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The Florida Bar’s Board of Governors considers significant trust account rule revisions related to commingling and eliminating compliance box on dues statement

Hello and welcome to this Ethics Alert blog which will discuss the recent review by the Florida Bar’s Board of Governors (BOG) of proposed revisions to the Trust Account Rules Regulating The Florida Bar, including commingling and the trust account check box in the annual dues statement. An article discussing these proposals is in the March 1, 2014 issue of Florida Bar News which is on the Bar’s website here: 3/1/14 Bar News Trust Account article
According to the article, the BOG met on January 31, 2014 and received information regarding a revision to Rule 5-1.2(c) proposed by Board’s Disciplinary Procedure Committee which would remove the check box verifying that that a lawyer’s trust account is in compliance with Bar rules from the annual membership renewal. The BOG also received information regarding a proposed revision to Rule 5-1.1 to allow a lawyer to replace funds missing from a trust account using his or her own funds without violating the trust account provisions which prohibit the commingling of funds; however, the lawyer would be required to report the shortage to The Florida Bar. The BOG is scheduled to meet and vote on both proposed revisions at its March 28, 2014 meeting.

The BOG Disciplinary Procedure Committee chair advised that the trust account compliance checkbox on the annual dues and renewal statement was creating a disparity in prosecuting minor trust account violations, that the rule is ignored/violated by a significant minority of Bar members, and that there have been no prosecutions for those violations.

Bar Counsel has taken the position that if a lawyer checked the box certifying compliance with trust accounting rules and was not in compliance, he or she would not qualify for diversion to the trust accounting school and dismissal of the complaint in discipline cases involving minor trust account violations. The reasoning is that a lawyer who checks the box and is not in compliance has made a material misrepresentation; therefore, diversion is available under the Bar rules. In the alternative, if a lawyer does not check the box at all, there is no material misrepresentation and the lawyer would potentially be eligible for diversion even though this is a failure to comply with the compliance certification requirement.

Bottom line: If approved by the BOG and implemented by the Florida Supreme Court, these rule revisions would change the trust account rules to eliminate the trust account check box in the annual dues statement; however, a lawyer would be required to affirmatively report trust account shortages to The Florida Bar. The proposed rule revisions would also permit a lawyer to replace shortages in his or her trust account without violating the rule prohibiting commingling. As always, if you would like to voice your opinion regarding these proposed Bar rule changes, you can contact the BOG member in your area or contact the Bar’s BOG liaison.

Be careful out there!

Disclaimer: this e-mail is not an advertisement and is for informational purposes only. It 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
[email protected]

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