Hello and welcome to this JACPA Ethics Alert blog which will discuss additional rule changes implemented (and not implemented) by the Supreme Court of Florida in its recent opinion dated April 12, 2012. I previously discussed amendments to the Bar Rules related to trust accounts and reporting misconduct in mediation in my April 18, 2012 Ethics Alert. The rule amendments will become effective 7/1/12. A corrected opinion dated 4/13/12 was issued correcting the effective date only. The opinion is again attached.
The opinion confirmed the Florida Supreme Court’s position that attorneys who represent clients under contingency fee contracts are responsible for negotiating medical liens and subrogation claims that are related to the representation. The opinion also rejected an amendment allowing out-of-state lawyers to temporarily handle pro bono cases in Florida following a major disaster and also addressed retiring attorneys, publication of official notices, a requirement that lawyers who have business e-mail addresses report them to the Bar, permanent revocation, and requirements for suspended lawyers who seek reinstatement to active status after being suspended for 3 years or more.
The proposed medical lien rule amendment to Rule 4-1.5 (Fees and Costs for Legal Services) was proposed after a study by the Bar’s Board of Governors (BOG) in response to a question proposed by the Professional Ethics Committee as to whether an attorney working under a contingency fee contract could refer medical liens and related issues to a second law firm. That law firm would have been paid under a reverse contingency fee agreement which, if it was in addition to the original contingency, would increase the total fee paid by the client beyond the maximum contingency fee permitted by the Bar rules.
The BOG (and the Bar in its petition) proposed the addition of subdivision (f)(4)(E) to Rule 4-1.5 to authorizing the retention of the second law firm if the client was fully advised and provides informed consent. The opinion rejected the amendment and stated: “(w)e decline to adopt new subdivision (f)(4)(E). Indeed, we take this opportunity to clarify that lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case.” (emphasis supplied).
The opinion also rejected proposed new Rule 1-3.12 which would have permitted lawyers from other jurisdictions to have a limited practice in Florida following a major disaster and a revision to Rule 4-5.5 (multijurisdictional practice) to conform with the proposed new rule. According to the opinion, “(b)ecause we have concerns about how this rule (1-3.12) would apply, we decline to adopt it.” The opinion rejected the related changes to Rule 4-5.5; however, other revisions to Rule 4-5.5 were approved.
The opinion also modified a rule revision to allow notice of proposed action by the Board of Governors on a Bar rule to be published in either The Florida Bar News or on the Bar’s website. The current rule requires publication in the News but does not address notice on the website. The opinion required that such notices be published in both venues. Chief Justice Charles Canady dissented and said he would approve the rule as presented by the Bar. Justice Pariente noted that the new rule would create different notice requirements for Bar rules and court procedural rules, which will continue to be published in full in the News. Justice Pariente stated: “I encourage the Bar to look at this issue again, in conjunction with procedures for other rule amendments, and consider an alternative proposal that would address the issue of notice but also allow for increased use of the Internet.”
The opinion approved an amendment to Rule 1-3.3, which will now require lawyers to provide a “business email address, if the member has one.” The opinion also approved an option for a lawyer permanently retire but rejected the Bar’s proposed amendment which would have allowed such retired members to seek readmission by applying to the Florida Board of Bar Examiners. “(W)e have modified the Bar’s proposal to make clear that any member granted permanent retirement is thereafter ineligible to seek reinstatement or readmission to the Bar.” (emphasis supplied).
The opinion also approved rule revisions which increase the requirements and conditions for lawyers who have been suspended for extended periods before seeking reinstatement. Lawyers who have been suspended for three years or longer will be required to demonstrate they are current with changes in the law, including at least 10 hours of CLE courses for each year they were suspended. Lawyers who have been suspended for five years or longer will be required to meet the education requirement and also retake the bar exam and the Multistate Professional Responsibility Examination.
In addition, the opinion approved rule revisions which eliminate the option for lawyers who are under disciplinary investigation to agree to a “disbarment on consent”. Under the revised rules, lawyers who wish to pursue a “disciplinary revocation” must file a petition the Supreme Court which “shall contain a statement of all past and pending disciplinary actions and criminal proceedings against the petitioner.” If accepted, “(l)ike disbarment, disciplinary revocation terminates the respondent’s license and privilege to practice law and requires readmission to practice under the Rules of the Supreme Court Relating to Admissions to the Bar.
The opinion approved revisions to the fee arbitration rules clarifying that, in order for a claim to qualify for the Bar’s fee arbitration program, there must be no other dispute between the attorney and client other than over fees and the disputed fees may not exceed $100,000.00.
Finally, the opinion approved rule revisions stating that a person may not become a Florida Registered Paralegal or renew as a Florida Registered Paralegal if that person is the subject of a pending Bar UPL investigation and any person found to have engaged in UPL in any state would be prohibited from becoming an FRP for seven years.
Bottom line: It appears a very significant part of this opinion is the Court’s rejection of a rule amendment which would have permitted lawyers to retain outside counsel to negotiate third party liens and subrogation claims in contingency matters (primarily personal injury and wrongful death) and the opinion’s unequivocal pronouncement that “lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case.”
Be careful out there!
| 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.
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