Recent Notice of Proposed Florida Bar Board of Governors Actions contains important potential changes to the Florida Bar Rules

Hello everyone and welcome to this Cinco de Mayo Ethics Alert which will discuss the recent Notice of Proposed Board Actions which has some important proposed amendments to the Florida Bar Rules.  The Notice is on page 4 of the 4/30/13 Florida Bar News and also: http://www.floridabar.org/DIVCOM/JN/jnnews01.nsf/8c9f13012b96736985256aa900624829/b30ead230120050a85257b550045a451!OpenDocument

            Pursuant to its Standing Policies, the Board of Governors of The Florida Bar recently published a notice of intent to take final action on proposed changes to the Florida Bar rules at its May 31, 2013 meeting in Sarasota. The proposed changes are governed by Rule 1-12.1, Rules Regulating The Florida Bar and most amendments to the Rules Regulating The Florida Bar must be filed with the Supreme Court of Florida after the board takes final action, with further notice and opportunity to be heard, before they are officially approved and become effective.

            The proposed changes include a revision to Rule 3-5.2 which would provide a mechanism for owners of trust account funds to assert ownership over the funds, a revision to Rule 3-5.3 which would make lawyers eligible for diversion for a different type of misconduct as long as the subsequent conduct more than one year after the diversion and shortens the time between diversions from 7 to 5 years, and a revision 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 revisions in the Board Notice:

            RULE 3-5.2 EMERGENCY SUSPENSION AND INTERIM PROBATION OR INTERIM PLACEMENT ON THE INACTIVE LIST FOR INCAPACITY NOT RELATED TO MISCONDUCT
Within subdivision (c) and new subdivisions (d) and (e), and renumbered subdivisions (h) and (k), proposed rule amendments provide a mechanism 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. Remaining rule provisions are renumbered and additional non-substantive changes are made to conform to the Supreme Court style guide.

           RULE 3-5.3 DIVERSION OF DISCIPLINARY CASES TO PRACTICE AND PROFESSIONALISM ENHANCEMENT PROGRAMS

            Within subdivision (c) and the comment, the proposed change allows bar members who have received a diversion to be eligible for a diversion for a different type of conduct, for which a diversion program exists, as long as the subsequent conduct occurred one year or more after the first diversion. Within subdivision (c) the proposed amendment also shortens the period between diversions for the same type of conduct from 7 years to 5 years.

            RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES

            Within Rule 4-1.5(f)(4), adds new subdivision (E) that the 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 of the client under the fee contract, that the lawyer 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, that 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 that 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. Within comment, explains what lien resolution services are required as part of the original fee contract and what extraordinary services entail.

            Bottom line:  The proposed Bar rule changes would clarify the right to trust funds when a lawyer is suspended on an emergency basis, broaden the eligibility of lawyers to receive a diversion, and clarify a lawyer’s duty to resolve liens in personal injury and wrongful death matters.  The proposed rule changes will be considered for final action by the Board of Governors at its May 31, 2013 meeting in Sarasota.  If approved, 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 eto@flabar.org.

            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

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

jcorsmeier@jac-law.com

www.jac-law.com

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About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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