Hello and welcome to this JACPA Ethics Alert blog which will discuss the very recent opinion of the Supreme Court of Florida adopting revisions to, inter alia, Bar Rule 5-1.2, Trust Account Records and Procedures and Rule 4-8.3(c) Reporting Professional Misconduct. The amendments will become effective 7/1/12.
The Bar proposed various revisions to Rule 5-1.2 (Trust Accounting Records and Procedures) and, according to the opinion, the most controversial was proposed new subdivision (d) (Signing Trust Account Checks), which would have required that a lawyer sign every trust account check with his or her actual signature and would have prohibited lawyers from using a signature stamp or signing a trust account check in blank.
The Florida Bar and the Supreme Court received comments which stated that the proposed rule would impose a significant and disproportionate burden on lawyers who practice solo or in very small firms. The Court agreed with these comments, declined to adopt the amendment, and referred the issue to the Bar for additional study. The opinion stated that, “(i)n particular, the Bar should revise its proposal so as to accommodate the issues raised by solo practitioners and lawyers in small firms.”
The opinion also made important revisions to Rule 4-8.3 (Reporting Professional Misconduct) which clarify the reporting requirements in the context of mediation. Rule 4-8.3(c) was revised to clarify that the rule does not require disclosure of confidential information “gained by the lawyer while serving as a mediator or mediation participant if the information is privileged or confidential under applicable law”.
The Comment to Rule 4-8.3 was also revised to state that: “(g)enerally, Florida statutes provide that information gained through a “mediation communication” is privileged and confidential, including information which discloses professional misconduct occurring outside the mediation. However, professional misconduct occurring during the mediation is not privileged or confidential under Florida Statutes.”
These revisions clarify that professional misconduct occurring during mediation is not privileged of confidential under Florida Statutes; however, “information which discloses professional misconduct outside of mediation is privileged and confidential” under Florida Statutes.
Florida lawyers who become aware during mediation of professional misconduct outside of the mediation must decide whether the lawyer “has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” If so, the lawyer may be required to report the misconduct.
Bottom line: According to the opinion, solos and lawyers in “very small” firms can apparently still sign trust checks in blank and have trust account checks stamped with their signature (for now), although this is certainly not the recommended procedure. In addition, revised Rule 4-8.3 and the Comment clarify that professional misconduct by a lawyer during mediation is not privileged or confidential under Florida Statutes; however, professional misconduct outside of the mediation is privileged and confidential under Florida Statutes. Lawyers who learn of alleged misconduct during mediation must decide whether such conduct must be reported under Rule 4-8.3(a) which states as follows:
4-8.3(a) Reporting Misconduct of Other Lawyers. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority.
Be careful out there!
| As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.
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