Amended Florida Bar Rule 4-1.8(c) prohibiting soliciting any gift from a client or preparing instrument with any gift became effective 2/1/18

Hello and welcome to this Ethics Alert which will discuss amended Florida Bar Rule 4-1.8(c), which prohibits a lawyer from soliciting any gift from a client or preparing an instrument with any gift for the client.  The Florida Bar filed a Petition that included the proposed rule amendment with the Florida Supreme Court on October 15, 2016.  In an opinion dated November 9, 2017, the Court approved amended Rule 4-1.8(c),, which became effective February 1, 2018.  The case cite is: In re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), 229 So.3d 1154 (Fla. 2017) and the opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc16-1961.pdf

Previous Florida Bar Rule 4-1.8(c) prohibited 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, the rule did not define “substantial” and a potential rule violation was potentially subject to the Bar’s subjective interpretation of that word.

Amended Bar Rule 4-1.8(c) now prohibits lawyers from soliciting any gifts from clients or preparing an instrument for a client with a gift, regardless of the size of the gift.  Florida Bar Rule 4-1.8(c) as amended, 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.

The Comment to Rule 4-1.8 was also amended to state that a lawyer may prepare a document that appoints the lawyer, the lawyer’s firm, or a relative of the lawyer to a “fiduciary office” (such as a personal representative or trustee) only if “the client is properly informed, the appointment does not violate rule 4-1.7, the appointment is not the product of undue influence or improper solicitation by the lawyer, and the client gives informed consent, confirmed in writing.”

The Comment further states that the lawyer should advise the client in writing that “a person who serves as a fiduciary is entitled to compensation, and that the lawyer may be eligible to receive compensation for serving as a fiduciary in addition to any attorneys’ fees that the lawyer or the lawyer’s firm may earn for serving as a lawyer for the fiduciary.” (emphasis supplied)

Bottom line:  This Bar Rule amendment clarifies the rule and a lawyer will now violate this rule if he or she solicits any gift from a client or prepares and instrument with a gift, regardless of the size of the gift.

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.

29605 U.S. Highway 19 N., Suite 150,

Clearwater, Florida 33761

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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