Monthly Archives: September 2016

Florida Supreme Court adds three hours of technology to lawyer’s mandatory CLE requirements and increases total hours from 30 to 33

Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida which approved proposed changes to Florida Bar rules mandating three hours of continuing legal education in technology related areas/courses.  Florida will become the first state to mandate technology CLE.  The opinion is In Re: Amendments to the Rules Regulating The Florida Bar 4-1.1 and 6-10.3, No. SC16-574 (September 29, 2016) and is here:  http://www.floridasupremecourt.org/decisions/2016/sc16-574.pdf. The rule amendments will become effective on January 1, 2017.

The opinion adopted the recommendations of the The Florida Bar’s Vision 2016 Commission’s Technology Subcommittee.  The revision to rule 6-10.3 increases the CLE requirements for Florida lawyers from 30 to 33 hours of credit every three years and three hours must be in technology related areas/courses.

The opinion also amended the comment to rule 4-1.1 (Competence) “to add language providing that competent representation may involve a lawyer’s association with, or retention of, a non-lawyer advisor with established technological competence in the relevant field. Competent representation may also entail safeguarding confidential information related to the representation, including electronic transmissions and communications. Additionally, we add language to the comment providing that, in order to maintain the requisite knowledge and skill, a lawyer should engage in continuing study and education, including an understanding of the risks and benefits associated with the use of technology.”

Bottom line: Beginning in January 2017, lawyers will be required to obtain 33 hours of CLE every 3 years (up from 30) with a minimum of three hours in technology related areas/courses.

Be careful out there.

Disclaimer:  this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway 19 N. Suite 150

Clearwater, Florida 33761

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney Ethics, Florida Bar, Florida lawyer CLE technology competence, Florida Lawyer Ethics and Professionalism, Florida lawyer technology competence rule 4-1.1, joe corsmeier, Joseph Corsmeier, Lawyer competence technology, Lawyer ethics, Lawyer lack of competence, Lawyer technology competence

Florida Bar will file petition with Florida Supreme Court with revisions to Rule 4-1.8(c) to prohibit a lawyer from soliciting any gifts from client

Hello and welcome to this Ethics Alert which will discuss the proposed revision to Florida Bar Rule 4-1.8(c), which would prohibit a lawyer from soliciting any gift from a client.  The BOG approved the rule amendments and the Bar will file an Omnibus Rules Petition with the proposed rule amendment with the Florida Supreme Court on October 15, 2016 (along with other proposed rule amendments).  The new Rule 4-1.8(c) language is below with new language underlined and proposed rule revisions are here:  2016 Annual Florida Bar Rules Proposals.

Current Florida Bar Rule 4-1.8(c) prohibits lawyers from soliciting or accepting a “substantial” gift from a client or preparing a testamentary instrument giving the lawyer or a person related to the lawyer a substantial gift; however, one of the issues which comes up when a lawyer solicits or prepares an instrument with a gift from a client is whether it is “substantial”.  The Bar Rules do not define “substantial” and a potential rule violation is subject to the Bar’s subjective interpretation of the word.

If the revisions to the rule are implemented by the Florida Supreme Court, the plain language of the would prohibit lawyers from soliciting any gift from a client or soliciting or preparing a testamentary instrument of a client with any gift.  The proposed revised rule 4-1.8(c) is below:

RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED AND OTHER TRANSACTIONS

(c)  Gifts to Lawyer or Lawyer’s Family. A lawyer is prohibited from soliciting any gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this subdivision, related persons include a spouse, child, grandchild, parent, grandparent, or other relative with whom the lawyer or the client maintains a close, familial relationship.

According to the Bar’s notice: “Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition(s) (which will be 10/15/16). Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.”

Bottom line:  If approved by the Florida Supreme Court, this revision would provide more clarity to lawyers regarding the acceptance of gifts; however, it will also mean that a lawyer will violate this rule if he or she accepts any gift from a client.

Be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

 

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Filed under Attorney Ethics, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer gifts from clients, Lawyer soliciting or preparing instrument with gift from client

Florida Bar will file petition with Florida Supreme Court with revisions to Rule 4-5.8 to clarify which clients must be notified of lawyer’s departure

Hello and welcome to this Ethics Alert which will discuss the proposed additions to the Comment to Florida Bar Rule 4-5.8, which addresses the issue of what firm clients must be notified of a lawyer’s departure from the law firm.  The BOG approved the rule amendments and the Bar will file an Omnibus Rules Petition with the proposed rule amendment with the Florida Supreme Court on October 15, 2016 (along with other proposed rule amendments).  The new Rule 4-5.8 language and Comment is below with new language underlined and proposed rule revisions are here:  2016 Annual Florida Bar Rules Proposals.

RULE 4-5.8 PROCEDURES FOR LAWYERS LEAVING LAW FIRMS AND DISSOLUTION OF LAW FIRMS

(a) Contractual Relationship Between Law Firm and Clients. [no change]

(b) Client’s Right to Counsel of Choice. Clients have the right to expect that they may choose counsel when legal services are required and, with few exceptions, nothing that lawyers and law firms do affects the exercise of that right.

(c) Contact With Clients.

(1) Lawyers Leaving Law Firms. Absent a specific agreement otherwise, a lawyer who is leaving a law firm may not unilaterally contact those clients of the law firm for purposes of notifying them about the anticipated departure or to solicit representation of the clients unless the lawyer has approached an authorized representative of the law firm and attempted to negotiate a joint communication to the clients concerning the lawyer leaving the law firm and bona fide negotiations have been unsuccessful.

(2) Dissolution of Law Firm. Absent a specific agreement otherwise, a lawyer involved in the dissolution of a law firm may not unilaterally contact clients of the law firm unless, after bona fide negotiations, authorized members of the law firm have been unable to agree on a method to provide notice to clients.

***

Comment

***

Lawyers and firms should engage in bona fide, good faith negotiations within a reasonable period of time following their knowledge of either the anticipated change in firm composition or, if the anticipated change is unknown, within a reasonable period of time after the change in firm composition. The actual notification to clients should also occur within a reasonable period of time. What is reasonable will depend on the circumstances, including the nature of the matters in which the lawyer represented the clients and whether the affected clients have deadlines that need to be met within a short period of time.

For purposes of this rule, clients who should be notified of the change in firm composition include current clients for whom the departing lawyer has provided significant legal services with direct client contact. Clients need not be notified of the departure of a lawyer with whom the client has had no direct contact. Clients whose files are closed need not be notified unless the former client contacts the firm, at which point the firm should notify the former client of the departure of any lawyer who performed significant legal services for that former client and had direct contact with that former client.

Although contact by telephone is not prohibited under this rule, proof of compliance with the requirements of this rule may be difficult unless the notification is in writing.

In order to comply with the requirements of this rule, both departing lawyers and the law firm should be given access to the names and contact information of all clients for whom the departing lawyer has provided significant legal services and with whom the lawyer has had direct contact.

If neither the departing lawyer nor the law firm intends to continue representation of the affected clients, they may either agree on a joint letter providing that information to those clients, or may separately notify the affected clients after bona fide, good faith negotiations have failed. Any obligation to give the client reasonable notice, protect the client’s interests on withdrawal, and seek permission of a court to withdraw may apply to both the departing lawyer and lawyers remaining in the firm. 

***

One of the issues which frequently comes up when a lawyer leaves a law firm is which clients must be notified of the lawyer’s departure under this rule.  The new Comment language addresses this issue and states that the “clients who should be notified of the change in firm composition include current clients for whom the departing lawyer has provided significant legal services with direct client contact.”  Of course, the language in the proposed rule is subject to interpretation; however, it should provide more guidance to lawyers and law firms regarding client notification when a lawyer leaves the firm.  The Comment also states that the “obligation to give the client reasonable notice, protect the client’s interests on withdrawal, and seek permission of a court to withdraw may apply to both the departing lawyer and lawyers remaining in the firm.”

According to the Bar’s notice of the proposed rule changes: “Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition(s). Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.”

Bottom line:  If approved by the Florida Supreme Court, this revision should provide more guidance to lawyers and law firms in providing notice to clients; however, it will also require analysis and interpretation of the term “significant legal services with direct client contact”.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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Filed under Attorney Ethics, Departing lawyer and law firm responsibilities, Florida Bar Rule 4-5.8 2016 proposed amendment, Florida Bar Rule 4-5.8 lawyers leaving law firms, joe corsmeier, Joseph Corsmeier, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyers leaving law firms

The Florida Bar will file petition with advertising rule amendment regarding lawyer’s use of “expert” and “specialist” on October 15, 2016

Hello and welcome to this update of the May 25, 2016 Ethics Alert regarding the proposed amendment to Florida Bar Rule 4-7.14 with new subsection 4-1.14(a)(5) related to claims of “specialization” and “expertise” in advertisements.  The BOG approved the rule amendment and the Bar will file an Omnibus Rules Petition with the proposed rule amendment with the Florida Supreme Court on October 15, 2016 (along with other proposed rule amendments).  The proposed rule revisions are here:  2016 Annual Florida Bar Rules Proposals and the new Rule 4-7.14(a)(5) language is below:

RULE 4-7.14 POTENTIALLY MISLEADING ADVERTISEMENTS

A lawyer may not engage in potentially misleading advertising.

(a) Potentially Misleading Advertisements. Potentially misleading advertisements include, but are not limited to:

(5) a statement that a lawyer is a specialist, an expert, or other variations of those terms unless:

(A) the lawyer has been certified under the Florida Certification Plan as set forth in chapter 6, Rules Regulating the Florida Bar and the advertisement includes the area of certification and that The Florida Bar is the certifying organization;

(B) the lawyer has been certified by an organization whose specialty certification program has been accredited by the American Bar Association or The Florida Bar as provided elsewhere in these rules. A lawyer certified by a specialty certification program accredited by the American Bar Association but not The Florida Bar must include the statement “Not Certified as a Specialist by The Florida Bar” in reference to the specialization or certification. All such advertisements must include the area of certification and the name of the certifying organization;

(C) the lawyer has been certified by another state bar if the state bar program grants certification on the basis of standards reasonably comparable to the standards of the Florida Certification Plan set forth in chapter 6 of these rules and the advertisement includes the area of certification and the name of the certifying organization; or

(D) the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan set forth in chapter 6 of these rules and, if the area of claimed specialization or expertise is or falls within an area of practice under the Florida Certification Plan, the advertisement includes a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program if the lawyer is not board certified in that area of practice.

The new subsection in Rule 4-7.14(5)(a)(D) states that a lawyer is prohibited from stating that he or she is  “a specialist, an expert, or other variations of those terms” unless “the lawyer’s experience and training demonstrate specialized competence in the advertised area of practice that is reasonably comparable to that demonstrated by the standards of the Florida Certification Plan.”  In addition, if the lawyer’s area of expertise is an area in which the Bar approves certifications, the lawyer would be required to include “a reasonably prominent disclaimer that the lawyer is not board certified in that area of practice by The Florida Bar or another certification program.”

According to the Bar’s filing notice: “Members who desire to comment on these proposed amendments may do so within 30 days of the filing of the Bar’s petition(s). Comments must be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-12.1, Rules Regulating The Florida Bar, governs these proceedings.”

Bottom line:  As I previously said, it remains to be seen whether the Florida Supreme Court will approve the amendment as drafted and, if it does, whether the restrictions in the amended Bar rule on their face and as applied are in compliance with the federal district judge’s 9/30/15 order finding that the previous rule violated the United States Constitution.  The Order here: 9/30/15 J. Hinkle Order and Injunction.

Stay tuned…and be careful out there.

Disclaimer:  this Ethics Alert  is not an advertisement and does not contain any legal advice, and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

29605 U.S. Highway N., Suite 150

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

Leave a comment

Filed under Attorney Ethics, Florida 2013 advertising rules federal lawsuit, Florida 2013 comprehensive lawyer advertising rules, Florida Bar, Florida Lawyer Ethics and Professionalism, joe corsmeier, Joseph Corsmeier, Lawyer advertising, Lawyer advertising and solicitation, Lawyer advertising rules, Lawyer advertising specialties and certification, Lawyer advertising testimonials, Lawyer ethics, Lawyer Ethics and Professionalism, Lawyer use of expertise and specialist in advertising and certification, Lawyers use of specialization and expertise ethics