrow of the government by violence or by any means in violation of the Constitution of the United States or constitution of this state shall be is a violation of the oath.
RULE 3-5.4 PUBLICATION OF DISCIPLINE
(a) [No change]
(b) Disclosure on Inquiry. All public disciplinary sanctions shall will be disclosed upon inquiry.
(c) [No change]
(d) Limited Exception for Admonishments Issued by the Supreme Court of Florida. All admonishments issued by the court containing the heading "Not to be Published" shall will not be published in the official court reporter and shall will not be published in The Florida Bar The Florida Bar News.
"Not to be Published" does not have the same meaning as "confidential." The Florida Bar may post information regarding specific orders of admonishment on the Bar's bar's website. Further, the The Florida Bar may provide information regarding an admonishment upon inquiry.
COMMENT
All disciplinary sanctions as defined in rules 3-5.1 and 3-5.2, or their predecessors, entered in cases opened on or after March 17, 1990 are public information. Therefore, an inquiry into the conduct of a member of the bar will result in a disclosure of all such these sanctions.
The public policy of this state is to provide reasonable means of access to public information. In furtherance of this policy, this rule is enacted so that all persons may understand what public information concerning lawyer disciplinary sanctions is available and in what format. This rule does not alter current court procedure or other requirements.
Admonishments are issued for minor misconduct and are the lowest form of disciplinary sanction. An admonishment is often issued for technical rule violations or for rule violations that did not result in harm. The court's orders imposing admonishments contain the heading "Not to be Published" and this rule directs that those admonishments not be published in Southern Reporter and directs The Florida Bar not to publish those admonishments in its newspaper, The Florida Bar News. The court does so in order to maintain a tangible difference between the sanctions of admonishment and public reprimand.
This rule does not bar disclosure of admonishments upon in response to an inquiry, whether written, oral, or electronic, and does not bar publication of admonishments on any website of The Florida Bar.
RULE 3-7.17 VEXATIOUS CONDUCT AND LIMITATION ON FILINGS
(a) Definition. Vexatious conduct is conduct that amounts to abuse of the bar disciplinary process by use of inappropriate, repetitive, or frivolous actions or communications of any kind directed at or concerning any participant or agency in the bar disciplinary process, including such as the complainant, the respondent, a grievance committee member, the grievance committee, the bar, the referee, or the Supreme Court of Florida, or an agent, servant, employee, or representative of these individuals or agencies. (b) Authority of the Court. Only t The Supreme Court of Florida has the sole authority to enter an order under the provisions of this rule.
(c) Procedure.
(1) Commencement. Proceedings under this rule may be commenced on the court's own motion, by a report and recommendation of the referee, or a petition of The Florida Bar, acting for itself, the grievance committees or their members, authorized by its executive committee and signed by its executive director, demonstrating that an individual has abused the disciplinary process by engaging in vexatious conduct. The court may enter an order directing the individual(s)engaging in the vexatious conduct to show good cause why the court should not enter an order prohibiting continuation of the conduct and/or imposing limitations on future conduct.
(2) Order To Show Cause. The court, acting on its own motion, or on the recommendation of the referee or petition of the bar, may enter an order directing an individual to show cause why the court should not enter an order prohibiting continuation of the vexatious conduct and/or imposing limitations on future conduct. A copy of the ordershallwill be served on the referee, (if one has been appointed), the respondent, and The Florida Bar.
(3) Response to Order to Show Cause. The individual(s)alleged to have engaged in vexatious conductshall havehas 15 days from service of the order to show cause, or such other time as the court may allow, in which to file a response. Failure to file a response in the time provided, without good cause,shall beis deemed a default and the court may, without further proceedings, enter an order prohibiting or limiting future communications or filings as set forth in this rule, or imposing any other sanction(s) that the court is authorized to impose. A copy of any responseshallmustbe served on a referee, (if one hasbeen appointed), the respondent, and The Florida Bar.
(4) Reply. The referee, (if one has been appointed), the respondent, and The Florida Barshallhave 10 days from the filing of a response to an order to show cause entered under this rule in which to file a reply. Failure to file a reply in the time provided, without good cause, shallprohibit s a reply.
(5) Referral to Referee. The court may refer proceedings under this rule to a referee for taking testimony and receipt of evidence. Proceedings before a referee under this subdivisionshallwill be conducted in the same manner as proceedings before a referee as set forth in rule 3-7.6 of these rules.
(d) Court Order. [No change]
(e) Violation of Order. Violation of an order issued under this rule shall will be considered as a matter of contempt and processed as provided elsewhere in these Rules Regulating The Florida Bar.
COMMENT
This rule is enacted to address circumstances involving repetitive conduct of the type that goes beyond conduct that is merely contentious and unsuccessful. This rule addresses conduct that negatively affects the finite resources of our court system, resources that which must be reserved for resolution of genuine disputes. As recognized by the United States Supreme Court, "every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution's limited resources. A part of the court's responsibility is to see that these resources are allocated in a way that promotes the interests of justice." In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989).
This concept has also been recognized in bar disciplinary proceedings by the Supreme Court of Florida when the court stated: "Kandekore's actions create a drain on the Court's limited time, for with each filing the Court has, as it must, reviewed and considered repetitious and meritless arguments. Therefore, we conclude that a limitation on Kandekore's ability to file repeated challenges to his long-final sanctions would further the constitutional right of access because it would permit this Court to devote its finite resources to the consideration of legitimate claims filed by others." The Florida Bar ex rel. — Kandekore, 932 So.2d 1005, 1006 (Fla. 2006). Kandekore engaged in vexatious conduct after the court entered an order of disbarment.
The Supreme Court of Florida has also limited the ability of a lawyer to file further pleadings while that lawyer's disciplinary case(s) were in active litigation. The Florida Bar v. Thompson, 979 So.2d 917 (Fla. 2008).
RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES
(a) — (e) [No change]
(f) Contingent Fees. As to contingent fees:
(1) — (3) [No change]
(4) A lawyer who enters into an arrangement for, charges, or collects any fee in an action or claim for personal injury or for property damages or for death or loss of services resulting from personal injuries based upon tortious conduct of another, including products liability claims, whereby the compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only under the following requirements:
(A) [No change]
(B) The contract for representation of a client in a matter set forth in subdivision (f)(4) may provide for a contingent fee arrangement as agreed upon by the client and the lawyer, except as limited by the following provisions:
(i) [No change]
(ii) If any client is unable to obtainan attorneya lawyer of the client's choice because of the limitations set forth in subdivision (f)(4)(B)(i), the client may petition the court in which the matter would be filed, if litigation is necessary, or ifsuchthat court will not accept jurisdiction for the feedivisionapproval, the circuit courtwhereinin which the cause of action arose, for approval of any fee contract between the client andan attorneya lawyer of the client's choosing.Such authorization shal lAuthorization will be given if the court determines the client has a complete understanding of the client's rights and the terms of the proposed contract. The application for authorization ofsuch athe contract can be filed as a separate proceeding before suit or simultaneously with the filing of a complaint. Proceedingsthereonon the petition may occur before service on the defendant and this aspect of the file may be sealed. A petition under this subdivisionshallmust contain a certificate showing service on the client and, if the petition is denied, a copy of the petition and order denying the petitionshallmust be served on The Florida Bar in Tallahassee by the member of the bar who filed the petition. Authorization of such a
contractshalldoes not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive under subdivisions (a) and (b).
(iii) Subject to the provisions of 4-1.5(f)(4)(B)(i) and (ii) a lawyer who enters into an arrangement for, charges, or collects any fee in an action or claim for medical liability whereby the compensation is dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall provide the language of article I, section 26 of the Florida Constitution to the client in writing and shall orally inform the client that:
a. - c. [No change]
LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.