In re Amendments to the Rules Regulating the Florida Bar (718 So. 2d 1179, 1998)

PER CURIAM.

This matter is before the Court on the petition of The Florida Bar for amendments to the Rules Regulating The Florida Bar. The petition is brought on the authority of the Board of Governors of The Florida Bar and invokes this Court’s exclusive jurisdiction of the discipline of persons admitted to the practice of law under article V, section 15 of the Florida Constitution.

Except for certain technical corrections, the proposed amendments were published in The Florida Bar News on March 15, 1998. Comments have been filed by one respondent. The issue raised by the comments will be discussed briefly below, as will the principal proposed amendments of a substantive nature.

RULES 1-L1 AND 2-8.3

The Florida Bar proposes that rule 1-4.1 of the Rules Regulating The Florida Bar be amended to eliminate the requirement of four representatives on the Board of Governors for nonresident members. Instead, the proposed rule would provide that there be at least one representative for each circuit and one for the nonresident members, with the representation of the respective circuits and nonresident members apportioned according to population. Coordinating with the proposed amendments to rule 1-4.1, the Bar proposes to amend rule 2-3.3, providing in proposed new subdivision 2 — 3.3(a) that the definition of “circuit” shall include “a hypothetical out-of-state judicial circuit with a circuit population equal to 50% of the number of members of The Florida Bar in good standing residing outside the state of Florida.” The hypothetical out-of-state circuit with an attorney population equal to fifty percent of the nonresident Florida Bar membership is then to be an element of the apportionment formula for circuit representation on the Board of Governors described in revised rule 2 — 3.3(b).

We have considered the response filed by David P. Frankel, a nonresident member of The Florida Bar. Mr. Frankel argues that the proposed provisions on representation of nonresident members on the Board of Governors are inadequate and do not provide fair representation. Currently, rule 1-4.1 provides that there will be four governors representing the bar members residing outside the State of Florida. The amendment to rule 1-4.1 eliminates this provision, substituting a provision for at least one representative for each circuit and one from the nonresident members. The amendment to rule 2-3.3 treats the nonresident membership as a separate “circuit” for board representation purposes, with a population equal to fifty percent of the total number of nonresident members of the bar. In Florida Bar re Amendments to Rules Regulating The Florida Bar, 697 So.2d 115, 116-17 (Fla.1997), we approved an increase of the nonresident board representation to four members. The Florida Bar advises us that with the proposed amendments, the apportionment formula will maintain the current level of representation and allow for future reapportionment as member population ratios change. We therefore find that the proposed apportionment plan adequately provides for representation of nonresident members.

RULE 1-3.7(b)

The proposed amendments to rule 1 — 3.7(b) would change the provisions on payment of administrative and investigative costs in eon-nection with nondisciplinary reinstatements to membership. Rule 1-3.7 addresses reinstatement to membership in a nondisciplinary context, that is, reinstatement by the Board of Governors following voluntary resignation from the bar, suspension for delinquency in the payment of dues, or suspension for noncompliance with continuing legal education requirements. These “nondisciplinary” suspensions from membership are to be distinguished from suspensions imposed in disciplinary proceedings. The reinstatement procedures following disciplinary suspensions are more elaborate and are set forth in rule 3-7.10. The proposed amendments to rule 1-3.7(b) would eliminate the $500 deposit for investigative costs currently imposed in certain cases, but increase the administrative fee from $50 to $150. The proposal also would allow the Executive Director of The Florida Bar, with the concurrence of the Executive Committee of the Board of Governors, to adjust the administrative fee in specific cases for good cause shown. We find that the proposed amendments would eliminate an unnecessary burden currently being-imposed on some applicants, provide a justified increase in the administrative fee for reinstatement applications generally, and provide the Bar needed flexibility with regard to the costs of processing applications in specific eases. We therefore approve the proposed amendments.

RULES 3-7.6 AND 3-7.7

The Bar proposes that rule 3-7.6(1 )(1) be amended to eliminate the requirement that referee hearings in disciplinary proceedings at which testimony is taken be reported and the reports be transcribed. Instead, the proposed rule would require that a court reporter attend and “record” the testimony, transcribing it only if directed to do so by the referee or by one of the parties. The party requesting the transcript is to bear the cost of transcription, subject to the possibility of assessment in connection with the judgment ultimately rendered in the case.

The Bar proposes that rule 3~7.7(c)(2) be amended to provide that the party seeking review of a referee’s report must order transcripts of any hearings at which testimony was taken, file the transcripts with the court, and serve copies on the other party. Under the proposed amendment, failure to file and serve such transcripts will be cause for dismissal of the petition for review.

We find the proposed amendments to rules 3-7.6 and 3-7.7 to be appropriate and approve them.

RULE Jp-1.5

In chapter 4 of the Rules Regulating The Florida Bar, the Rules of Professional Conduct, the Bar proposes certain changes to rule 4 — 1.5(f)(4)(B), which deals with attorneys’ fees in cases of personal injury, property damage, death, or loss of services where the attorney’s compensation is contingent on recovery of a judgment or settlement. The rule currently establishes certain limits on the percentage of a recovery that can be agreed upon as an attorney’s fee in a contingent fee contract between a lawyer and a client. Percentage fees above these limits are considered presumptively excessive.

The proposed amendment to rule 4-1.5(f)(4)(B)(i)a., regarding cases settled for between $1 million and $2 million before an answer or demand for arbitration is filed or the time for filing same has expired, would reduce the percentage, of that portion of the recovery exceeding $1 million, above which a fee is presumed excessive from thirty percent to twenty percent. In cases settled before such time for more than $2 million, the proposed amendment would reduce the percentage of the portion over $2 million from twenty percent to fifteen percent.

The Bar further proposes amendments to rule 4 — 1.5(f)(4)(B)(i)c., governing cases where defendants admit liability at the time of filing their answers but demand trial on damages, where the recovery is between $1 million and $2 million. The proposed amendments increase the percentage of the portion over $1 million, above which a fee is presumed excessive, from twenty percent to thirty percent; and in such eases where the recovery exceeds $2 million, increases the percentage of the portion over $2 million, above which the fee is presumed excessive, from fifteen percent to twenty percent.

The Bar provides no explanation for either of these proposed changes to the rule. We are concerned about any proposed increases in the percentages of recovery. Accordingly, we decline to adopt the proposed amendments to subdivision (f)(4)(B) of rule 4-1.4 described above. We refer these proposed changes back to the Bar for further study and possible action by the Court at a later time.

CHAPTER 19

The Bar proposes a new Chapter 19, entitled “Center for Professionalism.” The new rules would establish, within the administrative structure of The Florida Bar, a center to promote standards of professionalism. The proposed rules include provisions on the center’s purposes, funding, staffing, and relationship to the Supreme Court Commission on Professionalism.

We applaud the Board of Governors and members of the Bar for the proposal to establish a Center for Professionalism. This proposal is responsive to the deeply felt concerns of many in the judiciary and the legal profession. It is in harmony with this Court’s recent initiative in creating the Commission on Professionalism. The proposed rule appropriately contemplates coordination of efforts between the two entities. We approve the proposed rules.

OTHER SUBSTANTIVE AMENDMENTS

The other proposed amendments, which we approve, are summarized as follows. In Chapter 1 of the Rules Regulating The Florida Bar, rule 1-3.8 is changed to provide that the Florida Rules of Civil Procedure are applicable to proceedings involving inventories of attorneys’ files.

In Chapter 2 (Bylaws), rule 2 — 3.2(d)(3) is amended to authorize Bar publications in electronic as well as print media; rule 2-3.2(d)(10) is amended to add “psychological problems” to the conditions for which programs of assistance to members are authorized; in rule 2-3.2(d), subdivisions (12) and (13) are added to authorize programs to enhance professionalism and provide information about the legal system; and, coordinating with the change to rule 2-3.2(d)(10), rule 2-9.11 is amended to provide that the program of assistance for addicted and chemically dependent members will also provide assistance to those suffering psychological problems affecting them professional performance.

In Chapter 3 (Rules of Discipline), rule 3-5.1(f) is amended to authorize permanent disbarment as a disciplinary sanction; rule 3-6.1 is amended to reorganize, clarify, and reform the terminology of the rules on the employment by law firms of suspended attorneys and disbarred and resigned former attorneys; rule 3-7.2(j), which requires notice to the Court of a member’s disbarment or suspension in another jurisdiction, is amended to require the same type of notice in cases where an attorney has been the subject of a disciplinary resignation or surrender of license in another jurisdiction; rale 3-7.3 is amended to authorize Bar counsel to seek the concurrence of the grievance committee chair in the dismissal of a disciplinary matter with a letter of advice as described elsewhere in the rules; rule 3-7.6(n) is amended to change the fee charged by The Florida Bar for reproduction of documents from $1 per page to an amount to be determined annually by the Executive Director; and rule 3-7.9(e) is amended to provide that the grievance committee, staff counsel, and designated reviewer, when considering a proposed consent judgment, should decide whether to recommend revocation or restriction of a respondent’s board certification.

In Chapter 4 (Rules of Professional Conduct), rule 4-1.5(f)(4)(B)(ii), providing for court approval of a fee contract where a client is unable to obtain counsel due to the restrictions imposed in the rule, is amended to change the reference to “the circuit court” to read “the court in which the matter would be filed” and to provide that if the court will not accept jurisdiction, relief may be sought in the circuit court where the cause of action arose; rule 4 — 1.5(f)(4)(U>)(iii), on court approval of division of fees among two or more attorneys or law firms, is amended to make changes similar to those in rule 4-1.5(f)(4)(B)(ii) in referring to the courts in which relief may be sought; in paragraph 7 of the Statement of Client’s Rights for Contingency Fees, advising of possible adverse consequences of losing a lawsuit, the words “costs and expenses” are added to “attorney’s fees” as items the client might be required to pay to the other side; rule 4-3.4 is amended by adding new subdivisions (g) and (h), which prohibit bringing or threatening criminal or disciplinary charges solely to gain advantage in a civil matter; and rule 4^5.1 on the duties and responsibilities of partners and supervisors is amended to expand the language to refer to proprietors, shareholders, members, officers, directors, and managers of “authorized business entities” as elsewhere defined in the rules and to include within the scope of the rule supervising attorneys in business firms and government agencies.

In Chapter 6 (Legal Education and Specialization Programs), rule 6 — 3.5(b) and (c) on certification criteria are amended to refer to “substantial engagement” in the practice of law rather than “full-time” legal practice; and rule 6-3.5(c)(6) is amended to reorganize and clarify provisions on the peer review process and to add character, ethics, and professionalism to the criteria to be considered in evaluating certification applications.

In Chapter 7 (Clients’ Security Fund), rule 7-2.3(c) is amended to state that neither a decision to pay a client’s claim, nor a partial payment of a claim, shall vest in the applicant a legal right to receive payment of the claim.

In Chapter 10 (Unlicensed Practice of Law), rule 10-4.1(d) is amended to provide that cii’cuit UPL committees can sit in panels of three, one of whom must be a nonlawyer; rule 10-7.1(c)(4), on injunctive relief proceedings before referees, is amended to allow memoranda of law instead of initial, response, and reply briefs to be filed in interlocutory review proceedings; and rules 10-7.1(d) and 10-7.2 are amended to allow mem-oranda of law instead of briefs in proceedings for review of referee reports on injunctive relief and contempt petitions.

In Chapter 17 (Authorized House Counsel), rule 17 — 1.5(a)(5) is amended to add disbarment or suspension by a court or agency of another state or by a federal court to the list of grounds for terminating authority to operate under the authorized house counsel rules.

The petition also proposes to change references to “annual dues” appearing throughout the rules to read “annual membership fees.” The petition states that these changes are necessary to conform to certain requirements in the Internal Revenue Code affecting the deductibility of business expenses.

Other proposed changes are purely technical, clarifying, or corrective of terminology. For example, in rule 2-9.8, the name of the Law Office Management Advisory Service is changed to “Law Office Management Assistance Service.” Rule 3-4.8 is deleted because it duplicates matter found in the Rules of Professional Conduct. There are other proposed changes of this kind that need not be discussed.

After careful consideration, we grant the petition to amend the rules except with respect to the provisions on presumptively excessive contingent fees in rule 4-1.5. We adopt the approved amendments as set forth in the appendix. New language is indicated by underscoring; deleted matter is indicated by struck-through type. These amendments shall take effect October 1,1998.

It is so ordered.

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

APPENDIX

RULE 1-3.2 MEMBERSHIP CLASSIFICATIONS

(a) Members in Good Standing. Members of The Florida Bar in good standing shall mean only those persons licensed to practice law in Florida who have paid annual membership fees or dues for the current year and who are not retired, resigned, delinquent, inactive, or suspended members. A practicing attorney of another state, in good standing, who has professional business in a court of record of this state may, upon motion, be permitted to practice for the purpose of such business upon such conditions as the court deems appropriate under the circumstances of the case.

(b) Conditionally Admitted Members. The Supreme Court of Florida may admit a person with a prior history of drug, alcohol, or psychological problems to membership in The Florida Bar and impose conditions of probation as the court deems appropriate upon that member. The period of probation shall be no longer than 3 years, or for such indefinite period of time as the court may deem appropriate by conditions in its order. The conditions may include, but not be limited to, participation in a rehabilitation program, periodic blood and urine analysis, periodic psychological examinations, or supervision by another member of The Florida Bar. The probation shall be monitored by The Florida Bar and the costs thereof shall be paid by the member on probation. A failure to observe the conditions of probation or a finding of probable cause as to conduct of the member committed during the period of probation may terminate the probation and subject the member to all available grievance procedures under the Rules of Discipline.

(c) Inactive Members. Inactive members of The Florida Bar shall mean only those members who have properly elected to be classified as inactive in the manner elsewhere provided.

Inactive members shall:

(1) pay annual dues membership fees as set forth in rule 1-7.3;

(2) be exempt from continuing legal education requirements;

(3) affirmatively represent their membership status as inactive members of The Florida Bar when any statement of Florida Bar membership is made;

(4) not hold themselves out as being able to practice law in Florida or render advice on matters of Florida law;

(5) not hold any position that requires the person to be a licensed Florida attorney;

(6) not be eligible for certification under the Florida certification plans;

(7) not vote in Florida Bar elections or be counted for purposes of apportionment of the board of governors;

(8) certify upon election of inactive status that they will comply with all applicable restrictions and limitations imposed on inactive members of The Florida Bar.

Failure of an inactive member to comply with all requirements thereof shall be cause for disciplinary action.

An inactive member may, at any time, apply for reinstatement to membership in good standing in the manner provided in rule 1-3.7.

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, membership 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.

RULE 1-3.6 DELINQUENT MEMBERS

Any person now or hereafter licensed to practice law in Florida who fails to pay dues membership fees or fails to comply with continuing legal education or basic skills course requirements shall be deemed a delinquent member. ' While occupying the status of a delinquent member, no person shall engage in the practice of law in Florida nor be entitled to any privileges and benefits accorded to members of The Florida Bar in good standing.

RULE 1-3.7 REINSTATEMENT TO MEMBERSHIP

(a) Eligibility for Reinstatement. Members who have retired, been delinquent in the payment of dues membership fees, or been delinquent in continuing legal education requirements for a period of time not in excess of 5 years are eligible for reinstatement under this rule. Time shall be calculated from the day of the retirement, dues membership fees delinquency, or continuing legal education delinquency.

Inactive members may also seek reinstatement under this rule.

(b) Petitions Required. A member seeking reinstatement must file a petition with the board of governors setting forth the reason for such resignation, retirement, or delinquency and showing good cause why the petition for reinstatement should be granted. The petition shall be on a form approved by the board of governors and the petitioner shall furnish such information on such form as the board of governors may require. The petition shall be accompanied by a nonrefundable reinstatement fee of $150? and pay-have retired or have been-delinquent for a peried-of-time-Ionger-than-g-years, ■■ a $500 cost'deposit for-investigation of the petition unless adjusted by the executive director with concurrence of the executive committee for good cause shown. Inactive members shall not be required to pay the reinstatement fee or-cost deposit. No member shall be reinstated if, from the petition or from investigation conducted, the petitioner is not of good moral character and morally fit to practice law or if the member is delinquent in compliance with the continuing legal education or basic skills course requirements.

(c) Members Who Have Retired or Been Delinquent for 3 Years or Less. Members who have retired or been delinquent for 3 years or less may be reinstated by the executive director or the executive director may refer their petition to the board of governors.

(d) Members Who Have Retired or Been Delinquent for Less Than 5 Years, But More Than 3 Years. Members who have retired or been delinquent for less than 5 years, but more than 3 years, shall have completed 10 hours of continuing legal education courses for each year or portion thereof that the member had retired or was deemed delinquent. Final action of the board of governors denying a petition for reinstatement may be reviewed upon petition to the Supreme Court of Florida.

(e) Members Who Have Retired or Been Delinquent for 5 Years or More. Members who have retired or have been deemed delinquent for a period of 5 years or longer shall not be reinstated except upon application to and approval by the Florida Board of Bar Examiners.

(f) Members Delinquent 60 Days or Less. Reinstatement from dues membership fees delinquency accomplished within 60 days from the date of delinquency shall be deemed to relate back to the date before the delinquency. Any member reinstated within the 60-day period shall not be subject to disciplinary sanction for practicing law in Florida during that time.

(g) Inactive Members. Inactive members may be reinstated to membership in good standing by the board of governors by petition filed with the executive director, in the form and as provided in (b) above, except:

(1) If the member has been inactive for greater than 5 years, but has been authorized to and either actively practiced law in another jurisdiction for the entire period of time or held a position that requires a license as an attorney, the member shall be required to complete the Florida Law Update continuing legal education course as part of continuing legal education requirements.

(2) If the member has been inactive for greater than 5 years and has been authorized to but has not actively practiced law in another jurisdiction or held a position that requires a license as an attorney for the entire period of time, the member shall be required to complete the basic skills course requirement and the 30-hour continuing legal education requirement.

(3) An inactive member shall not be eligible for reinstatement until all applicable con-timing legal education requirements have been completed and the remaining portion of dues of membership fees for members in good standing for the current fiscal year have been paid.

RULE 1-3.8 RIGHT TO INVENTORY

(a) Appointment; Grounds; Authority. Whenever an attorney is suspended, disbarred, becomes a delinquent member, abandons a practice, disappears, or dies, and no partner, personal representative, or other responsible party capable of conducting the attorney’s affairs is known to exist, the appropriate circuit court, upon proper proof of the fact, may appoint an attorney or attorneys to inventory the files of the subject attorney (hereinafter referred to as “the subject attorney”) and to take such action as seems indicated to protect the interests of clients of the subject attorney.

(b) Maintenance of Attorney-Client Confidences. Any attorney so appointed shall not disclose any information contained in files so inventoried without the consent of the client to whom such file relates except as necessary to carry out the order of the court that appointed the attorney to make the inventory.

(c) Status and Purpose of Inventory Attorney. Nothing herein creates an attorney and client, fiduciary, or other relationship between the inventory attorney and the subject attorney. The purpose of appointing an inventory attorney is to avoid prejudice to clients of the subject attorney and, as a secondary result, prevent or reduce claims against the subject attorney for such prejudice as may otherwise occur.

(d) Rules of Procedure. The Florida Rules of Civil Procedure are applicable to proceedings under this rule.

1-4. BOARD OF GOVERNORS

RULE 1-4.1 COMPOSITION OF BOARD OF GOVERNORS

The board of governors shall be the governing body of The Florida Bar. It shall have 52 members, 51 of whom shall be voting members, and shall consist of the president and the president-elect of The Florida Bar, president and president-elect (who shall vote only in the absence of the president) of the young lawyers division, 4 representafives-of the members of -The. Florida Bap-fa good standing residing outside-of the state of Florid% representatives elected by and from the members of The Florida Bar in good standing; in each judicial circuit, and 2 residents of the state of Florida who are not members of The Florida Bar. There shall be at least 1 or more such-eircuit representatives from each judicial circuit and at least 1 representative from among the members in good standing residing outside of the state of Florida, who all of whom shall be apportioned among and elected from the judicial circuits and the nonresident membership, on the basis of the number of members in good standing residing in each circuit and outside of the state. The formula for determining the number of additional-circuit representatives apportioned to and elected from each judicial circuit and the nonresident membership, and all other matters concerning election and term of office for members of the board of governors, shall be prescribed in chapter 2.

1_7. DUES MEMBERSHIP FEES AND FISCAL CONTROL

RULE 1-7.3 DUES MEMBERSHIP FEES

(a) Dues Membership Fees 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 classified as inactive members pursuant to rule 3-7.13, shall pay annual dues membership fees to The Florida Bar in the amount set by the budget, provided that the board of governors shall not fix the dues membership fees at more than $190 per an-num. At the time of the payment of dues membership fees 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 Membership fees 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 Membership Fees. Persons admitted to The Florida Bar subsequent to July 1 of any fiscal year shall pay the annual dues membership fees 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 membership fees shall result in the amount of such prorated dues membership fees being added to the next annual dues membership fees billing to the member without penalty. The combined prorated and annual dues membership fees 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 Membership Fees. Members of The Florida Bar may elect to pay annual dues membership fees in three 3 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 membership fees 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 unless adjusted by the executive director with concurrence of the executive committee for good cause shown.

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

Each member who elects to pay annual dues membership fees 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 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 membership fees statement and payment of the prescribed annual dues membership fees. 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.

Dues Membership fees 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 Membership Fees. Payment of annual dues membership fees must be postmarked no later than August 15. Dues Membership fees payments postmarked after August 15 shall be accompanied by a late charge of $25 unless adjusted by the executive director with concurrence of the executive committee for good cause shown. The executive director shall send written notice by registered or certified mail to the last official bar address of each member whose dues membership fees have not been paid by August 15. Upon failure to pay dues membership fees and any late charges by September 30, unless adjusted by the executive director with concurrence of the executive committee for good cause shown, the member shall be a delinquent member.

BYLAW 2-3.2 POWERS

(a) Authority of Board; Supervision by Court. Subject to the continued direction and supervision by the Supreme Court of Florida, the board of governors may, by amendment to this chapter, take all necessary action to make nominations and appointments where authorized, support the Florida Bar Foundation, and create or abolish programs.

(b) Nomination and Appointment by Board. The board of governors may make nominations to or appointments to associations or other entities as required by the Rules Regulating The Florida Bar, this chapter, and any rules or policies adopted by the board of governors in accordance therewith or as required by law.

(c) Florida Bar Foundation. The board of governors may support the foundation known as The Florida Bar Foundation for charitable, scientific, literary, and educational purposes.

(d) Programs. The board of governors may establish, maintain, and supervise:

(1) a lawyer referral service;

(2) programs for providing continuing legal education for its members;

(3) the publication of a newspaper,, a-magazine, and other-publications production of various print or electronic media for its members, affiliates, and the public;

(4) a program for providing information and advice to the courts and all other branches of government concerning current law and proposed or contemplated changes in the law;

(5) a program of cooperation with the faculty of accredited Florida law schools;

(6) a program for providing pre-paid legal services;

(7) a program for providing advice and educational information to members of the bar concerning the operation and management of law offices;

(8) programs for promoting and supporting the bar’s public service obligations and activities, including, but not limited to, pro bono services support and law related education;

(9) programs for the development and provision of benefits and services to bar members, including, but not limited to, insurance benefits and association member discounts on goods and services;

(10) a program or funding for a program to provide for identification of and assistance to members of The Florida Bar who are chemically dependent or-addicted suffer from impairment related to chemical dependency

or psychological problems; and

(11) a program for providing enhanced opportunities and participation in the profession to minority members of the bar*;

(12) a program to enhance the levels of professionalism within the courts, law schools, and the legal profession; and

(13) programs for providing information or discussion about lawyers and the legal system.

BYLAW 2-3.3 FORMULA FOR APPORTIONMENT OF MEMBERS OF

BOARD OF GOVERNORS

(a) Nonresident Representation. As used in these bylaws, “judicial circuit” and “circuit” shall include a hypothetical out-of-state judicial circuit with a circuit population equal to 50% of the- number of members of The Florida Bar in good standing residing outside of the State of Florida.

(b) Apportionment Formula. The formula for determining the number of representatives apportioned to and elected from each judicial circuit shall be as follows:

(a) Determination of Median ‘Circuit Population» (1) Determination of Median Circuit Population. Determine the median number of members in good standing resid- • ing in the judicial circuits (“the median circuit population”) by ranking the judicial circuits in order of the number of members in good standing residing in each circuit and determining the number of members in good standing residing in the judicial circuit that is ranked exactly midway between the circuit with the largest number of members and the circuit with the smallest number of members or, if there is an even number of circuits, calculating the average membership of the 2 circuits that are ranked midway between the circuit with the largest number of members and the circuit with the smallest number of members.

(b-)-Appor-tionment~of -Members Among the-Judicial Circuits, (2) Apportionment of Representatives Among the Judicial Circuits. Apportion representatives among the judicial circuits by assigning to each judicial circuit the number of representatives equal to the quotient obtained by dividing the number of members in good standing residing in that circuit by the median circuit population and rounding to the nearest whole number.

(c) Determination of Deviation From Median-Circuit Population, (3) Determination of Deviation From Median Circuit Population. Determine the relative deviation of each circuit’s proportionate representation from the median circuit population by (4)(A) calculating the number of resident members per representative so apportioned, rounded to the nearest whole number, (2)(B) subtracting from that number the median circuit population, (3)(C) dividing the difference by the median circuit population, and (4)(D) converting the quotient so obtained to the equivalent percentile.

(d-)^Adjustment to- Deviation From Median Circuit Population. (4) Adjustment to Deviation From Median Circuit Population. Determine whether each circuit’s relative deviation from the median circuit population would be reduced by adding or subtracting 1 representative, and, if so, add or subtract 1 representative as indicated.

(e) Minimum — Guaranteed—Representatives, (5) Minimum Guaranteed Representatives. Assign 1 representative to each judicial circuit not otherwise qualifying for a representative under the calculations made in subdivisions (a)(1) and (b)(2).

(f) Reduction in Number of Representatives to Maintain-Maaámum-Board- Size. (6) Increase or Reduction in Number of Representatives to Achieve Required Board Size. If the total number of representatives assigned to the judicial circuits as a result of the steps set forth in subdivisions (a)(1) through -(e)(5), when added to the number of officers and other representatives who are members of the board by virtue of the provisions of rule 1-4.1, would result in a board of mere greater or fewer than 51 voting persons, increase or reduce the number of voting members of the board to exactly 51 voting persons by (1)(A) determining which judicial circuit among those to which more than 1 representative has been apportioned would have the smallest relative deviation from the median circuit population after the gain or loss of 1 representative, (2)(B) adding or subtracting 1 representative from that circuit, as indicated, and (3)(C) repeating those 2 steps as necessary until the total number of voting board members is increased or reduced to exactly 51.

BYLAW 2-6.8 DUES MEMBERSHIP FEES

The dues-of membership fees for members of The Florida Bar shall be included in the proposed budget filed by The Florida Bar in the Supreme Court of Florida.

BYLAW 2-9.3 LEGISLATIVE POLICIES

(a) Adoption of Rules of Procedure and Legislative Positions. The board of governors shall adopt and may repeal or amend rules of procedure governing the legislative activities of The Florida Bar in the same manner as provided in bylaw 2-9.2; provided, however, that the adoption of any legislative position shall require the affirmative vote of two-thirds of those present at any regular meeting of the board of governors or two-thirds of the executive committee or by the president, as provided in the rules of procedure governing legislative activities.

(b) Publication of Legislative Positions. The' Florida Bar shall publish notice of adoption of legislative positions in The Florida Bar News, in the issue immediately following the board meeting at which the positions were adopted.

(c)Objection to Legislative Positions of The Florida Bar.

(1) Any member in good standing of The Florida Bar may, within 45 days of the date of publication of notice of adoption of a legislative position, file with the executive director a written objection to a particular position on a legislative issue. The identity of an objecting member shall be confidential unless made public by The Florida Bar or any arbitration panel constituted under these rules upon specific request or waiver of the objecting member. Failure to object within this time period shall constitute a waiver of any right to object to the particular legislative issue.

(2) After a written objection has been received, the executive director shall promptly determine the pro rata amount of the objecting member’s dues membership fees at issue and such amount shall be placed in escrow pending determination of the merits of the objection. The escrow figure shall be independently verified by a certified public accountant.

(3) Upon the deadline for receipt of written objections, the board of governors shall have 45 days in which to decide whether to give a pro rata refund to the objecting member(s) or to refer the action to arbitration.

(4) In the event the board of governors orders a refund, the objecting member’s right to the refund shall immediately vest although the pro rata amount of the objecting member’s dues membership fees at issue shall remain in escrow for the duration of the fiscal year and until the conclusion of The Florida Bar’s annual audit as provided in bylaw 2-6.16, which shall include final independent verification of the appropriate refund payable. The Florida Bar shall thereafter pay the refund within 30 days of independent verification of the amount of refund, together with interest calculated at the statutory rate of interest on judgments as of the date the objecting member’s dues membership fees at issue were received by The Florida Bar, for the period commencing with such date of receipt of the dues membership fees and ending on the date of payment of the refund by The Florida Bar.

(d) Composition of Arbitration Panel. Objections to legislative positions of The Florida Bar may be referred by the board of governors to an arbitration panel comprised of 3 members of The Florida Bar, to be constituted as soon as practicable following the decision by the board of governors that a matter shall be referred to arbitration.

The objecting member shall be allowed to choose 1 member of the arbitration panel, The Florida Bar shall appoint the second panel member, and those 2 members shall choose a third member of the panel who shall serve as chair. In the event the 2 members of the panel are unable to agree on a third member, the chief judge of the Second Judicial Circuit of Florida shall appoint the third member of the panel.

(e) Procedures for Arbitration Panel.

(1) Upon a decision by the board of governors that the matter shall be referred to arbitration, The Florida Bar shall promptly prepare a written response to the objection and serve a copy on the objecting member. Such response and objection shall be forwarded to the arbitration panel as soon as the panel is properly constituted. Venue for any arbitration proceedings conducted pursuant to this rule shall be in Leon County, Florida; however, for the convenience of the parties or witnesses or in the interest of justice, the proceedings may be transferred upon a majority vote of the arbitration panel. The chair of the arbitration panel shall determine the time, date, and place of any proceeding and shall provide notice thereof to all parties. The arbitration panel shall thereafter confer and decide whether The Florida Bar proved by the greater weight of evidence that the legislative matters at issue are constitutionally appropriate for funding from mandatory Florida Bar dues membership fees.

(2) The scope of the arbitration panel’s review shall be to determine solely whether the legislative matters at issue are within those acceptable activities for which compulsory dues membership fees may be used under applicable constitutional law.

(3) The proceedings of the arbitration panel shall be informal in nature and shall not be bound by the rules of evidence. If requested by an objecting member who is a party to the proceedings, that party and counsel, and any witnesses, may participate telephonically, the expense of which shall be advanced by the requesting party. The decision of the arbitration panel shall be binding as to the objecting member and The Florida Bar. If the arbitration panel concludes the legislative matters at issue are appropriately funded from mandatory dues membership fees, there shall be no refund and The Florida Bar shall be free to expend the objecting member’s pro rata amount of dues membership fees held in escrow. If the arbitration panel determines the legislative matters at issue are inappropriately funded from mandatory dues membership fees, the panel shall order a refund of the pro rata amount of dues membership fees to the objecting member.

(4) The arbitration panel shall thereafter render a final written report to the objecting member and the board of governors within 45 days of its constitution.

(5) In the event the arbitration panel orders a refund, the objecting member’s right to the refund shall immediately vest although the pro rata amount of the objecting member’s dues membership fees at issue shall remain in escrow until paid. Within 30 days of independent verification of the amount of refund, The Florida Bar shall provide such refund together with interest calculated at the statutory rate of interest on judgments as of the date the objecting member’s dues membership fees at issue were received by The Florida Bar, for the period commencing with such date of receipt of the dues membership fees and ending on the date of payment of the refund by The Florida Bar.

(6) Each arbitrator shall be compensated at an hourly rate equal to that of a circuit court judge based on services performed as an arbitrator pursuant to this rule.

(7) The arbitration panel shall tax all legal costs and charges of any arbitration proceeding conducted pursuant to this rule, to include arbitrator expenses and compensation, in favor of the prevailing party and against the nonprevailing party. When there is more than one party on one or both sides of an action, the arbitration panel shall tax such costs and charges against nonprevailing parties as it may deem equitable and fair.

(8)Payment by The Florida Bar of the costs of any arbitration proceeding conducted pursuant to this bylaw, net of costs taxed and collected, shall not be considered to be an expense for legislative activities, in calculating dues the amount of membership fees refundsed pursuant to this bylaw.

BYLAW 2-9.8 LAW OFFICE MANAGEMENT ADVISORY ASSISTANCE SERVICE

The board of governors hereby creates the law office management advisory assistance service and shall adopt standing board policies, as provided in bylaw 2-9.2, that shall govern the operation of the service.

BYLAW 2-9.11 ASSISTANCE TO MEMBERS ADDICTED -TO OR DEPENDENT -UPON SUFFERING FROM IMPAIRMENT RELATED TO CHEMICALS- DEPENDENCY OR PSYCHOLOGICAL PROBLEMS

The Florida Bar shall create or fund a program for the identification of its members who are addicted to or dependent upon chemicals suffer from impairment related to chemical dependency or psychological problems which affect them professional performance or practice of law, and the assistance of those members in overcoming such addictions or dependencies^ or problems.

RULE 3-4,8 RESPONDENT’S OBLIGATION TO RESPOND

Any-member-ef The Florida Bar who-is the-subjeet of an investigation under-the Rules ■■ Begulating-The Florida Bar shall re-spondan writing,-to all investigative inquiries made by bar counsel or grievance committees, and as elsewhere required in the Rules Regulating The Florida Bar. The required response may invoke any proper privilege,-immunity, or-disability available to the mem-

3-5. TYPES OF DISCIPLINE

RULE 3-5.1 GENERALLY

A judgment entered, finding a member of The Florida Bar guilty of misconduct, shall include one or more of the following disciplinary measures:

(a) Admonishments. A Supreme Court of Florida order finding minor misconduct and adjudging an admonishment may direct the respondent to appear before the Supreme Court of Florida, the board of governors, grievance committee, or the referee for administration of the admonishment. A grievance committee report and finding of minor misconduct or the board of governors, upon review of such report, may direct the respondent to appear before the board of governors or the grievance committee for administration of the admonishment. A memorandum of administration of an admonishment shall thereafter be made a part of the record of the proceeding.

(b) Minor Misconduct. Minor misconduct is the only type of misconduct for which an admonishment is an appropriate disciplinary sanction.

(1)Criteria. In the absence of unusual circumstances misconduct shall not be regarded as minor if any of the following conditions exist:

(A) the misconduct involves misappropriation of a client’s funds or property;

(B) the misconduct resulted in or is likely to result in actual prejudice (loss of money, legal rights, or valuable property rights) to a client or other person;

(C) the respondent has been publicly disciplined in the past 3 years;

(D) the misconduct involved is of the same nature as misconduct for which the respondent has been disciplined in the past 5 yeai’s;

(E) the misconduct includes dishonesty, misrepresentation, deceit, or fraud on the part of the respondent; or

(F)the misconduct constitutes the commission of a felony under applicable law.

(2) Discretion of Grievance Committee. Despite the presence of 1 or more of the criteria described in subdivision (1) above, a grievance committee may recommend an admonishment for minor misconduct or diversion to a practice and professionalism enhancement program when unusual circumstances are present. When the grievance committee recommends an admonishment for minor misconduct or diversion to a practice and professionalism enhancement program under such circumstances, its report shall contain a detailed explanation of the circumstances giving rise to the committee’s recommendation.

(3) Recommendation of Minor Misconduct. If a grievance committee finds the respondent guilty of minor misconduct or if the respondent shall admit guilt of minor misconduct and the committee concurs, the grievance committee shall file its report recommending an admonishment, recommending the manner of administration, and for the taxing of costs against the respondent. 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 report is not referred to the disciplinary review committee by the designated reviewer (as provided in rule 3 — 7.5(b)), the report shall then be served on the respondent by bar counsel. The report and finding of minor misconduct shall become final unless rejected by the respondent within 15 days after service of the report. 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. If the report of minor misconduct is not rejected by the respondent, notice of the finding of minor misconduct shall be given, in writing, to the complainant.

(4) Rejection of Minor Misconduct Reports. The rejection by the board of governors of a grievance committee report of minor misconduct, without dismissal of the case, or remand to the grievance committee, shall be deemed a finding of probable cause. The rejection of such report by a respondent shall be deemed a finding of probable cause for minor misconduct. Upon trial before a referee following rejection by a respondent of a report of minor misconduct, the referee may recommend any discipline authorized under these rules.

(5) Admission of Minor Misconduct. Within 15 days after a finding of probable cause by a grievance committee, a respondent may tender a written admission of minor misconduct to bar counsel or the grievance committee. An admission of minor misconduct may be conditioned upon acceptance by the grievance committee, but the respondent’ may not condition the admission of minor misconduct upon the method of administration of the admonishment or upon nonpayment of costs incurred in the proceedings. Such an admission may be tendered after a finding of probable cause (but before the filing of a complaint) only if such an admission has not been previously tendered. If the admission is tendered after a finding of probable cause, the grievance committee may consider such admission without further evidentiary hearing and may either reject the admission, thereby affirming its prior action, or accept the admission and issue its report of minor misconduct. If a respondent’s admission is accepted by the grievance committee, the respondent may not thereafter reject a report of the committee recommending an admonishment for minor misconduct. If the admission of minor misconduct is rejected, such admission shall not be considered or used against the respondent in subsequent proceedings.

(c) Probation. The respondent may be placed on probation for a stated period of time of not less than 6 months nor more than 3 years or for an indefinite period determined by conditions stated in the order. The judgment shall state the conditions of the probation, which may include but are not limited to the following: completion of a practice and professionalism enhancement program as provided elsewhere in these rules; supervision of all or part of the respondent’s work by a member of The Florida Bar; the making of reports to a designated agency; the satisfactory completion of a course of study or a paper on legal ethics approved by the Supreme Court of Florida; such supervision over fees and trust accounts as the court may direct. The respondent will also reimburse the bar for the costs of supervision. Failure to observe the conditions of the probation or a finding of probable cause as to conduct of the respondent committed during the period of probation shall terminate the probation. In such event, even though such finding of probable cause shall be made after the expiration of the period of probation, the judgment shall be reconsidered and an appropriate judgment shall be entered. On termination of probation for failure to observe the conditions of probation or on a finding of probable cause for misconduct committed during the period of probation, the attorney may be punished for contempt or suspended from the practice of law on petition by The Florida Bar, and any such suspension shall continue until the respondent may be reinstated to the practice of law as provided elsewhere in these rules.

(d) Public Reprimand. A public reprimand shall be administered in the manner prescribed in the judgment but all such reprimands shall be reported in the Southern Reporter. Due notice shall be given to the respondent of any proceeding set to administer the reprimand. The respondent shall appear personally before the Supreme Court of Florida, the board of governors, any judge designated to administer the reprimand, or the referee, if required, and such appearance shall be made a part of the record of the proceeding.

(e) Suspension. The respondent may be suspended from the practice of law for a definite period of time or an indefinite period thereafter to be determined by the conditions imposed by the judgment. During such suspension the respondent shall continue to be a member of The Florida Bar but without the privilege of practicing, and, upon the expiration of the suspension period and the satisfaction of all conditions accompanying the suspension, the respondent shall become eligible to all of the privileges of members in The Florida Bar. A suspension of 90 days or less shall not require proof of rehabilitation or passage of the Florida bar examination. A suspension of more than 90 days shall require proof of rehabilitation and may require passage of all or part of the Florida bar examination. No suspension shall be ordered for a specific period of time in excess of 3 years.

(f) Disbarment. A judgment of disbarment terminates the respondent’s status as a member of the bar. Permanent disbarment shall preclude readmission. A former member who has not been permanently disbarred may only be admitted again upon full compliance with the rules and regulations governing admission to the bar. Except as might be otherwise provided in these rules, no application for admission may be tendered within 5 years after the date of disbarment or such longer period as the court might determine in the disbarment order.

(g) Notice to Clients. Upon service on the respondent of an order of disbarment, suspension, resignation for cause, emergency suspension, or placement on the inactive list, the respondent shall, unless this requirement is waived or modified in the court’s order, forthwith furnish a copy of the order to all of the respondent’s clients with matters pending in the respondent’s practice, and within 30 days after service of the order the respondent shall furnish staff counsel of The Florida Bar with a sworn affidavit listing the names and addresses of all clients who have been furnished copies of the order.

(h) Forfeiture of Fees. An order of the Supreme Court of Florida or a report of minor misconduct adjudicating a respondent guilty of entering into, charging, or collecting a fee prohibited by the Rules Regulating The Florida Bar may order the respondent to forfeit the fee or any part thereof. In the case of a clearly excessive fee, the excessive amount of the fee may be ordered returned to the client, and a fee otherwise prohibited by the Rules Regulating The Florida Bar may be ordered forfeited to The Florida Bar Clients’ Security Fund and disbursed in accordance with its rules and regulations.

(i) Restitution. In addition to any of the foregoing disciplinary sanctions and any disciplinary sanctions authorized elsewhere in these rules, the respondent may be ordered or agree to pay restitution to a complainant or other person if the disciplinary order finds that the respondent has received a clearly excessive, illegal, or prohibited fee or that the respondent has converted trust funds or property. In such instances the amount of restitution shall be specifically set forth in the disciplinary order or agreement and shall not exceed the amount by which a fee is clearly excessive, in the case of a prohibited or illegal fee shall not exceed the amount of such fee, or in the case of conversion shall not exceed the amount of the conversion established in disciplinary proceedings. The disciplinary order or agreement shall also state to whom restitution shall be made and the date by which it shall be completed. Failure to comply with the order or agreement shall not preclude further proceedings under these, rules.

(j) Disciplinary Resignation. A respondent may be allowed to resign membership in The Florida Bar in lieu of defending against allegations of disciplinary violations. If accepted by the Supreme Court of Florida, a disciplinary resignation terminates the respondent’s status as a member of the bar. A former member whose disciplinary resignation has been accepted may only be admitted again upon full compliance with the rules and regulations governing admission to the bar. Except as otherwise provided in these rules, no application for admission may be tendered within 3 years after the date of the order of the Supreme Court of Florida that accepted the disciplinary resignation or such additional time as the respondent may have stated in the petition for disciplinary resignation. A petition that states that disciplinary resignation is without leave to apply for readmission shall preclude readmission to the bar.

3-6. EMPLOYMENT OF CERTAIN DISCIPLINED ATTORNEYS OR FORMER ATTORNEYS

RULE 3-6.1 GENERALLY

When attorneys have been placed on the inactive list, suspended, disbarred, or-allowed resignation pursaant-to -rule 3-7.12 by-order-of this court, -they -age ineligible to -practice law until reinstated-er-readmitted. — However,-this shall not preelude-a An lawyer, law firm, or professional association authorized business entity (as defined elsewhere in these rules) -&em- may employiag-the-suspended, disbarred-o