In Re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition)
SC16-1961
| Fla. | Nov 9, 2017Background
- The Florida Bar filed its biennial petition proposing new and amended Rules Regulating the Florida Bar; the Court has jurisdiction under Art. V, § 15, Fla. Const.
- The Bar published notice, solicited comments; the Court received two comments and the Bar responded. After consideration the Court adopted most proposals with modifications and set an effective date of Feb. 1, 2018.
- Major adopted changes include: expanded emeritus (pro bono) eligibility and related Chapter 12 rules; allowing certain trust accounts at federally insured credit unions; creation of an inactive board‑certified status and new subchapter for Board Certification in International Litigation and Arbitration; expanded foreign legal consultant and authorized house‑counsel rules.
- The Court substantially revised the Bar’s time limit rule for opening investigations (Rule 3‑7.16), clarifying 6‑year discovery toll, 1‑year reopenings, and deferral rules; also added a definition of “inquiry.”
- The Court declined to adopt the Bar’s proposed amendments to Rule 4‑7.14 (restrictions on using terms like “specialist” or “expert”) and referred that issue back to The Florida Bar for further study, citing concerns about vagueness and inconsistent application.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to adopt the Bar’s package of rule amendments | Bar: amendments improve access to justice, clarify procedures, and modernize rules (e.g., emeritus lawyers, IOTA, foreign consultants) | Commenters: raised concerns on specific provisions (e.g., advertising, technical language); Bar responded and revised some language | Court adopted most proposed amendments with targeted modifications and technical edits |
| Whether to amend Rule 4‑7.14 to permit non‑certified lawyers to call themselves "specialist"/"expert" under specified criteria | Bar: proposed criteria (including an experience‑comparable clause) would address the district court’s constitutional concerns while protecting the public | Commenters (and Court): the "reasonably comparable" standard is vague and could produce inconsistent results; inadequate to address First Amendment issues | Court declined to adopt the Bar’s amendments to Rule 4‑7.14 and referred the matter back to The Florida Bar for further study |
| Whether to change time limits for initiating disciplinary investigations (Rule 3‑7.16) | Bar: clarify and modernize limitation rules (6‑year discovery rule; 1‑year reopenings; deferral exceptions) | No substantial opposing position reported; commenters supported clarity and addition of "inquiry" definition | Court adopted revised rule: written inquiry/Bar must open investigation within 6 years of discovery; reopen within 1 year; timely deferred investigations preserved with 1‑year filing after conclusion of related proceedings |
| Whether to expand emeritus pro bono program and related eligibility (Chapter 12) | Bar/Commission on Access to Civil Justice: expand pool (inactive/retired members, former judges, law professors, authorized house counsel) to increase supervised pro bono capacity | Concerns limited to ensuring supervision and client protections; Court retained disclosure and supervision requirements | Court adopted expanded Emeritus Lawyers Pro Bono Participation Program with certification and supervision rules; retained client‑protection disclosures and discipline provisions |
Key Cases Cited
- Arnold, Matheny & Eagan, P.A. v. First American Holdings, Inc., 982 So.2d 628 (Fla. 2008) (trust accounts may be proper target of garnishment)
- Donahue v. Vaughn, 721 So.2d 356 (Fla. 5th DCA 1998) (ownership of client files addressed)
- Dowda & Fields, P.A. v. Cobb, 452 So.2d 1140 (Fla. 5th DCA 1984) (law firm file ownership principles)
- The Florida Bar v. Silver, 788 So.2d 958 (Fla. 2001) (duties relating to funds assigned to health providers)
- The Florida Bar v. Krasnove, 697 So.2d 1208 (Fla. 1997) (trust account obligations and health‑care payments)
- The Florida Bar v. Neely, 587 So.2d 465 (Fla. 1991) (discipline involving trust account and escrow duties)
- Harold Goldberg v. Merrill Lynch Credit Corp., 35 So.3d 905 (Fla. 2010) (circumstances for issuing advisory opinions when related litigation is stayed or dismissed)