Amendments to the Rules Regulating the Florida Bar (763 So. 2d 1002, 2000)

Florida Supreme Court 2000-03-23

Citations

Full opinion text

PER CURIAM.

The Florida Bar, pursuant to Rule Regulating the Florida Bar 1-12.1, has filed its annual proposed changes to the Rules Regulating The Florida Bar. We have jurisdiction. Art. V, § 15, Fla. Const. The Board of Governors of The Florida Bar has approved all of the substantive changes presented in this petition; and all the proposals, except several purely technical revisions, were published for comment in accordance with rule l-12.1(g). Only two comments were filed.

After reviewing the petition, and considering the comments as well as the oral arguments, we adopt all the Bar’s proposed changes. Below we discuss each of the substantive changes as well as the two comments filed.

BYLAW 2-4.5 NOMINATIONS FOR PRESIDENT-ELECT

The amendment to bylaw 2^4.5 clarifies and revises certain allowable campaign activities and time periods applicable to individuals nominated as candidates for the office of president-elect and those seeking support for their nomination as candidates. Existing subdivisions are rearranged so that the rale initially authorizes the Board of Governors of The Florida Bar to adopt standing policies that govern the conduct of candidates for the office of president-elect and to create an oversight committee. Subdivisions are revised to make clear that campaigns for president-elect include distinct “nomination” and “election” phases. Problematic verbiage and terms that the Bar felt can be better defined and updated through its standing policies are deleted.

RULE 3-4.5 REMOVAL FROM JUDICIAL OFFICE BY THE SUPREME COURT OF FLORIDA

Rule 3^4.5 currently provides that whenever a judge is removed from office on the basis of a Judicial Qualifications Commission (JQC) proceeding, the removal order also may suspend the judge from the Florida Bar pending further proceedings. The rule as amended will allow the Bar to seek leave to intervene in any proceeding in which the JQC recommends that a judge be removed from office and to seek disciplinary action if intervention is granted and the judge is removed by the Court. We agree that allowing the Bar to intervene in these proceedings will further the apparent purpose of the constitutional provision-to streamline the system and ensure that judges who are guilty of misconduct are subject to attorney discipline, if appropriate, in a timely manner.

RULE 3-7.6 PROCEDURES BEFORE A REFEREE

The amendment to rule 3 — 7.6(j), Complaining Witness, allows a referee to permit a complaining witness to remain in the hearing room and observe the disciplinary hearing when the respondent is also present, unless it is found to be impractical due to unreasonable delay or other good cause. The amendment also confirms that the complaining witness is not a party to the disciplinary proceeding and has no right to appeal. This Court routinely receives inquiries from individuals who are unhappy with the Bar’s handling of their complaint against an attorney. Consistent with the Court’s standard response to such inquiries, this amendment makes clear that a complainant has no right to appeal in a Bar disciplinary proceeding.

RULE 3-7.13 INCAPACITY NOT RELATED TO MISCONDUCT

The amendment to rule 3-7.13 changes the procedure for reinstatement after placement on the inactive list for incapacity not related to misconduct, from petition to the Board of Governors with no further action by the Court, to a petition to the Court which would be processed in the same manner as reinstatements after acts of misconduct. The Bar maintains that if an order of this Court is required for placement on the inactive list for reasons of incapacity, see R. Reg. Fla. Bar 3-7.13(a), an order of similar stature should be necessary to reinstate the attorney. According to the Bar, members seeking reinstatement under this rule often request such action by this Court.

One of the comments received addresses this amendment. Attorney John B. Bowman questions the propriety of requiring an incapacitated attorney to follow the same procedure for reinstatement as an attorney found guilty of misconduct. Mr. Bowman is concerned that this might create the perception that mental or physical incapacity is akin to misconduct. Mr. Bowman also points out that, under the rules that apply to reinstatements after acts of misconduct, the attorney can be subjected to, among other things, making financial disclosures unrelated to his or her condition, appearing before a referee for a full hearing, and paying costs for the proceedings. Therefore, he fears that the proposed change will discourage attorneys who need help from seeking it because doing so could result in a lengthy reinstatement proceeding.

At oral argument, counsel for the Bar explained that the incapacity not related to misconduct rule is a part of the rules of discipline and that most attorneys who go on the inactive list under the rule do so in connection with a disciplinary investigation and agree to go on the inactive list in order to settle the matter. Under the current rule, the Board can simply approve or reject the request for reinstatement; there are no standards or procedures for considering the petition. The only procedure provided for by the current rule is review by this Court should the Board reject the petition for reinstatement. Although the current rule does not provide for an order of reinstatement from this Court, an informal procedure has developed where once the Board approves reinstatement, the Bar files a notice of reinstatement with this Court requesting an order approving the Board’s action nunc pro tunc. This amendment offers standards and procedures for considering these petitions for reinstatement which are lacking under the current rule. As Bar counsel pointed out at oral argument, there also are summary procedures that can be followed if the Bar does not oppose reinstatement. See R. Reg. Fla. Bar 3-7.10(h)(4) (providing that Bar can stipulate to reinstatement if, after the completion of discovery, bar counsel is unable to discover evidence on which denial of reinstatement may be based). Moreover, a request or agreement to go on the inactive list under rule 3-7.13 is processed in the same manner as proceedings involving acts of misconduct. See R. Reg. Fla. Bar 3-7.13(a). Therefore, it is only logical that petitions for reinstatement be processed in a similar fashion. While it is true that the amendment to rule 3-7.13 will result in a more complex procedure for processing petitions for reinstatement under the rule, we agree with the Bar that, under the circumstances, clear standards and procedures for reviewing these petitions are preferable to the current state of affairs. However, we caution the Bar that the best of the prior, informal system should be retained, and the creation of a more formal system should not result in the needless expenditure of resources by an affected attorney, the Bar or this Court.

RULE 3-7.16 LIMITATION ON TIME TO BRING COMPLAINT

New subdivision (d) of rule 3-7.16 requires that inquiries or complaints about the conduct of a constitutional officer who is required to be a member in good standing of The Florida Bar be commenced within six years after the individual leaves office. The new subdivision clarifies the length of time the Bar has to bring disciplinary action against a former judge or other constitutional officer who while in office must be a member in good standing of The Florida Bar and makes clear that a limitation similar to the six-year time limit contained in subdivision (a) would not commence until a constitutional officer vacates office.

RULE 4-1.5 FEES FOR LEGAL SERVICES

The Board of Governors has amended the comment to rule 4-1.5 to provide that contingent fees are prohibited in criminal and certain domestic relations matters and that so-called “results oriented” or “bonus” fees in domestic relations cases have been held to be impermissible contingency fees. The committee offers the commentary to provide better notice of what types of fee arrangements are considered impermissible under the Rules Regulating the Florida Bar.

SUBCHAPTER 6-22. STANDARDS FOR CERTIFICATION OF A BOARD CERTIFIED ANTITRUST AND TRADE REGULATION LAWYER

New subchapter 22 of chapter 6, Legal Specialization and Education Programs, sets forth standards for establishing a new board certification in the field of antitrust and trade regulation law. It is the result of what the Board felt was “sufficient member interest” and is patterned after other approved areas of practice under chapter 6.

SUBCHAPTER 6-23. STANDARDS FOR CERTIFICATION OF BOARD CERTIFIED LABOR AND EMPLOYMENT LAWYER

New subchapter 23 of chapter 6 sets forth standards for establishing a new board certification in the field of labor and employment law. It also is the result of sufficient member interest and is patterned after other approved areas of practice.

One of the comments filed with the Court addresses this proposal. Attorney Charles S. Caulkins is concerned that the proposed certification process contemplates a single certification in labor and employment law, when “labor” and “employment” are distinct fields of practice and most “labor and employment” attorneys practice almost exclusively employment law. According to Mr. Caulkins, these attorneys have little or no experience in traditional labor law, which includes such things as collective bargaining and proceedings before the National Labor Relations Board. He fears that allowing an attorney without experience in labor law to represent herself as a “board certified” expert in employment and labor law would be misleading to the public. Mr. Caulkins raises some valid concerns; however, we are certain that in developing the standards for board certification the Labor and Employment Law Certification Committee considered the “realities” of this practice area. At oral argument, the Bar assured us that these standards will ensure competence in both labor and employment law. As defined in rule 6-23.2(a), this new certification area expressly “encompasses both public and private sector collective bargaining and the many state and federal laws that apply to the employment relationship,” including “the National Labor Relations Act.” The minimum standards for certification under rule 6-23.3(d) provide, among other things, that an applicant must submit the names and addresses of six attorneys who are familiar with the applicant’s practice and who can attest to the applicant’s special competence and substantial involvement in the field of labor and employment law. To demonstrate substantial involvement in the field of labor and employment law under rule 6-23.3(b), the applicant must submit a form questionnaire containing information concerning the frequency of the applicant’s work in the field of labor and employment law and the nature of the issues involved. Written or oral supplementation may be required by the certification committee. These rules would seem to safeguard against someone with no experience in labor law being certified in the field.

The Florida Bar Board of Legal Specialization and Education does an outstanding job in administering and overseeing Florida’s Lawyer Certification Plan. As part of the Board’s ongoing duties, at least annually it must review the status and conditions of the plan and report its conclusions to the Board of Governors. See R. Reg. Fla. Bar 6-3.1(h). The credibility of the certification program depends on the quality of the standards and testing employed in each certification area. In this regard, both the Board of Legal Specialization and Education and the Labor and Employment Law Certification Committee have a continuing obligation to review the minimum standards and testing procedures for certification to ensure that the certification process can be relied upon by the public. We are confident that, under the procedures for reviewing the certification plan, any inadequacies with the standards for this or any other certification area will be readily identified and corrected. Nevertheless, we thank Mr. Caulkins for bringing his concerns to our attention, and encourage him and other practitioners in this area to monitor the program and contact the Board or the Certification Committee should deficiencies be identified.

SUBCHAPTER 8-5 IMMUNITY

New subchapter 5 of chapter 8, Lawyer Referral Rule, gives absolute immunity from civil liability for all acts in the course of official duties to members, directors, officers, and staff of The Florida Bar Lawyer Referral Service and to local bar associations with a lawyer referral service. The new provision confers immunity similar to that conferred by rule 3-8.1(j) to members of the standing committee that administers the Bar grievance mediation group, and by rule 10-10.1 to the standing committee and circuit committees on the unauthorized practice of law.

RULE 10-3.2 DUTIES OF THE STANDING COMMITTEE

New subdivision (b)(6) of rule 10-3.2 authorizes the standing committee on the unauthorized practice of law (UPL) to impose a civil fine of up to $500 per incident in cases where a cease and desist affidavit and fine have been agreed to by a UPL respondent. Under this provision the standing committee may impose a fine only when the respondent has entered into an agreement that includes the imposition of a fine. It is hoped that this will provide the standing committee greater flexibility in the resolution of cases, including a penalty short of criminal contempt. The remainder of the changes to rule 10-3.2 involve reorganizing the various duties of the standing committee among the various subdivisions.

RULE 10-4.1 (CIRCUIT COMMITTEES) GENERALLY

The amendments to rule 10-4.1 complement the proposed changes to rule 10-3.2, Duties of the Standing Committee. The amendment clarifies that a circuit committee may close cases and may resolve eases through acceptance of a cease and desist affidavit, unless staff counsel objects. It moves subdivision (c)(3), regarding litigation recommendations, to subdivision (c)(4) and clarifies that litigation recommendations must be reviewed by the standing committee. Language is added to subdivision (c)(3) to allow circuit committees to forward to staff counsel for review by the standing committee recommendations for closing cases by a cease and desist affidavit that includes a monetary penalty not to exceed $500 per incident.

RULE 10-6.3 RECOMMENDATIONS AND DISPOSITION OF COMPLAINTS

The amendment to rule 10-6.3(a) adds language authorizing circuit committees to forward reports to UPL staff counsel in those cases where a cease and desist affidavit and monetary penalty are recommended and clarifies that all recommendations for a cease and desist affidavit with a monetary penalty must be reviewed by the standing committee. These amendments conform circuit committee investigative procedures to the proposed changes in the authority of circuit committees and the statewide committee provided in rules 10-3.2 and 10-4.1.

RULE 10-7.1 PROCEEDINGS FOR INJUNCTIVE RELIEF

The amendment to rule 10 — 7.1(d)(1) allows a referee to recommend that this Court impose a civil penalty not to exceed $1000 per incident in proceedings for in-junctive relief.

RULE 10-7.2 PROCEEDINGS FOR INDIRECT CRIMINAL CONTEMPT

The amendment to rule 10-7.2 raises the possible fine in an indirect criminal contempt case from $500 to $2500 and changes the requirements for indigency to conform to recent amendments to section 27.52, Florida Statutes (1999).

RULE 14-5.3 (FEE ARBITRATION RULES OF PROCEDURE) IMMUNITY

New rule 14-5.3 provides general civil immunity to fee arbitration committee members, program arbitrators, and bar staff for actions taken within the scope of the fee arbitration program. It is similar to the immunity that is provided for members of grievance mediation program standing committees under rule 3-8.1(j) and UPL committee members under rule 10-10.1.

RULE 17-1.4 (AUTHORIZED HOUSE COUNSEL RULE) REGISTRATION

New subdivision (a)(2)(C) of rule 17-1.4 requires an authorized house counsel registrant to certify that he or she is not subject to a disciplinary proceeding or outstanding order of reprimand, censure, or disbarment for professional misconduct by the bar or courts of any jurisdiction at the time of application. This is consistent with the codified definition of an authorized house counsel found in rule 17-1.2(a).

RULE 18-1 MILITARY LEGAL ASSISTANCE COUNSEL RULE, GENERALLY

RULES 18-1.1 PURPOSE AND 18-1.5 CERTIFICATION

The amendments to rules 18-1.1 and 18-1.5 change references from “practice in Florida” to “practice before Florida courts.”

RULE 18-1.2 DEFINITIONS

The amendment to subdivision (a)(4) of rule 18-1.2 changes references to the “Bridge the Gap Seminar” to “Practicing with Professionalism Program.” The amendment to subdivision (d) revises the definition of authorized legal assistance client to conform eligibility requirements to the financial guidelines of the Legal Services Corporation, and to broaden the pool of potential program clients to include certain retirees and dependants, plus selected survivors of deceased active duty members.

RULE 18-1.3 ACTIVITIES

The amendment to rule 18-1.3 deletes the requirement that a separate written client/supervising attorney consent and approval be filed in each case and ih its place requires that all documents filed by a military legal assistance attorney include a notation that counsel is qualified under the rule and is a licensed attorney, indicating the jurisdiction to which the attorney is admitted and attorney’s bar number.

RULE 18-1.4 SUPERVISION AND LIMITATIONS

The amendment to subdivision (c)(1) of rule 18-1.4 .clarifies that authorized legal assistance attorneys may represent clients only in “residential” landlord-tenant disputes. The amendment to subdivision (c)(3) of the rule adds dissolution of marriage to the permitted areas of domestic relations representation and confirms that modifications of prior judgments or orders are allowable areas of domestic relations practice. The amendment to subdivision (c)(4) clarifies that authorized probate representation may include disposition of property without administration. The amendment to subdivision (c)(7) clarifies that the rule is not meant to limit applicable law regarding pro hac vice practice or other activities of foreign attorneys.

Accordingly, we amend the Rules Regulating The Florida Bar as reflected in the appendix. New language is indicated by underscoring; deletions are indicated by struck-through type. The comments are included for explanation and guidance only and are not adopted as an official part of the rules. The amendments shall take effect immediately.

It is so ordered.

HARDING, C.J., and SHAW, WELLS, ANSTEAD, PARIENTE, LEWIS and QUINCE, JJ., concur.

APPENDIX

BYLAW 2-4,5 NOMINATIONS FOR PRESIDENT-ELECT

(a) Policies. The Board of Governors of The Florida Bar is hereby authorized to adopt standing policies that govern the conduct of candidates and aspirants seeking support for their nomination as candidates, which shall include creation of a committee to oversee the conduct of such individuals and promulgation of sanctions for failure to comply with these rules or the policies adopted by authority hereof.

(b) Nominations Process. Any member of The Florida Bar in good standing may be nominated as a candidate for president-elect by petition signed by not fewer than 1 percent of the members of The Florida Bar in good standing. Such nominating petitions shall be ■ filed with the executive director at the headquarters office on or after November 15 and on or before 5:00 p.m., eastern time, December 15 of the year preceding the election. Nominees shall endorse their written acceptance upon such petition. In the event that no member of The Florida Bar in good standing shall be nominated, the board of governors shall thereafter nominate at least 1 candidate for the office of president-elect.

Except as otherwise specified in standing board policies, Nno mailings or solicitations shall be made prior to-No-ve-mbe-r ígcampaigning for the purposes of seeking support for the nomination of a candidate to the office of president-elect shall be conducted prior to November 15 of the year preceding the election.

(be) CampaignsElections Process. Campaigns by nominees for election to the office of president-elect shall not be conducted and electioneering or campaign activities-shall not commence until November 15 and shall end on March 21 as further specified in standing board policies. In the event of a runoff election, such activities may continue until April 22.

The board of governors of The Florida Bar is hereby' authorized to adopt; standing policies that govern the conduct' of-candidates,- — which shall include creation of a committee to oversee the -conduct of such candidates and promulgation of sanctions for failure to comply with these rules or the policies adopted by authority hereof.

RULE 3-4.5 REMOVAL FROM JUDICIAL OFFICE BY THE SUPREME COURT OF FLORIDA

Whenever a judge is removed from office by the Supreme Court of Florida on the basis of a Judicial Qualifications Commission proceeding, the removal order, when the record in such proceedings discloses the appropriate basis, may also order the suspension of the judge as an attorney pending further proceedings hereunder.

When the Judicial Qualifications Commission files a recommendation that a judge be removed from office, The Florida Bar may seek leave to intervene in the proceedings before the Supreme Court of Florida. If intervention is granted, The Florida Bar may seek disciplinary action in the event the judge is removed by the court.

RULE 3-7.6 PROCEDURES BEFORE A REFEREE

(a) Referees. The chief justice shall have the power to appoint referees to try disciplinary cases and to delegate to a chief judge of a judicial circuit the power to appoint referees for duty in the chief judge’s circuit. Such appointees shall ordinarily be active county or circuit judges, but the chief justice may appoint retired judges.

(b) Trial by Referee. When a finding has been made by a grievance committee or by the board that there is cause to believe that a member of The Florida Bar is guilty of misconduct justifying disciplinary action, and the formal complaint based on such finding of probable cause has been assigned by the chief justice for trial before a referee, the proceeding thereafter shall be an adversary proceeding that shall be conducted as hereinafter set forth.

(c) Venue. The trial shall be held in the county in which an alleged offense occurred or in the county where the respondent resides or practices law or last practiced law in Florida, whichever shall be designated by the Supreme Court of Florida; provided, however, that if the respondent is not a resident of Florida and if the alleged offense is not committed in Florida, the trial shall be held in a county designated by the chief justice.

(d) Style of Proceedings. All proceedings instituted by The Florida Bar shall be styled “The Florida Bar, Complainant, v. (name of respondent), Respondent,” and “In The Supreme Court of Florida (Before a Referee).”

(e) Nature of Proceedings.

(1) Administrative in Character. A disciplinary proceeding is neither civil nor criminal but is a quasi-judicial administrative proceeding. The Florida Rules of Civil Procedure apply except as otherwise provided in this rule.

(2) Discovery. Discovery shall be available to the parties in accordance with the Florida Rules of Civil Procedure.

(f) Bar Counsel. Bar counsel shall make such investigation as is necessary and shall prepare and prosecute with utmost diligence any case assigned. Assistant bar counsel shall serve under the general supervision of bar counsel.

(g) Pleadings. Pleadings may be informal and shall comply with the following requirements:

(1) Complaint; Consolidation and Severance.

(A) Filing. Staff counsel shall prepare the complaint and file the same in the Supreme Court of Florida.

(B) Content. The complaint shall set forth the particular act or acts of conduct for which the attorney is sought to be disciplined.

(C) Joinder of Charges and Respondents; Severance. A complaint may embrace any number of charges against 1 or more respondents, and charges may be against any 1 or any number of respondents; but a severance may be granted by the referee when the ends of justice require it.

(2) Answer and Motion. The respondent shall answer the complaint and, as a part thereof or by separate motion, may challenge only the sufficiency of the complaint and the jurisdiction of the forum. All other defenses shall be incorporated in the respondent’s answer. The answer may invoke any proper privilege, immunity, or disability available to the respondent. All pleadings of the respondent must be filed within 20 days of service of a copy of the complaint.

(3) Reply. If the respondent’s answer shall contain any new matter or affirmative defense, a reply thereto may be filed within 10 days of the date of service of a copy upon bar counsel, but failure to file such a reply shall not prejudice The Florida Bar. All affirmative allegations in the respondent’s answer shall be considered as denied by The Florida Bar.

(4) Disposition of Motions. Hearings upon motions may be deferred until the final hearing, and, whenever heard, rulings thereon may be reserved until termination of the final hearing.

(5) Filing and Service of Pleadings.

(A) Prior to Appointment of Referee. Any pleadings filed in a case prior to appointment of a referee shall be filed with the Supreme Court of Florida and shall bear a certificate of service showing parties upon whom service of copies has been made. On appointment of referee, the Supreme Court of Florida shall notify the parties of such appointment and forward all pleadings filed with the court to the referee for action.

(B) After Appointment of Referee. All pleadings, motions, notices, and orders filed after appointment of a referee shall be filed with the referee and shall bear a certificate of service showing service of a copy on the staff counsel of The Florida Bar and on all interested parties to the proceedings.

(6) Amendment. Pleadings may be amended by order of' the referee, and a reasonable time shall be given within which to respond thereto.

(7) Expediting the Trial. If- it shall be made to appear that the date of final hearing should be expedited in the public interest, the referee may, in the referee’s discretion, shorten the time for filing pleadings and the notice requirements as provided in this rule.

(8) Disqualification of Referee. Upon motion of either party, a referee may be disqualified from service in the same manner and to the same extent that a trial judge may be disqualified under existing law from acting in a judicial capacity. In the event of disqualification, the chief justice shall appoint a successor.

(h) Notice of Final Hearing. The cause may be set down for trial by either party or the referee upon not less than 10 days’ notice. The trial shall be held as soon as possible following the expiration of 10 days from the filing of the respondent’s answer, or if no answer is filed, then from the date when such answer is due.

(i) The Respondent. Unless the respondent claims a privilege or right properly available under applicable federal or state law, the respondent may be called as a witness by The Florida Bar to make specific and complete disclosure of all matters material to the issues. When the respondent is subpoenaed to appear and give testimony or to produce books, papers, or documents and refuses to answer or to produce such books, papers, or documents, or, having been duly sworn to testify, refuses to answer any proper question, the respondent may be cited for contempt of the court.

(j) Complaining Witness. The complaining witness is not a party to the disciplinary proceeding, and shall have no rights other than those of any other witness; the complaining witness has-no right to be present during a hearing or trial but. However, unless it is found to be impractical due to unreasonable delay or other good cause, and after the complaining witness has testified during the case in chief, the referee may grant the complaining witness the right to be present at any hearing when the respondent is also present. A complaining witness may be called upon to testify and produce evidence as any other witness. Neither unwillingness nor neglect of the complaining witness to cooperate, nor settlement, compromise, or restitution will excuse failure to complete any trial. The complaining witness shall have no right to appeal.

(k) Referee’s Report.

(l) Contents of Report. Within 30 days after the conclusion of a trial before a referee or 10 days after the referee receives the transcripts of ' all hearings, whichever is later, or within such extended period of time as may be allowed by the chief justice for good cause shown, the referee shall make a report and enter it as part of the record, but failure to enter the report in the time prescribed shall not deprive the referee of jurisdiction. The referee’s report shall include:

(A) a finding of fact as to each item of misconduct of which the respondent is charged, which findings of fact shall enjoy the- same presumption of correctness as the judgment of the trier of fact in a civil proceeding;

(B) recommendations as to whether the respondent should be found guilty of misconduct justifying disciplinary measures;

(C) recommendations as to the disciplinary measures to be applied;

(D) a statement of any past disciplinary measures as to the respondent that are on record with the executive director of The Florida Bar or that otherwise become known to the referee through evidence properly admitted by the referee during the course of the proceedings (after a finding of guilt, all evidence of prior disciplinary measures may be offered by bar counsel subject to appropriate objection or explanation by respondent); and

(E)a statement of costs incurred and recommendations as to the manner in which such costs should be taxed.

(2) Filing, The referee’s report and record of proceedings shall in all cases be transmitted together to the Supreme Court of Florida. Copies of the report shall be served on the parties including the staff counsel of The Florida Bar. The referee shall serve a copy of the record on staff counsel with the report. Staff counsel will make a copy of the record, as furnished, available to other parties on request and payment of the actual costs of reproduction,

(Z) The Record.

(1) Recording of Testimony. All hearings at which testimony is presented shall be attended by a court reporter who shall record all testimony. Transcripts of such testimony are not required to be filed in the matter, unless requested by a party, who shall pay the cost of transcription directly, or ordered by the referee, in which case the costs thereof are subject to assessment as elsewhere provided in these rules.

(2) Contents. The record shall include all items properly filed in the cause including pleadings, recorded testimony, if transcribed, exhibits in evidence, and the report of the referee.

(m)Plea of Guilty by Respondent. At any time during the progress of disciplinary proceedings, a respondent may tender a plea of guilty.

(1) Before Filing of Complaint. If the plea is tendered before filing of a complaint by staff counsel, such plea shall be tendered in writing to the grievance committee.

(2) After Filing of Complaint. If the complaint has been filed against the respondent, the respondent may enter a plea of guilty thereto by filing the same in writing with the referee to whom the cause has been assigned for trial. Such referee shall take such testimony thereto as may be advised, following which the referee will enter a report as otherwise provided.

(3) Unconditional. An unconditional plea of guilty shall not preclude review as to disciplinary measures imposed.

(4) Procedure. Except as herein provided, all procedure in relation to disposition of the cause on pleas of guilty shall be as elsewhere provided in these rules.

(n) Cost of Review or Reproduction.

(1) The charge for reproduction, when photocopying or other reproduction is performed by the bar, for the purposes of these rules shall be as determined and published annually by the executive director. In addition to reproduction charges, the bar may charge a reasonable fee incident to a request to review disciplinary records or for research into the records of disciplinary proceedings and identification of documents to be reproduced.

(2) When the bar is requested to reproduce documents that are voluminous or is requested to produce transcripts in the possession of the bar, the bar may decline to reproduce the documents in the offices of the bar and shall inform the requesting person of the following options:

(A) purchase of the transcripts from the court reporter service that produced them;

(B) purchase of the documents from the third party from whom the bar received them; or

(C) designation of a commercial photocopy service to which the bar shall deliver the original documents to be copied, at the requesting party’s expense, provided the photocopy service agrees to preserve and return the original documents and not to release them to any person without the bar’s consent.

(o) Costs.

(1) Taxable Costs. Taxable costs of the proceedings shall include only:

(A) investigative costs, including travel and out-of-pocket expenses;

(B) court reporters’ fees;

(C) copy costs;

(D) telephone charges;

(E) fees for translation services;

(F) witness expenses, including travel and out-of-pocket expenses;

(G) travel and out-of-pocket expenses of the referee;

(H) travel and out-of-pocket expenses of counsel in the proceedings, including of the respondent if acting as counsel; and

(I) an administrative fee in the amount of $750 when costs are assessed in favor of the bar.

(2) Discretion of Referee. The referee shall have discretion to award costs and, absent an abuse of discretion, the referee’s award shall not be reversed.

(3) Assessment of Bar Costs. When the bar is successful, in whole or in part, the referee may assess the bar’s costs against the respondent unless it is shown that the costs of the bar were unnecessary, excessive, or improperly authenticated.

(4) Assessment of Respondent’s Costs. When the bar is unsuccessful in the prosecution of a particular matter, the referee may assess the respondent’s costs against the bar in the event that there was no justiciable issue of either law or fact raised by the bar.

RULE 3-7.13 INCAPACITY NOT RELATED TO MISCONDUCT

(a) Proceedings Without Adjudication of Incompetence or Hospitalization Under the Florida Mental Health Act. Whenever an attorney who has not been adjudged incompetent is incapable of practicing law because of physical or mental illness, incapacity, or other infirmity, the attorney may be classified as an inactive member and shall refrain from the practice of law for such reason even though no misconduct is alleged or proved. Proceedings under this rule shall be processed under the Rules of Discipline in the same manner as proceedings involving acts of misconduct.

A member who has been classified as inactive under this rule may be reinstated upon petition to and approval-by-th& board of governors. — A rejection-of-such petition may be reviewed -by — petition--to the Supreme Court of Florida in the same manner as in proceedings for reinstatement after suspension for acts of misconduct.

(b)Proceedings Upon Adjudication of Incompetence or Hospitalization Under the Florida Mental Health Act. A lawyer who has been adjudicated insane or mentally incompetent or hospitalized under the Florida Mental Health Act shall be classified as an inactive member and shall refrain from the practice of law. Upon receipt of notice that a member has been adjudicated incompetent or hospitalized under the Florida Mental Health Act, The Florida Bar shall file notice thereof with the Supreme Court of Florida. Thereafter the court shall issue an order classifying the member as an inactive member.

If an order of restoration is entered by a court having jurisdiction or the lawyer is discharged from hospitalization under the Florida Mental Health Act, the lawyer may be reinstated upon application to and approval by the board-of -governors. — A ■rejection of such petition may-be-reviewed by petition-to-the-Supreme Court of Flori-4a in the same manner as in proceedings for reinstatement after suspension for acts of misconduct.

RULE 3-7.16 LIMITATION ON TIME TO BRING COMPLAINT

(a) Time for Inquiries and Complaints. Inquiries raised or complaints presented by or to The Florida Bar under these rules shall be commenced within 6 years from the time the matter giving rise to the inquiry or complaint is discovered or, with due diligence, should have been discovered.

(b) Exception for Theft or Conviction of a Felony Criminal Offense. There shall be no limit on the time in which to present or bring a matter alleging theft or conviction of a felony criminal offense by a member of The Florida Bar.

(c) Tolling Based on Fraud, Concealment or Misrepresentation. In matters covered by this rule where it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the matter giving rise to the inquiry or complaint, the limitation of time in which to bring an inquiry or complaint within this rule shall be tolled.

(d) Constitutional Officers. Inquiries raised or complaints presented by or to The Florida Bar about the conduct of a constitutional officer who is required to be a member in good standing of The Florida Bar shall be commenced within 6 years after the constitutional officer vacates office.

RULE 4-1.5 FEES FOR LEGAL SERVICES

(a) Illegal, Prohibited, or Clearly Excessive Fees. An attorney shall not enter into an agreement for, charge, or collect an illegal, prohibited, or clearly excessive fee or a fee generated by employment that was obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar. A fee is clearly excessive when:

(1) after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee exceeds a reasonable fee for services provided to such a degree as to constitute clear overreaching or an unconscionable demand by the attorney; or

(2) the fee is sought or secured by the attorney by means of intentional misrepresentation or fraud upon the client, a non-client party, or any court, as to either entitlement to, or amount of, the fee.

(b) Factors to Be Considered in Determining Reasonable Fee. Factors to be considered as guides in determining a reasonable fee include:

(1) the time and labor required, the novelty, complexity, and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee, or rate of fee, customarily charged in the locality for legal services of a comparable or similar nature;

(4) the significance of, or amount involved in, the subject matter of the representation, the responsibility involved in the representation, and the results obtained;

(5) the time limitations imposed by the client or by the circumstances and, as between attorney and client, any additional or special time demands or requests of the attorney by the client;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, diligence, and ability of the lawyer or lawyers performing the service and the skill, expertise, or efficiency of effort reflected in the actual providing of such services; and

(8) whether the fee is fixed or contingent, and, if fixed as to amount or rate, then whether the client’s ability to pay rested to any significant degree on the outcome of the representation.

(c) Consideration of All Factors. In determining a reasonable fee, the time devoted to the representation and customary rate of fee need not be the sole or controlling factors. All factors set forth in this rule should be considered, and may be applied, in justification of a fee higher or lower than that which would result from application of only the time and rate factors.

(d) Enforceability of Fee Contracts. Contracts or agreements for attorney’s fees between attorney and client will ordinarily be enforceable according to the terms of such contracts or agreements, unless found to be illegal, obtained through advertising or solicitation not in compliance with the Rules Regulating The Florida Bar, prohibited by this rule, or clearly excessive as defined by this rule.

(e) Duty to Communicate Basis or Rate of Fee to Client. When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

(f) Contingent Fees. As to contingent fees:

(1) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by paragraph (f)(3) or by law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.

(2) Every lawyer who accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in any action, claim, or proceeding whereby the lawyer’s compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only where such fee arrangement is reduced to a written contract, signed by the client, and by a lawyer for the lawyer or for the law firm representing the client. No lawyer or firm may participate in the fee without the consent of the client in writing. Each participating lawyer or law firm shall sign the contract with the client and shall agree to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of the other lawyer or law firm involved. The client shall be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of this rule shall apply to such fee contracts.

(3) A lawyer shall not enter into an arrangement for, charge, or collect:

(A) any fee in a domestic relations matter, the payment or amount of which is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement in lieu thereof; or

(B) a contingent fee for representing a defendant in a criminal case.

(4) A lawyer who enters into an arrangement for, charges, or collects any fee in an action or claim for personal injury or for property damages or for death or loss of services resulting from personal injuries based upon tortious conduct of another, including products liability claims, whereby the compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only under the following requirements:

(A) The contract shall contain the following provisions:

(i) “The undersigned client has, before signing this contract, received and read the statement of client’s rights and understands each of the rights set forth therein. The undersigned client has signed the statement and received a signed copy to refer to while being represented by the undersigned attorney(s).”

(ii) “This contract may be cancelled by written notification to the attorney at any time within 3 business days of the date the contract was signed, as shown below, and if cancelled the client shall not be obligated to pay any fees to the attorney for the work performed during that time. If the attorney has advanced funds to others in representation of the client, the attorney is entitled to be reimbursed for such amounts as the attorney has reasonably advanced on behalf of the client.”

(B) The contract for representation of a client in a matter set forth in subdivision (f)(4) may provide for a contingent fee arrangement as agreed upon by the client and the lawyer, except as limited by the following provisions:

(i) Without prior court approval as specified below, any contingent fee that exceeds the following standards shall be presumed, unless rebutted, to be clearly excessive:

a. Before the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action:

1. 33 1/3% of any recovery up to $1 million; plus

2. 30% of any portion of the recovery between $1 million and $2 million; plus

3. 20% of any portion of the recovery exceeding $2 million.

b. After the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment:

1. 40% of any recovery up to $1 million; plus

2. 30% of any portion of the recovery between $1 million and $2 million; plus

3. 20% of any portion of the recovery exceeding $2 million.

c. If all defendants admit liability at the time of filing their answers and request a trial only on damages:

1. 33 1/3% of any recovery up to $1 million; plus

2. 20% of any portion of the recovery between $1 million and $2 million; plus

3. 15% of any portion of the recovery exceeding $2 million.

d. An additional 5% of any recovery after institution of any appellate proceeding is filed or post-judgment relief or action is required for recovery on the judgment.

(ii) If any client is unable to obtain an attorney of the client’s choice because of the limitations set forth in (f)(4)(B)(i), the client may petition the court in which the matter would be filed, if litigation is necessary, or if such court will not accept jurisdiction for the fee division, the circuit court wherein the cause of action arose, for approval of any fee contract between the client and an attorney of the client’s choosing. Such authorization shall be given if the court determines the client has a complete understanding of the client’s rights and the terms of the proposed contract. The application for authorization of such a contract can be filed as a separate proceeding before suit or simultaneously with the filing of a complaint. Proceedings thereon may occur before service on the defendant and this aspect of the file may be sealed. Authorization of such a contract shall not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive under subdivisions (a) and (b).

(iii) In cases where the client is to receive a recovery that will be paid to the client on a future structured or periodic basis, the contingent fee percentage shall only be calculated on the cost of the structured verdict or settlement or, if the cost is unknown, on the present money value of the structured verdict or settlement, whichever is less. If the damages and the fee are to be paid out over the long term future schedule, then this limitation does not apply. No attorney may separately negotiate with the defendant for that attorney’s fee in a structured verdict or settlement where such separate negotiations would place the attorney in a position of conflict.

(C) Before a lawyer enters into a contingent fee contract for representation of a client in a matter set forth in this rule, the lawyer shall provide the client with a copy of the statement of client’s rights and shall afford the client a full and complete opportunity to understand each of the rights as set forth therein. A copy of the statement, signed by both the client and the lawyer, shall be given to the client to retain and the lawyer shall keep a copy in the client’s file. The statement shall be retained by the lawyer with the written fee contract and closing statement under the same conditions and requirements as subdivision (f)(5).

(D) As to lawyers not in the same firm, a division of any fee within subdivision (f)(4) shall be on the following basis:

(i) To the lawyer assuming primary responsibility for the legal services on behalf of the client, a minimum of 75% of the total fee.

(n) To the lawyer assuming secondary responsibility for the legal services on behalf of the client, a maximum of 25% of the total fee. Any fee in excess of 25% shall be presumed to be clearly excessive.

(iii) The 25% limitation shall not apply to those cases in which 2 or more lawyers or firms accept substantially equal active participation in the providing of legal services. In such circumstances counsel shall apply to the court in which the matter would be filed, if litigation is necessary, or if such court will not accept jurisdiction for the fee division, the circuit court wherein the cause of action arose, for authorization of the fee division in excess of 25%, based upon a sworn petition signed by all counsel that shall disclose in detail those services to be performed. The application for authorization of such a contract may be filed as a separate proceeding before suit or simultaneously with the filing of a complaint. Proceedings thereon may occur before service of process on any party and this aspect of the file may be sealed. Authorization of such contract shall not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive. An application under this subdivision shall contain a certificate showing service on the client and The Florida Bar. Counsel may proceed with representation of the client pending court approval.

(iv) The percentages required by this subdivision shall be applicable after deduction of any fee payable to separate counsel retained especially for appellate purposes.

(5) In the event there is a recovery, upon the conclusion of the representation, the lawyer shall prepare a closing statement reflecting an itemization of all costs and expenses, together with the amount of fee received by each participating lawyer or law firm. A copy of the closing statement shall be executed by all participating lawyers, as well as the client, and each shall receive a copy. Each participating lawyer shall retain a copy of the written fee contract and closing statement for 6 years after execution of the closing statement. Any contingent fee contract and closing statement shall be available for inspection at reasonable times by the client, by any other person upon judicial order, or by the appropriate disciplinary agency.

(g) Division of Fees Between Lawyers in Different Firms. Subject to the provisions of subdivision (f)(4)(D), a division of fee between lawyers who are not in the same firm may be made only if the total fee is reasonable and:

(1) the division is in proportion to the services performed by each lawyer; or

(2) by written agreement with the client:

(A) each lawyer assumes joint legal responsibility for the representation and agrees to be available for consultation with the client; and

(B) the agreement fully discloses that a division of fees will be made and the basis upon which the division of fees will be made.

(h) Credit Plans. Charges made by any lawyer or law firm under an approved credit plan shall be only for services actually rendered or cash actually paid on behalf of the client. No higher fee shall be charged and no additional charge shall be imposed by reason of a lawyer’s or law firm’s participation in an approved credit plan.

STATEMENT OF CLIENT’S RIGHTS FOR CONTINGENCY FEES

Before you, the prospective client, arrange a contingent fee agreement with a lawyer, you should understand this statement of your rights as a client. This statement is not a part of the actual contract between you and your lawyer, but, as a prospective client, you should be aware of these rights:

1. There is no legal requirement that a lawyer charge a client a set fee or a percentage of money recovered in a case. You, the client, have the right to talk with your lawyer about the proposed fee and to bargain about the rate or percentage as in any other contract. If you do not reach an agreement with one lawyer you may talk with other lawyers.

2. Any contingent fee contract must be in writing and you have 3 business days to reconsider the contract. You may cancel the contract without any reason if you notify your lawyer in writing within 3 business days of signing the contract. If you withdraw from the contract within the first 3 business days, you do not owe the lawyer a fee although you may be responsible for the lawyer’s actual costs during that time. If your lawyer begins to represent you, your lawyer may not withdraw from the case without giving you notice, delivering necessary papers to you, and allowing you time to employ another lawyer. Often, your lawyer must obtain court approval before withdrawing from a case. If you discharge your lawyer without good cause after the 3-day period, you may have to pay a fee for work the lawyer has done.

3. Before hiring a lawyer, you, the client, have the right to know about the lawyer’s education, training, and experience. If you ask, the lawyer should tell you specifically about the lawyer’s actual experience dealing with cases similar to yours. If you ask, the lawyer should provide information about special training or knowledge and give you this information in writing if you request it.

4. Before signing a contingent fee contract with you, a lawyer must advise you whether the lawyer intends to handle your case alone or whether other lawyers will be helping with the case. If your lawyer intends to refer the case to other lawyers, the lawyer should tell you what kind of fee sharing arrangement will be made with the other lawyers. If lawyers from different law firms will represent you, at least 1 lawyer from each law firm must sign the contingent fee contract.

5. If your lawyer intends to refer your case to another lawyer or counsel with other lawyers, your lawyer should tell you about that at the beginning. If your lawyer takes the case and later decides to refer it to another lawyer or to associate with other lawyers, you should sign a new contract that includes the new lawyers. You, the client, also have the right to consult with each lawyer working on your case and each lawyer is legally responsible to represent your interests and is legally responsible for the acts of the other lawyers involved in the case.

6. You, the client, have the right to know in advance how you will need to pay the expenses and the legal fees at the end of the case. If you pay a deposit in ad-vanee for costs, you may ask reasonable questions about how the money will be or has been spent and how much of it remains unspent. Your lawyer should give a reasonable estimate about future necessary costs. If your lawyer agrees to lend or advance you money to prepare or research the case, you have the right to know periodically how much money your lawyer has spent on your behalf. You also have the right to decide, after consulting with your lawyer, how much money is to be spent to prepare a case. If you pay the expenses, you have the right to decide how much to spend. Your lawyer should also inform you whether the fee will be based on the gross amount recovered or on the amount recovered minus the costs.

7. You, the client, have the right to be told by your lawyer about possible adverse consequences if you lose the case. Those adverse consequences might include money that you might have to pay to your lawyer for costs and liability you might have for attorney’s fees, costs, and expenses to the other side.

8. You, the client, have the right to receive and approve a closing statement at the end of the case before you pay any money. The statement must list all of the financial details of the entire ease, including the amount recovered, all expenses, and a precise statement of your lawyer’s fee. Until you approve the closing statement you need not pay any money to anyone, including your lawyer. You also have the right to have every lawyer or law firm working on your case sign this closing statement.

9. You, the client, have the right to ask your lawyer at reasonable intervals how the case is progressing and to have these questions answered to the best of your lawyer’s ability.

10. You, the client, have the right to make the final decision regarding settlement of a case. Your lawyer must notify you of all offers of settlement before and after the trial. Offers during the trial must be immediately communicated and you should consult with your lawyer regarding whether to accept a settlement. However, you must make the final decision to accept or reject a settlement.

11. If at any time you, the client, believe that your lawyer has charged an excessive or illegal fee, you have the right to report the matter to The Florida Bar, the agency that oversees the practice and behavior of all lawyers in Florida. For information on how to reach The Florida Bar, call 850/561-5600, or contact the local bar association. Any disagreement between you and your lawyer about a fee can be taken to court and you may wish to hire another lawyer to help you resolve this disagreement. Usually fee disputes must be handled in a separate lawsuit, unless your fee contract provides for arbitration. You can request, but may not require, that a provision for arbitration (under Chapter 682, Florida Statutes, or under the fee arbitration rule of the Rules Regulating The Florida Bar) be included in your fee contract.

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Attorney Signature

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Comment

Basis or rate of fee

When the lawyer has regularly represented a client, they ordinarily will have evolved an understanding concerning the basis or rate of the fee. In a new client-lawyer relationship, however, an understanding as to the fee should be promptly established. It is not necessary to recite all the factors that underlie the basis of the fee but only those that are directly involved in its computation. It is sufficient, for example, to state the basic rate is an hourly charge or a fixed amount or an estimated amount, or to identify the factors that may be taken into account in finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding. Furnishing the client with a simple memorandum or a copy of the lawyer’s customary fee schedule is sufficient if the basis or rate of the fee is set forth.

Rule 4-1.8(e) should be consulted regarding a lawyer’s providing financial assistance to a client in connection with litigation.

Terms of payment

A lawyer may require advance payment of a fee but is obliged to return any unearned portion. See rule 4-1.16(d). A lawyer is not, however, required to return retainers that, pursuant to an agreement with a client, are not refundable. A lawyer may accept property in payment for services, such as an ownership interest in an enterprise, providing this does not involve acquisition of a proprietary interest in the cause of action or subject matter of the litigation contrary to rule 4 — 1.8(i). H