In re Amendments to Rules Regulating the Florida Bar (677 So. 2d 272, 1996)

Florida Supreme Court 1996-06-27

Citations

Full opinion text

PER CURIAM.

The Florida Bar petitions this Court to amend the Rules Regulating the Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const.

The petition in this ease constitutes the Florida Bar’s annual proposed rule amendments. Notice of all but two of the Bar’s proposed amendments was published in the February 15, 1996, issue of The Florida Bar News. The remaining two proposed rule amendments (technical changes to rules 6-1.1 and 6-1.2 governing legal specialization and education programs) were inadvertently omitted in the original publication. Those proposed amendments were published in the March 1,1996, issue of the Bar News.

After publication but before filing with this Court, the Bar withdrew its proposed amendment to rule 10-2.1, which would have provided a definition for the unlicensed practice of law. The Bar withdrew that proposal after recognizing that the proposed definition needed further refinement. Other proposed amendments to that rule were not withdrawn.

The Bar has requested a waiver as to the thirty-day notice requirement contained in rule l-12.1(g) so that the proposed technical amendments to rules 6-1.1 and 6-1.2 concerning legal specialization and education may travel with the remaining proposed amendments in this case. The Bar has also requested a waiver regarding the need to publish its withdrawal of the proposed definition for the unauthorized practice of law in rule 10-2.1. By this opinion, we grant those waiver requests. We now turn to the merits of this proceeding.

The Bar has summarized the proposed rule amendments as follows:

CHAPTER 1. GENERAL

1-3. MEMBERSHIP

RULE 1-3.5 RETIREMENT

Summary: Would allow disciplinary action against a retired 'member of the Bar, for acts committed while that individual was a member in good standing.

1-4. BOARD OF GOVERNORS

RULE 1-4.3 COMMITTEES

Summary: Expands the executive committee of the board of governors by adding the president of the Young Lawyers Division and the chair of the communications committee.

1-7. DUES AND FISCAL CONTROL

RULE 1-7.3 DUES

Summary: Clarifies that inactive membership shall continue from year to year upon a member’s timely initial election to be classified in that status.

CHAPTER 2. BYLAWS OF THE FLORIDA BAR

2.7. SECTIONS

RULE 2-7.3 CREATION OF SECTIONS AND DIVISIONS

Summary: Changes the names of the Local Government Law Section to the City, County and Local Government Law Section, and the Practice Management and Technology Section to the Practice Management and Development Section.

CHAPTER 3. RULES OF DISCIPLINE

3.7. PROCEDURES

RULE 3-7.4 GRIEVANCE COMMITTEE PROCEDURES

Summary: Adds language that clarifies that the quorum requirement for grievance committee hearings does not require a minimum of 2 lawyers voting.

CHAPTER 4. RULES OF PROFESSIONAL CONDUCT

4-5. LAW FIRMS AND ASSOCIATIONS

RULE 4-5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER

Summary: Allows the practice of law in the form of a professional limited liability company or registered limited liability partnership.

4-7. INFORMATION ABOUT LEGAL SERVICES

RULE 4-7.2 ADVERTISING

Summary: Provides that all required disclosure statements for a lawyer or law firm advertisement must appear in every language that is used in any ad.

RULE 4-7.5 EVALUATION OF ADVERTISEMENTS

Summary: Alows the imposition of a late fee for attorney ads that are not timely filed for evaluation.

RULE 4-7.6 COMMUNICATION OF FIELDS OF PRACTICE

Summary: Clarifies that lawyers certified by The Florida Bar or any organization accredited by the American Bar Association (national or otherwise) may advertise themselves as “specialists.”

4-8. MAINTAINING THE INTEGRITY OF THE PROFESSION

RULE 4-8.6 PROFESSIONAL SERVICE CORPORATIONS

Summary: Changes the name of the rule to “Authorized Business Entities,” and allows for and defines the practice of law in the form of a professional limited liability company or registered limited liability partnership.

CHAPTER 6. LEGAL SPECIALIZATION AND EDUCATION PROGRAMS

6-1. GENERALLY

RULE 6-1.1 COMPOSITION OF BOARD

Summary: Expands the Board of Legal Specialization and Education and establishes the office of chair-elect.

RULE 6-1.2 PUBLIC NOTICE

Summary: Deletes references to the Florida Designation Plan, to expire on June 30,1996, and revises the public notice for telephone directories to reflect that the BLSE is the publisher of such notice.

CHAPTER 10. RULES GOVERNING THE INVESTIGATION AND PROSECUTION OF THE UNLICENSED PRACTICE OF LAW

10-1. PREAMBLE

RULE 10-1.2 DUTY OF THE FLORIDA BAR

Summary: Recognizes an individual’s right of self-representation and that the right to represent another is a privilege to be granted and regulated by law.

10-2. DEFINITIONS

RULE 10-2.1 GENERALLY

Summary: Adds definitional language and definitional sections regarding the designated reviewer and executive committee.

10-3. STANDING COMMITTEE

RULE 10-3.1 GENERALLY

Summary: Sets forth the number of members to be appointed to the committee and provides for staggered terms.

RULE 10-3.2 DUTIES OF THE STANDING COMMITTEE

Summary: Amends the procedure for review of cases.

RULE 10-3.3 APPOINTMENT OF STAFF COUNSEL AND BAR COUNSEL

Summary: Revises reference from assistant staff counsel, to UPL staff counsel.

10-4. CIRCUIT COMMITTEES

RULE 10-4.1 GENERALLY

Summary: Amends the number of members needed for a quorum, number of years a member may serve on the committee, and the procedure for closing cases; sets forth guidelines regarding when meetings should be held.

10-6. PROCEDURES FOR INVESTIGATION

RULE 10-6.3 RECOMMENDATIONS AND DISPOSITION OF COMPLAINTS

Summary: Amends the procedure for review and disposition of cases.

10-7. PROCEEDINGS BEFORE A REFEREE

RULE 10-7.1. PROCEEDINGS GENERALLY

Summary: Amends title to read “Proceedings for Injunctive Relief.”

RULE 10-7.2. PROCEEDINGS FOR INDIRECT CRIMINAL CONTEMPT

Summary: New rule which sets forth the procedure to be followed in proceedings for indirect criminal contempt.

CHAPTER 18. MILITARY LEGAL ASSISTANCE COUNSEL RULE

Summary: Creates a new chapter which would permit military attorneys to represent junior enlisted service members and their dependent family members in Florida courts for certain limited civil matters as part of an organized military legal assistance program.

Of these proposed amendments, only three generated comment. First, Michael Catala-no contends that we should reject the proposed amendments to rule 3-7.4, which are intended to clarify that the quorum requirement for grievance committee probable cause findings does not require a vote of two lawyers. This amendment is being proposed as a direct result of our decision in Florida Bar v. Catalano, 651 So.2d 91 (Fla.1995), in which we read rule 3-7.4 as providing to the contrary. Catalano argues that this amendment would result in unwarranted findings of probable cause against lawyers. We disagree. This amendment does not alter the requirement that all findings of probable cause must be made by an affirmative vote of a majority of the voting grievance committee members; the amendment simply alters the requirement that two of those voting members must be lawyers. Given that a finding of probable cause must still be by affirmative vote of a majority of voting members and that such findings of probable cause are subsequently subject to review by both a referee and this Court, we cannot say that this change unfairly prejudices the rights of those individuals subjected to the disciplinary process. Consequently, we reject Catalano’s contentions.

Second, Robert Shapiro complains that rule 4-7.2 regarding lawyer advertising fails to address lawyer advertising on the Internet. In response to this comment, the Bar stated that this issue is currently being studied by the Standing Committee on Advertising and the Joint Presidential Advertising Task Force. Because this issue is currently being studied and a rule on this issue will likely be submitted in the near future, we decline to impose such regulations at this time.

Finally, we received a number of comments regarding proposed amendments to rule 10-1.2, which sets forth the duty of the Bar in the unlicensed practice of law. The proposed amendment to that rule provides:

The right of individuals to represent themselves is an inalienable right common to all natural persons. However, no one has the right to represent another; it is a privilege to be granted and regulated by the court for the protection of the public.

We received comments from numerous non-lawyer professionals contending that this proposal was too broad because it does not limit this prohibition on representation to the practice of law. According to the comments, this rule, as drafted, would prohibit representation in non-legal matters by non-lawyer trustees, certified public accountants, engineers, and numerous others. We agree. Neil Butler, who responded on behalf of the Florida Council of Associated General Contractors, proposes that we include limiting language to prohibit representation “in matters involving the practice of law.” The Bar states that it has no objection to this additional language. While we believe the suggested language improves the proposed amendment, we find that this amendment should not be implemented at this time. As indicated earlier in this opinion, the Bar withdrew its proposed definition of the unlicensed practice of law for inclusion in rule 10-2.1 because that definition required refinement. We likewise find it appropriate to return the proposal at issue for further consideration in light of such decisions as Florida Bar v. Moses, 380 So.2d 412 (Fla.1980). The proposal, as submitted, provides that the right to represent another is a privilege to be granted and regulated by this Court. While this Court clearly has the authority under our Florida Constitution to regulate the unlicensed practice of law, we have found that “[t]his Court has no control over the agencies of this state, and [that] any attempt to exercise it would violate article II, section 3 of the constitution” Id. at 417. As such, we have determined that the legislature has the authority to “oust the Court’s responsibility to protect the public in administrative proceedings.” Id. The proposed amendment, as written, does not address these considerations. Because the Bar is reconsidering a proposed definition for the unlicensed practice of law, we conclude that the Bar should also reconsider this proposed amendment in light of the above. Consequently, we reject the proposed amendment to rule 10-1.2 at this time.

We hereby adopt, without discussion, the remaining proposed amendments to the rules.

Accordingly, the rules are amended and adopted as reflected in the appendix to'this opinion. The new language is indicated by underscoring; deletions are indicated by strike-through type. These amendments shall take effect on July 1,1996.

It is so ordered.

KOGAN, C.J., and OVERTON, SHAW, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.

APPENDIX

RULE 1-3.5 RETIREMENT

Any member of The Florida Bar may retire from The Florida Bar upon petition to and approval of the board of governors. A retired member shall not practice law in this state except upon petition for reinstatement to and approval of the board of governors; the payment of all dues, fees, costs, or other amounts owed to The Florida Bar; and the completion of all outstanding continuing legal education or basic skills course requirements. A retired member shall be entitled to receive such other privileges as the board of governors may authorize.

A retired member shall remain subject to disciplinary action for acts committed before the effective date of retirement. Acts committed after retirement may be considered in evaluating the member’s fitness to resume the practice of law in Florida as elsewhere stated in these Rules Regulating The Florida Bar.

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1-4. BOARD OF GOVERNORS

RULE 1-4.3 COMMITTEES

The board of governors shall create an executive committee composed of the president, president-elect, chair of the budget committee, chair of the communications committee, chair of the legislation committee, president of the young lawyers division, 2 members of the board appointed by the president, and 3 members of the board elected by the board to act upon such matters as arise and require disposition between meetings of the board; a budget committee composed of 9 members with 3-year staggered terms; grievance committees as provided for in chapter 3; unlicensed practice of law committees as provided for in chapter 10; and a professional ethics committee.

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RULE 1-7.3 DUES

(a) Dues Requirement. On or before July 1 of each year, every member of The Florida Bar, except those members who have retired, resigned, been disbarred, or been placed on the inactive list pursuant to rule 3-7.13, shall pay annual dues to The Florida Bar in the amount set by the budget, provided that the board of governors shall not fix the dues at more than $190 per annum. At the time of the payment of dues every member of The Florida Bar shall file with the executive director a statement setting forth any information that may be required by the board of governors.

Dues tendered to The Florida Bar shall not be accepted from any member who is delinquent in the payment of costs or restitution imposed against the member in a disciplinary proceeding. Costs shall be deemed delinquent unless paid within 30 days after the disciplinary decision becomes final unless such time is extended by the board of governors for good cause shown. Restitution shall be deemed delinquent unless accomplished in the manner and by the date provided in the disciplinary order or agreement.

(b) Prorated Dues. Persons admitted to The Florida Bar subsequent to July 1 of any fiscal year shall pay the annual dues for that fiscal year prorated on the basis of the number of full calendar months of the fiscal year remaining at the time of their admission.

Failure to pay prorated dues shall result in the amount of such prorated dues being added to the next annual dues billing to the member without penalty. The combined prorated and annual dues payment must thereafter be received by The Florida Bar on or before August 15, unless the member elects to pay by installment under this rule.

(c) Installment Payment of Dues. Members of The Florida Bar may elect to pay annual dues in three equal installments as follows:

(1) in the second and third year of their admission to The Florida Bar; or

(2) if the member is employed by a federal, state or local government in a non-elected position that requires the individual to maintain membership in good standing within The Florida Bar.

A member’s notice of election to pay dues in installments under this rule and the first installment payment thereunder must be postmarked no later than August 15. The second and third installment payments must be postmarked no later than November 1 and February 1, respectively.

Second and/or third installment payments postmarked after their respective due date(s) shall be subject to a one-time late charge of $25 per fiscal year, which shall accompany the final payment.

The executive director shall send written notice by registered or certified mail to the last official bar address of each member whose dues and late fees have not been paid under this rule by February 1. Upon failure to pay dues and any late charges under this rule by March 15, the member shall be a delinquent member.

Each member who elects to pay annual dues in installments under this rule may be charged an additional administrative fee to defray the costs of this activity as set by the Board of Governors.

(d) Election of Inactive Membership. A member in good standing may elect by August 15 of each a fiscal year to be classified as an inactive member. Such election shall be made only by indication of such choice on the annual dues statement and payment of the prescribed annual dues. Failure to make the initial election by August 15 shall constitute a waiver of the member’s right to the election until the next fiscal year. Once a member has properly elected to be classified as an inactive member, such classification shall continue from fiscal year to fiscal year until such time as the member is reinstated as a member in good standing as elsewhere provided in these rules. The election of inactive status shall be subject to the restrictions and limitations elsewhere provided.

Once a member has properly-elected to be classified as an inactive member, such-elassi-fication — shall continue-from — fiscal year to fiscal year-until such time-as-the member is reinstated -as-a-member in good standing as elsewhere provided in-these-rules.

Dues for inactive members shall be set by the board of governors in an amount, not to exceed $140 per annum.

(e)Late Payment of Dues. Payment of annual dues must be postmarked no later than August 15. Dues postmarked after August 15 shall be accompanied by a late charge of $25. The executive director shall send written notice by registered or certified mail to the last official bar address of each member whose dues have not been paid by August 15. Upon failure to pay dues and any late charges by September 30, the member shall be a delinquent member.

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BYLAW 2-7.3 CREATION OF SECTIONS AND DIVISIONS

Sections and divisions may be created or abolished by the board of governors as deemed necessary or desirable. The following sections of The Florida Bar have been created by the board of governors:

(a) Administrative Law Section;

(b) Appellate Practice and Advocacy Section;

(c) Business Law Section;

(nd) City, County and Local Government Law Section;

(de) Criminal Law Section;

(ef) Elder Law Section;

(fg) Entertainment, Arts, and Sports Law Section;

(gh) Environmental and Land Use Law Section;

(hi) Family Law Section;

(ij) General Practice Section;

(jk) Government Lawyer Section;

(kl) Health Law Section;

(1m) International Law Section;

(«m) Labor and Employment Law Section;

(o) Practice Management and Technology Development Section;

(p) Public Interest Law Section;

(q) Real Property, Probate, and Trust Law Section;

(r) Tax Section;

(s) Trial Lawyers Section; and

(t) Workers’ Compensation Section.

The following divisions of The Florida Bar have been created by the board of governors:

(a) Out-of-State Practitioners • Division; and

(b) Young Lawyers Division.

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RULE 3-7.4 GRIEVANCE COMMITTEE PROCEDURES

(a) Notice of Hearing. When notice of a grievance committee hearing is sent to the respondent, such notice shall be accompanied by a list of the grievance committee members.

(b) Complaint Piled With Grievance Committee. A complaint received by a committee direct from a complainant shall be reported to the appropriate branch staff counsel for docketing and assignment of a case number, unless the committee resolves the complaint within 10 days after receipt of the complaint. A written report to bar counsel shall include the following information: complainant’s name and address, respondent’s name, date complaint received by committee, copy of complaint letter or summary of the oral complaint made, and the name of the committee member assigned to the investigation. Formal investigation by a grievance committee may proceed after the matter has been referred to bar counsel for docketing.

(c) Investigation. A grievance committee is required to consider all charges of misconduct forwarded to the committee by counsel whether based upon a written complaint or not.

(d) Conduct of Proceedings. The proceedings of grievance committees may be informal in nature and the committees shall not be bound by the rules of evidence.

(e) No Delay for Civil or Criminal Proceedings. An investigation shall not be deferred or suspended without the approval of the board even though the respondent is made a party to civil litigation or is a defendant or is acquitted in a criminal action, notwithstanding that either of such proceedings involves the subject matter of the investigation.

(f) Counsel and Investigators. Upon request of a grievance committee, staff counsel may appoint a bar counsel or an investigator to assist the committee in an investigation. Bar counsel shall assist each grievance committee in carrying out its investigative and administrative duties and shall prepare status reports for the committee, notify complainants and respondents of committee actions as appropriate, and prepare all reports reflecting committee findings of probable cause, no probable cause, recommended discipline for minor misconduct, and letters of advice after no probable cause findings.

(g) Quorum, Panels, and Vote.

(1) Quorum. Three members of the committee, 2 of whom must be lawyers, shall constitute a quorum.

(2) Panels. The grievance committee may consider eases in be divided into panels of not fewer than 3 members, 2 of whom must be lawyers. Consideration of matters by a Division of the grievance committee into panels of 3 members shall only be conducted upon concurrence of the designated reviewer and the chair of the grievance committee. The 3-member panel shall elect 1 of its lawyer members to preside over the panel’s actions. If the chair or vice-chair is a member of a 3-member panel, the chair or vice-chair shall be the presiding officer.

(3) Vote. All findings of probable cause and recommendations of guilt of minor misconduct shall be made by affirmative vote of a majority of the committee members present, which majority must number at least 2 members. There shall be no required minimum number of lawyer members voting in order to satisfy the requirements of this rule. The number of committee members voting for or against the committee report shall be reflected in the transcript. Minority reports may be filed. A lawyer grievance committee member may not vote on the disposition of any matter in which that member served as the investigating member of the committee.

(h) Rights and Responsibilities of the Respondent. The respondent may be required to testify and to produce evidence as any other witness unless the respondent claims a privilege or right properly available to the respondent under applicable federal or state law. The respondent may be accompanied by counsel. At a reasonable time before any finding of probable cause or minor misconduct is made, the respondent shall be advised of the conduct that is being investigated and the rules that may have been violated. The respondent shall be provided with all materials considered by the committee and shall be given an opportunity to make a written statement, sworn or unsworn, explaining, refuting, or admitting the alleged misconduct.

(i) Rights of the Complaining Witness. The complaining witness is not a party to the disciplinary proceeding. Unless it is found to be impractical by the chair of the grievance committee due to unreasonable delay or other good cause, the complainant shall be granted the right to be present at any grievance committee hearing when the respondent is present before the committee. Neither unwillingness nor neglect of the complaining witness to cooperate, nor settlement, compromise, or restitution, will excuse the completion of an investigation. The complaining witness shall have no right to appeal.

(j) Finding of No Probable Cause.

(1) Authority of Grievance Committee. A grievance committee may terminate an investigation by finding that no probable cause exists to believe that the respondent has violated these rules. The committee may issue a letter of advice to the respondent in connection with the finding of no probable cause.

(2) Notice of Committee Action. Bar counsel shall notify the respondent and complainant of the action of the committee.

(3) Effect of No Probable Cause Finding. A finding of no probable cause by a grievance committee shall not preclude the reopening of the case and further proceedings therein.

(4) Disposition of Committee Files. Upon the termination of the grievance committee’s investigation, the committee’s file shall be forwarded to bar counsel for disposition in accord with established bar policy.

(k) Letter Reports in No Probable Cause Cases. Upon a finding of no probable cause, bar counsel will submit a letter report of the no probable cause finding to the complainant, presiding member, investigating member, and the respondent, including any documentation deemed appropriate by bar counsel and explaining why the complaint did not warrant further proceedings. Letters of advice issued by a grievance committee in connection with findings of no probable cause shall be signed by the presiding member of the committee. Letter reports and letters of advice shall not constitute a disciplinary sanction.

(l) Preparation, Forwarding, and Review of Grievance Committee Complaints. If a grievance committee finds probable cause, the bar counsel assigned to the committee shall promptly prepare a record of its investigation and a formal complaint. The record before the committee shall consist of all reports, correspondence, papers, and/or recordings furnished to or received from the respondent, and the transcript of grievance committee meetings or hearings, if the proceedings were attended by a court reporter; provided, however, that the committee may retire into private session to debate the issues involved and to reach a decision as to the action to be taken. The formal complaint shall be signed by the member of the committee who presided in the proceeding. The formal complaint shall be in such form as shall be prescribed by the board. If the presiding member of the grievance committee disagrees with the form of the complaint, the presiding member may direct bar counsel to make changes accordingly. If bar counsel does not agree with the changes, the matter shall be referred to the designated reviewer of the committee for appropriate action. When a formal complaint by a grievance committee is not referred to the designated reviewer, or returned to the grievance committee for further action, the formal complaint shall be promptly forwarded to and reviewed by bar headquarters staff counsel who shall file the formal complaint, and furnish a copy of the formal complaint to the respondent. A copy of the record shall be made available to the respondent at the respondent’s expense.

(m)Recommendation of Admonishment for Minor Misconduct. If the committee recommends an admonishment for minor misconduct, the grievance committee report shall be drafted by bar counsel and signed by the presiding member. The committee report need only include: (1) the committee’s recommendations regarding the admonishment, designation withdrawal, and conditions of redesignation; (2) the committee’s recommendation as to the method of administration of the admonishment; (3) a summary of any additional charges that will be dismissed if the admonishment is approved; (4) any comment on mitigating, aggravating, or eviden-tiary matters that the committee believes will be helpful to the board in passing upon the admonishment recommendation; and (5) an admission of minor misconduct signed by the respondent, if the respondent has admitted guilt to minor misconduct. No record need be submitted with such a report. After the presiding member signs the grievance committee report, the report shall be returned to bar counsel. The report recommending an admonishment shall be forwarded to staff counsel and the designated reviewer for review. If staff counsel does not return the report to the grievance committee to remedy a defect therein, or if the designated reviewer does not present the same to the disciplinary review committee for action by the board, the report shall then be served on the respondent by bar counsel.

(n) Rejection of Admonishment. The order of admonishment shall become final unless rejected by the respondent within 15 days after service upon the respondent. If rejected by the respondent, the report shall be referred to bar counsel and referee for trial on complaint of minor misconduct to be prepared by bar counsel as in the case of a finding of probable cause.

(o) Recommendation of Diversion to Remedial Programs. A grievance committee may recommend, as an alternative to issuing a finding of minor misconduct or no probable cause with a letter of advice, diversion of the disciplinary case to a practice and professionalism enhancement program as provided elsewhere in these rules. A respondent may reject the diversion recommendation in the same manner as provided in the rules applicable to rejection of findings of minor misconduct. In the event that a respondent rejects a recommendation of diversion, the matter shall be returned to the committee for further proceedings.

(p) Appointment of Bar Counsel. When a grievance committee formal complaint is not referred to the disciplinary review committee, or returned to the grievance committee, staff counsel of The Florida Bar headquarters in Tallahassee may appoint bar counsel unless bar counsel has been appointed, sign the complaint and file the same in the Supreme Court of Florida, serve a copy on the respondent, and request the Supreme Court of Florida to assign a referee to try the cause. If probable cause is found by the board, bar counsel will prepare the formal complaint.

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RULE 4-5.4 PROFESSIONAL INDEPENDENCE OF A LAWYER

(a) Sharing Fees with Nonlawyers. A lawyer or law firm shall not share legal fees with a nonlawyer, except that:

(1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the payment of money, over a reasonable period of time after the lawyer’s death, to the lawyer’s estate or to 1 or more specified persons;

(2) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation that fairly represents the services rendered by the deceased lawyer;

(3) a lawyer who purchases the practice of a deceased, disabled, or disappeared lawyer may, in accordance with the provisions of rule 4-1.17, pay to the estate or other legally authorized representative of that lawyer the agreed upon purchase price; and

(4) bonuses may be paid to nonlawyer employees based on their extraordinary efforts on a particular case or over a specified time period, provided that the payment is not based on the generation of clients or business and is not calculated as a percentage of legal fees received by the lawyer or law firm.

(b) Qualified Pension Plans. A lawyer or law firm may include nonlawyer employees in a qualified pension, profit-sharing, or retirement plan, even though the lawyer’s or law firm’s contribution to the plan is based in whole or in part on a profit-sharing arrangement.

(c) Partnership With Nonlawyer. A lawyer shall not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.

(d) Exercise of Independent Professional Judgment. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.

(e) Nonlawyer Ownership of Professional Sendee Corporation or Association Authorized Business Entity. A lawyer shall not practice with or in the form of a professional cor-p&ration-or association business entity authorized to practice law for a profit if:

(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or

(2) a nonlawyer has the right to direct or control the professional judgment of a lawyer.

Comment

The provisions of this rule express traditional limitations on sharing fees. These limitations are to protect the lawyer’s professional independence of judgment. Where someone other than the client pays the lawyer’s fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer’s obligation to the client. As stated in subdivision (c), such arrangements should not interfere with the lawyer’s professional judgment.

The prohibition against sharing legal fees with nonlawyer employees is not intended to prohibit profit-sharing arrangements that are part of a qualified pension, profit-sharing, or retirement plan. Compensation plans, as opposed to retirement plans, may not be based on legal fees.

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RULE 4-7.2 ADVERTISING

(a) Permissible Forms of Advertising. Subject to all the requirements set forth in this subehapter 4-7, including the filing requirements of rule 4-7.5, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, billboards and other signs, radio, television, and recorded messages the public may access by dialing a telephone number, or through written communication not involving' solicitation as defined in rule 4-7.4. These rules shall not apply to any advertisement broadcast or disseminated in another jurisdiction in which the advertising lawyer is admitted if such advertisement complies with the rules governing lawyer advertising in that jurisdiction and is not intended for broadcast or dissemination within the State of Florida.

(b) Single Voice Requirement; Employee of Lawyer or Law Firm. Advertisements on the electronic media such as television and radio may contain the same factual information and illustrations as permitted in advertisements in the print media, but the information shall be articulated by a single voice, with no background sound other than instrumental music. The voice may be that of a full-time employee of the firm whose services are advertised; it shall not be that of a celebrity whose voice is recognizable to the public. The lawyer or full-time employee of the firm whose services are being advertised may appear on screen or on radio.

(c) Name of Lawyer or Lawyer Referral Service. All advertisements and written communications pursuant to these rules shall include the name of at least 1 lawyer or the lawyer referral service responsible for their content.

(d) Disclosure Statement. Except as provided in this subdivision, all advertisements, other than lawyer referral service advertisements shall contain the following disclosure: “The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.” Lawyer referral service advertisements shall contain the following disclosure: “The hiring of a lawyer is an important decision. Before you decide to hire the lawyer to whom you are referred, ask that lawyer for written information about that lawyer’s qualifications and experience.” These disclosures need not appear in electronic advertisements or advertisements in the public print media that contain no illustrations and no information other than that listed in subdivision (n)(l)-(10) of this rule.

(e) Dramatizations Prohibited. There shall be no dramatization in any advertisement in any medium.

(f) Use of Illustrations. Illustrations used in advertisements shall present information that can be factually substantiated and is not merely self-laudatory.

(g) Fields of Practice. Every advertisement and written communication that indicates 1 or more areas of law in which the lawyer or law firm practices shall conform to the requirements of rule 4-7.6.

(h) Disclosure of Liability For Expenses Other Than Fees. Every advertisement and written communication that contains information about the lawyer’s fee, including those that indicate no fee will be charged in the absence of a recovery, shall disclose whether the client will be liable for any expenses in addition to the fee. Additionally, advertisements and written communications indicating that the charging of a fee is contingent on outcome or that the fee will be a percentage of the recovery shall disclose (1) that the client will be liable for expenses regardless of outcome, if the lawyer so intends to hold the client liable; and (2) whether the percentage fee will be computed before expenses are deducted from the recovery, if the lawyer intends to compute the percentage fee before deducting the expenses.

(i) Period for Which Advertised Fee Must be Honored. A lawyer who advertises a specific fee or range of fees for a particular service shall honor the advertised fee or range of fees for at least 90 days unless the advertisement specifies a shorter period; provided that, for advertisements in the yellow pages of telephone directories or other media not published more frequently than annually, the advertised fee or range of fees shall be honored for no less than 1 year following publication.

(j) Self-laudatory Statements. A lawyer shall not make statements that are merely self-laudatory or statements describing or characterizing the quality of the lawyer’s services in advertisements and written communications; provided that this provision shall not apply to information furnished to a prospective client at that person’s request or to information supplied to existing clients.

(k) Firm Name. A lawyer shall not advertise services under a name that violates the provisions of rule 4-7.7.

(l) Location of Practice. All advertisements and written communications provided for under these rules shall disclose the geographic location, by city or town, of the office in which the lawyer or lawyers who will actually perform the services advertised principally practice law. If the office location is outside a city or town, the county in which the office is located must be disclosed. A lawyer referral service shall disclose the geographic area in which the lawyer practices when a referral is made.

(m) Payment by Nonadvertising Lawyer. No lawyer shall, directly or indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the same firm unless the advertisement discloses the name and address of the nonadvertising lawyer, the relationship between the advertising lawyer and the nonadvertising lawyer, and whether the advertising lawyer may refer any case received through the advertisement to the nonadvertising lawyer.

(n) Permissible Content of Advertisements. The following information in advertisements and written communications shall be presumed not to violate the provisions of rule 4-7.1:

(1) subject to the requirements of this rule and rule 4-7.7, the name of the lawyer or law firm, a listing of lawyers associated with the firm, office addresses and telephone numbers, office and telephone service hours, and a designation such as “attorney” or “law firm”;

(2) date of admission to The Florida Bar and any other bars and a listing of federal courts and jurisdictions other than Florida where the lawyer is licensed to practice;

(3) technical and professional licenses granted by the state or other recognized licensing authorities and educational degrees received, including dates and institutions;

(4) foreign language ability;

(5) fields of law in which the lawyer practices, subject to the requirements of rule 4-7.6;

(6) prepaid or group legal service plans in which the lawyer participates;

(7) acceptance of credit cards;

(8) fee for initial consultation and fee schedule, subject to the requirements of subdivisions (h) and (i) of this rule;

(9) a listing of the name and geographic location of a lawyer or law firm as a sponsor of a public service announcement or charitable, civic, or community program or event; and

(10) a lawyer referral service may advertise its name, location, telephone number, the referral fee charged, its hours of operation, the process by which referrals are made, the areas of law in which referrals are offered, the geographic area in which the lawyers practice to whom those responding to the advertisement will be referred, and, if applicable, its nonprofit status, its status as a lawyer referral service approved by The Florida Bar, and the logo of its sponsoring bar association.

(o) Advertising in Law Directory. Nothing in this rule prohibits a lawyer or law firm from permitting the inclusion in law lists and law directories intended primarily for the use of the legal profession of such information as has traditionally been included in these publications.

(p) Maintaining Copies of Advertisements. A copy or recording of an advertisement or written or recorded communication shall be submitted to the standing committee on advertising in accordance with the requirements of rule 4-7.5, and the lawyer shall retain a copy or recording for 3 years after its last dissemination along with a record of when and where it was used.

(q) Payment for Recommendations; Lawyer Referral Service Fees. A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may pay the reasonable cost of advertising or written or recorded communication permitted by these rules, may pay the usual charges of a lawyer referral service or other legal service organization, and may purchase a law practice in accordance with rule 4-1.17.

(r) Language of Required Statements. Any words or statements required by this rule, rule 4-7.3, or rule 4-7.4 to appear in an advertisement or direct mail communication must appear in the same language in which the advertisement appears. If more than 1 language is used in an advertisement or direct mail communication, any words or statements required by this rule, rule 4r-7.3, or rule 4-7.4 must appear in each language used in the advertisement or direct mail communication.

Comment

To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. The public’s need to know about legal services can be fulfilled in part through advertising that provides the public with useful, factual information about legal rights and needs and the availability and terms of legal services from a particular lawyer or law firm. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. Nevertheless, certain types of advertising by lawyers create the risk of practices that are misleading or overreaching and can create unwarranted expectations by persons untrained in the law. Such advertising can also adversely affect the public's confidence and trust in our judicial system.

In order to balance the public’s need for useful information, the state’s need to ensure a system by which justice will be administered fairly and properly, as well as the state’s need to regulate and monitor the advertising practices of lawyers, and a lawyer’s right to advertise the availability of the lawyer’s services to the public, this rule permits public dissemination of information concerning a lawyer’s name or firm name, address, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer’s fees are determined, including prices for specific services and payment and credit arrangements; a lawyer’s foreign language ability; names of references and, with their consent, names of clients regularly represented; and other factual information that might invite the attention of those seeking legal assistance.

Television is now one of the most powerful media for conveying information to the public; a blanket prohibition against television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. However, the unique characteristics of electronic media, including the pervasiveness of television and radio, the ease with which these media are abused, and the passiveness of the viewer or listener, make the electronic media especially subject to regulation in the public interest. Therefore, greater restrictions on the manner of television and radio advertising are justified than might be appropriate for advertisements in the other media. To prevent abuses, including potential interferences with the fair and proper administration of justice and the creation of incorrect public perceptions or assumptions about the manner in which our legal system works, and to promote the public’s confidence in the legal profession and this country’s system of justice while not interfering with the free flow of useful information to prospective users of legal services, it is necessary also to restrict the techniques used in television and radio advertising.

Subdivisions (b) and (e) of this rule are designed to ensure that the advertising is not misleading and does not create unreasonable or unrealistic expectations about the results the lawyer may be able to obtain in any particular case, and to encourage a focus on providing useful information to the public about legal rights and needs and the availability and terms of legal services. Thus, the rule allows all lawyer advertisements in which the lawyer personally appears to explain a legal right, the services the lawyer is available to perform, and the lawyer’s background and experience.

The prohibition in subdivision (b) against any background sound other than instrumental music precludes, for example, the sound of sirens or car crashes and the use of jingles. Subdivision 4-7.1(d) forbids use of testimonials or endorsements from clients or anyone else. Subdivision (e) prohibits dramatizations in any advertisement, including those appearing on the electronic media. This is intended to preclude the use of scenes creating suspense, scenes containing exaggerations or situations calling for legal services, scenes creating consumer problems through characterization and dialogue ending with the lawyer solving the problem, and the audio or video portrayal of an event or situation. While informational illustrations may attract attention to the advertisement and help potential clients to understand the advertisement, self-laudatory illustrations are inherently misleading and thus prohibited. As an example, a drawing of a fist, to suggest the lawyer’s ability to achieve results, would not be informational and would be barred.

Regardless of medium, a lawyer’s advertisement should provide only useful, factual information presented in a nonsensational manner. Advertisements utilizing slogans or jingles, oversized electrical and neon signs or sound trucks fail to meet these standards and diminish public confidence in the legal system.

The disclosure required by subdivision (d) of this rule is designed to encourage the informed selection of a lawyer. As provided in rule 4-7.3, a prospective client is entitled to know the experience and qualifications of any lawyer seeking to represent the prospective client. The required disclosure would be ineffective if it appeared in an advertisement so briefly or minutely as to be overlooked or ignored. Thus in print advertisements, the type size used for the disclosure must be sufficient to cause the disclosure to be conspicuous; in recorded advertisements, the disclosure must be spoken at a speed that allows comprehension by the average listener. This rule does not specify the exact type size to be used for the disclosure or the exact speed at which the disclosure may be spoken; good faith and common sense should serve as adequate guides for any lawyer.

Neither this rule nor rule 4-7.4 prohibits communications authorized by law, such as notice to members of a class in class action litigation.

This rule applies to advertisements and written communications directed at prospective clients and concerning a lawyer’s or law firm’s availability to provide legal services. The rule does not apply to communications between lawyers, including brochures used for recruitment purposes.

Paying others to recommend a lawyer

A lawyer is allowed to pay for advertising permitted by this rule and for the purchase of a law practice in accordance with the provisions of rule 4AL.17, but otherwise is not permitted to pay or provide other tangible benefits to another person for procuring professional work. However, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs, subject, however, to the limitations imposed by rule 4-7.8. Subdivision (q) does not prohibit paying regular compensation to an assistant, such as a secretary or advertising consultant, to prepare communications permitted by this rule.

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RULE 4-7.5 EVALUATION OF ADVERTISEMENTS

(a) Advisory Opinion. A lawyer may obtain an advisory opinion concerning the compliance of a contemplated advertisement or written communication with these rules in advance of disseminating the advertisement or communication by submitting the material and fee specified in subdivision (d) to the standing committee on advertising at least 15 days prior to such dissemination. If the committee finds that the advertisement complies with these rules, the lawyer’s voluntary submission shall be deemed to satisfy the filing requirement set forth in subdivision (b) of this rule.

(b) Filing Copy of Advertisement. Subject to the exemptions stated in subdivision (c)of this rule, any lawyer who advertises services through any public media or through written communication not involving solicitation as defined in rule 4-7.4 shall file a copy of each such advertisement with the standing committee on advertising for evaluation of compliance with these rules. The copy shall be filed either prior to or concurrently with the lawyer’s first dissemination of the advertisement or written communication and shall be accompanied by the information and fee specified in subdivision (d).

(c) Exemptions from Filing Requirement. The following are exempt from the filing requirements of subdivision (b) of this rule:

(1) Any advertisement in any of the public media, including the yellow pages of telephone directories, that contains no illustrations and no information other than that set forth in rule 4-7.2(n)(l)-(10). This exemption extends to television advertisements only if the visual display featured in such advertisements is limited to the words spoken by the announcer.

(2) A brief announcement in any of the public media that identifies a lawyer or law firm as a contributor to a specified charity or as a sponsor of a public service announcement or a specified charitable, community, or public interest program, activity, or event, provided that the announcement contains no information about the lawyer or law firm other than name, the city where the law offices are located, and the fact of the sponsorship or contribution. In determining whether an announcement is a public service announcement for purposes of this rule and rule 4-7.2(n)(9), the following are criteria that may be considered:

(A) whether the content of the announcement appears to serve the particular interests of the lawyer or law firm as much as or more than the interests of the public;

(B)- whether the announcement contains information concerning the lawyer’s or law firm’s area of practice, legal background, or experience;

(C) whether the announcement contains the address or telephone number of the lawyer or law firm;

(D) whether the announcement concerns a legal subject;

(E) whether the announcement contains legal advice; and

(F) whether the attorney paid to have the announcement published.

(3) A listing or entry in a law list.

(4) A newsletter mailed only to existing clients or other lawyers.

(5) Professional announcement cards stating new or changed associations, new offices, and similar changes relating to a lawyer or law firm, and that are mailed only to other lawyers, relatives, close personal friends, and existing clients.

(d)Contents of Filing. A filing with the committee as required by subdivision (b) or as permitted by subdivision (a) shall consist of:

(1) a copy of the advertisement or communication in the form or forms in which it is to be disseminated (e.g., videotapes, audiotapes, print media, photographs of outdoor advertising);

(2) a transcript, if the advertisement or communication is on videotape or audiotape;

(3) a statement listing all media in which the advertisement or communication will appear, the anticipated frequency of use of the advertisement or communication in each medium in which it will appear, and the anticipated time period during which the advertisement or communication will be used; and

(4) a fee paid to The Florida Bar, in an amount set by thedaoard of-governors but not exceeding of $50 for submissions timely filed as provided in subdivisions (a) or (b), or $250 for submissions not timely filed. This fee shall be used to offset the cost of evaluation and review of advertisements submitted under these rules and the cost of enforcing these rules.

(e) Evaluation of Advertisements. The committee shall evaluate all advertisements and written communications filed with it pursuant to this rule for compliance with the applicable rules set forth in this subchapter 4-7. The committee shall complete its evaluation within 15 days of receipt of a filing unless the committee determines that there is reasonable doubt that the advertisement or written communication is in compliance with the rules and that further examination is warranted but cannot be completed within the 15-day period, and so advises the lawyer within the 15-day period. In the latter event, the committee shall complete its review as promptly as the circumstances reasonably allow. If the committee does not send any communication to the lawyer within 15 days, the advertisement will be deemed approved.

(f) Substantiating Information. If requested to do so by the committee, the filing lawyer shall submit information to substantiate representations made or implied in that lawyer’s advertisement or written communication.

(g) Notice of Noncompliance; Effect of Continued Use of Advertisement. When the committee determines that an advertisement or written communication is not in compliance with the applicable rules, the committee shall advise the lawyer that dissemination or continued dissemination of the advertisement or written communication may result in professional discipline.

(h) Committee Determination Not Binding; Evidence. A finding by the committee of either compliance or noncompliance shall not be binding in a grievance proceeding, but may be offered as evidence.

(i) Change of Circumstances; Refiling Requirement. If a change of circumstances occurring subsequent to the committee’s evaluation of an advertisement or written communication raises a substantial possibility that the advertisement or communication has become false or misleading as a result of the change in circumstances, the lawyer shall promptly refile the advertisement or a modified advertisement with the committee along with an explanation of the change in circumstances and an additional fee set by the board of governors but not exceeding $50.

Comment

This rule has a dual purpose: to enhance the court’s and the bar’s ability to monitor advertising practices for the protection of the public and to assist members of the bar to conform their advertisements to the requirements of these rules. This rule gives lawyers the option of submitting their advertisements to the committee for review prior to first use or submitting their advertisements at the time of first use. In either event, the committee will advise the filing lawyer in writing whether the advertisement appears to comply with the rules. The committee’s opinion will be advisory only, but may be considered as evidence of a good faith effort to comply with these rules. A lawyer who wishes to be able to rely on the committee’s opinion as demonstrating the lawyer’s good faith effort to comply with these rules has the responsibility of supplying the committee with all information material to a determination of whether an advertisement is false or misleading.

In The Florida Bar v. Doe, 634 So.2d 160 (Fla.1994), the court recognized the need for specific guidelines to aid lawyers and the bar in determining whether a particular announcement in the public media is a public service announcement as contemplated in this rule and rule 4-7.2(n). Subdivisions (c)(2)(A)-(F) of this rule respond to the court’s concern by setting forth criteria that, while not intended to be exclusive, provide the needed guidance. With the exception of subdivision (c)(2)(C), these criteria are based on factors considered by the court in Doe. ******

RULE 4-7.6 COMMUNICATION OF FIELDS OF PRACTICE

A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. A lawyer shall not state or imply that the lawyer is a specialist except as follows:

(a) Patent Practice. A lawyer admitted to engage in patent practice before the United States patent and trademark office may use the designation “patent attorney” or a substantially similar designation.

(b) Certified Lawyers. A lawyer who complies with the Florida certification plan as set forth in chapter 6, Rules Regulating The Florida Bar, or who is certified by a national group which an organization whose specialty certification program has been accredited by the American Bar Association Standing Committee on Specialization may inform the public and other lawyers of the lawyer’s certified areas of legal practice and may state in communications to the public that the lawyer is a “specialist in (area of certification).”

(c) Designated Lawyers. A lawyer who complies with the Florida designation plan as set forth in chapter 6, Rules Regulating The Florida Bar, may inform the public and other lawyers of the lawyer’s designated areas of legal practice.

Comment

This rule permits a lawyer to indicate areas of practice in communications about the lawyer’s services, such as in a telephone directory or other advertising. If a lawyer practices only in certain fields, or will not accept matters except in such fields, the lawyer is permitted so to indicate. However, no lawyer who is not certified by The Florida Bar or a national group an organization having substantially the same standards may be described to the public as a “specialist” or as “specializing.”

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RULE 4-8.6 PROFESSIONAL SERVICE CORPORATIONS AUTHORIZED BUSINESS ENTITIES

(a) Professional — Service—Corporations Authorized Business Entities. Lawyers may practice law in the form of professional service corporations, professional limited liability companies, or registered limited liability partnerships organized or qualified under the^ Florida'Statutes,-only if-when such corporations are-organized-all shareholders are legally qualified to-render legal services in this-state, end while-such corporation-and all shareholders, officers, directors, agents, and employees comply with the provisions-of-the Professional-Service-Gorporation Act-and the Rules Regulating The-Florida Bar applicable law. A professional service corporation, a professional limited liability company, or a registered limited liability partnership is an authorized business entity under these rules.

(b) Practice of Law Limited to Members of The Florida Bar. No professional service corporation authorized business enti-⅛ may engage in the practice of law in the state of Florida or render advice under or interpretations of Florida law except through officers, directors, partners, managers, agents, or employees who are qualified to render legal services in this state.

(c) Qualifications of Managers, Directors and Officers. No person shall serve as a partner, manager, director or executive officer of an professional service corporation authorized business entity an