Category Archives: Lawyer gifts from clients

Amended Florida Bar Rule 4-1.8(c) prohibiting soliciting any gift from a client or preparing instrument with any gift became effective 2/1/18

Hello and welcome to this Ethics Alert which will discuss amended Florida Bar Rule 4-1.8(c), which prohibits a lawyer from soliciting any gift from a client or preparing an instrument with any gift for the client.  The Florida Bar filed a Petition that included the proposed rule amendment with the Florida Supreme Court on October 15, 2016.  In an opinion dated November 9, 2017, the Court approved amended Rule 4-1.8(c),, which became effective February 1, 2018.  The case cite is: In re: Amendments to the Rules Regulating The Florida Bar (Biennial Petition), 229 So.3d 1154 (Fla. 2017) and the opinion is here:  http://www.floridasupremecourt.org/decisions/2017/sc16-1961.pdf

Previous Florida Bar Rule 4-1.8(c) prohibited 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, the rule did not define “substantial” and a potential rule violation was potentially subject to the Bar’s subjective interpretation of that word.

Amended Bar Rule 4-1.8(c) now prohibits lawyers from soliciting any gifts from clients or preparing an instrument for a client with a gift, regardless of the size of the gift.  Florida Bar Rule 4-1.8(c) as amended, 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.

The Comment to Rule 4-1.8 was also amended to state that a lawyer may prepare a document that appoints the lawyer, the lawyer’s firm, or a relative of the lawyer to a “fiduciary office” (such as a personal representative or trustee) only if “the client is properly informed, the appointment does not violate rule 4-1.7, the appointment is not the product of undue influence or improper solicitation by the lawyer, and the client gives informed consent, confirmed in writing.”

The Comment further states that the lawyer should advise the client in writing that “a person who serves as a fiduciary is entitled to compensation, and that the lawyer may be eligible to receive compensation for serving as a fiduciary in addition to any attorneys’ fees that the lawyer or the lawyer’s firm may earn for serving as a lawyer for the fiduciary.” (emphasis supplied)

Bottom line:  This Bar Rule amendment clarifies the rule and a lawyer will now violate this rule if he or she solicits any gift from a client or prepares and instrument with a gift, regardless of the size of the gift.

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 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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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