Florida Bar will file petition with Florida Supreme Court with revisions to Rule 4-1.8(c) to prohibit soliciting any gifts from client to lawyer

Hello and welcome to this corrected Ethics Alert which will discuss the proposed revision to Florida Bar Rule 4-1.8(c), which would prohibit a lawyer from soliciting any gift from a client.  The BOG approved the rule amendments and the Bar will file an Omnibus Rules Petition with the proposed rule amendment with the Florida Supreme Court on October 15, 2016 (along with other proposed rule amendments).  The new Rule 4-1.8(c) language is below with new language underlined and proposed rule revisions are here:  2016 Annual Florida Bar Rules Proposals.

Current Florida Bar Rule 4-1.8(c) prohibits lawyers from soliciting or accepting a “substantial” gift from a client or preparing a testamentary instrument giving the lawyer or a person related to the lawyer a substantial gift; however, one of the issues which comes up when a lawyer solicits or prepares an instrument with a gift from a client is whether it is “substantial”.  The Bar Rules do not define “substantial” and a potential rule violation is subject to the Bar’s subjective interpretation of the word.

If the revisions to the rule are implemented by the Florida Supreme Court, the plain language of the would prohibit lawyers from soliciting any gift from a client or soliciting or preparing a testamentary instrument of a client with any gift.  The proposed revised rule 4-1.8(c) is below:

RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED AND OTHER TRANSACTIONS

(c)  Gifts to Lawyer or Lawyer’s Family. A lawyer is prohibited from soliciting any gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.

According to the Bar’s notice: “Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition(s) (which will be 10/15/16). Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.”

Bottom line:  If approved by the Florida Supreme Court, this revision would provide more clarity to lawyers regarding the acceptance of gifts; however, it will also mean that a lawyer will violate this rule if he or she accepts any gift from a client.

Be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and 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

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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