Hello everyone and welcome to this Ethics Alert which is an update to my previous Ethics Alert and will discuss the recent final action of the Board of Governors of The Florida Bar on some important proposed revisions to the Florida Bar Rules. The previous Bar notice which provides a summary of all of the proposed rule revisions is at: https://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/b30ead230120050a85257b550045a451!OpenDocument
The Florida Bar’s Board of Governors met on May 31, 2013 in Sarasota and took final action on proposed changes to The Florida Bar Rules. The proposed Florida Bar rule revisions are governed by Rule 1-12.1, Rules Regulating The Florida. The Florida Bar will now provide further notice and an opportunity to be heard on the proposed rules, which will then be filed with the Supreme Court of Florida for review and potential implementation.
The proposed rule revisions include a change to Rule 3-5.2 providing a procedure for owners of trust account funds to assert ownership over the funds; a change to Rule 3-5.3 making lawyers eligible for diversion for a different type of misconduct as long as the subsequent conduct occurred more than one year after the diversion, and shortens the time between diversions from 7 to 5 years; and a change to Rule 4-1.5(f)(4) which would, inter alia, require a lawyer in a personal injury or wrongful death case charging a contingent fee to provide ordinary lien resolution as part of the lawyer’s representation of the client under the fee contract.
The following are summaries of the above proposed rule revisions:
RULE 3-5.2 EMERGENCY SUSPENSION AND INTERIM PROBATION OR INTERIM PLACEMENT ON THE INACTIVE LIST FOR INCAPACITY NOT RELATED TO MISCONDUCT
The proposed revision to Rule 3-5.2 would provide, within current subdivision (c) and new subdivisions (d) and (e), and renumbered subdivisions (h) and (k), a procedure for owners of funds in a lawyer’s frozen trust account to assert claims of ownership on these funds as part of the Bar’s referee procedures in suspension and emergency suspension cases through a referee or receiver. The remaining rule provisions would be renumbered and some additional non-substantive changes would be made to conform to the Supreme Court style guide.
RULE 3-5.3 DIVERSION OF DISCIPLINARY CASES TO PRACTICE AND PROFESSIONALISM ENHANCEMENT PROGRAMS
The proposed revision to Rule 3-5.3(c) and the comment would provide that lawyers who have received a prior diversion would be eligible for another diversion for a different type of conduct (for which a diversion program exists) as long as the new conduct occurred one (1) year or more after the first diversion. The proposed revision also would shorten the period between diversions for the same type of conduct from seven (7) to five (5) years.
RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES
The proposed revision would add new subdivision (E) to Rule 4-1.5(f)(4) which states that:
1. a lawyer in a personal injury or wrongful death case charging a contingent fee must provide ordinary lien resolution as part of the lawyer’s representation under the fee contract may not charge any additional fee to the client for providing such services, if all fees for the personal injury matter plus lien resolution exceed the contingent fee schedule;
2. extraordinary services for subrogation and lien resolution may be referred to another only with the client’s informed consent, that additional fees by the other lawyer must comply with all provisions of the fee rule and,
3. the lawyer providing the extraordinary subrogation and lien resolution services may not divide fees with the lawyer handling the personal injury or wrongful death claim. The comment explains what lien resolution services are required as part of the original fee contract and what extraordinary services include.
Bottom line: As I indicated in my previous Alert, the proposed Bar rule changes would create a way for owners of trust funds to assert that ownership when a lawyer is suspended on an emergency basis, expand the eligibility of lawyers to receive a diversion (and reduce the time between diversions from 7 to 5 years), and clarify a lawyer’s duty to resolve liens in personal injury and wrongful death matters. The rule changes will most likely be included in the next annual Bar rule revision petition filed by The Florida Bar in the fall. If you want a full copy of the text of any of the proposed amendments, you can email the Bar Ethics Department at [email protected]
Be careful out there!
Disclaimer: this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670