Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida implementing, inter alia, significant revisions to the trust account, confidentiality, diversion, and reinstatement rules. The opinion is In Re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), No. SC14-2088 (June 11, 2015) and is online here: https://www.floridasupremecourt.org/decisions/2015/sc14-2088.pdf. The amendments will become effective on October 1, 2015, at 12:01 a.m.
The opinion revises Bar Rule 3-5.3(c) to state as follows: “a respondent who has been the subject of a prior diversion is not eligible for diversion for the same type of rule violation for a period of 5 years after the earlier diversion. However, a respondent who has been the subject of a prior diversion and then is alleged to have violated a completely different type of rule at least 1 year after the initial diversion, will be eligible for a practice and professionalism enhancement program.” This rule change will reduce the period of ineligibility for a diversion from 7 to 5 years and permit a lawyer to receive more than one diversion in a 5 year period if the Bar rule allegations are not the same.
The opinion also revises Bar Rule 3-7.10(b)(1) to permit a suspended lawyer to file a petition for reinstatement after completion of at least 80% of the term of the period of suspension. The opinion also revised Bar rule 4-1.6(c)(6) to permit a lawyer to obtain or provide confidential information “to detect and resolve conflicts of interest between lawyers in different firms arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.” This creates a new exception to the application of the confidentiality rule.
The opinion adds Bar Rule 4-1.6(e) which states that “(a) lawyer must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” This puts the burden on the sending lawyer to make reasonable efforts to prevent inadvertent/unauthorized disclosure of confidential information.
The opinion revises Bar Rule 5-1.1(a)(1)(B) to permit a lawyer to deposit “the lawyer’s own funds into trust to replenish a shortage in the lawyer’s trust account. Any deposits by the lawyer to cover trust account shortages must be no more than the amount of the trust account shortage, but may be less than the amount of the shortage. The lawyer must notify the bar’s lawyer regulation department immediately of the shortage in the lawyer’s trust account, the cause of the shortage, and the amount of the replenishment of the trust account by the lawyer.” This revision specifically permits a lawyer to replenish funds into the trust account when there is a shortage without violating the prohibition against commingling.
Bottom line: Many of these Bar rule revisions are a result of recommendations made by the 2011-2012 Florida Bar Commission on Review of the Grievance System in its 2012 Report. The Commission was appointed by then Bar President Scott Hawkins and the undersigned was a member.
As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship 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.
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Clearwater, Florida 33759
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