April 15, 2003 Notices

first_imgThe Board of Governors is seeking applicants for the following vacancies to be filled during its May 30 meeting in Key West: ABA House of Delegates: Three lawyers to serve two-year terms commencing August 12, at the conclusion of the ABA Annual Meeting in San Francisco. Applicants must be ABA members. Florida Legal Services, Inc. Board of Directors: Six lawyers to serve two-year terms commencing July 1. This is a 21-member board composed of seven members from client groups and 14 lawyers, 11 of which are appointed by The Florida Bar Board of Governors. Florida Lawyers Assistance, Inc. Board of Directors: Five lawyers to serve three-year terms commencing July 1. The purpose of this 15-member Board of Directors is to assist the legal community in securing counseling and treatment for emotional and chemical dependency problems for lawyers. Florida Patients Compensation Fund: One attorney to serve a four-year term commencing July 1 and expiring on June 30. The purpose of the board is to supervise the operations of the FPCF which provides excess medical malpractice coverage for health care providers.Persons interested in applying for any of these vacancies may download the application for special Appointment from the Bar’s Web site, www.flabar.org, or should call Bar headquarters at (850) 561-5600, ext. 6802, to obtain the application form.Completed applications must be received by John F. Harkness, Jr., Executive Director, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300 no later than 5:30 p.m., Friday, April 25.Resumes will not be accepted in lieu of the required application.11th Circuit seeks comments on rules April 15, 2003 Regular News Due to the election of Michael J. Faehner as president-elect of the Young Lawyers Division, his Sixth Circuit seat will become open commencing with the Bar’s Annual Meeting on June 27.The board will appoint someone to fill the remaining year of the term. Eligible members of the division from the Sixth Circuit wishing to apply for this seat should submit, (by mail or fax), a letter requesting consideration to Austin Newberry, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, fax: (850) 561-5825 by no later than 5 p.m. on May 13.Bar panel studies ABA model rules Pursuant to Rule 3-7.10, John Newman Bryant, of Jacksonville has petitioned the Supreme Court of Florida for Bar reinstatement.Any persons having knowledge bearing upon Bryant’s fitness or qualifications to resume the practice of law should contact James Morton, staff investigator for The Florida Bar, at (800) 342-8060, ext. 5845,or (850)561-5845.YLD seeks award nominations The Young Lawyers Division is now accepting applications for its six major awards: The Diversity Award, which recognizes a person and/or entity that demonstrates the highest morality and respect for all persons and diversity, for efforts and allegiance to creating diversity, and promoting a more diverse workplace. Along with the award, the YLD will make a monetary donation to the recipient’s charity of choice. The Quality of Life Award, which recognizes a person and/or entity that, through humanitarian respect, advances balance and fulfillment in lawyers’ lives by redefining current work habits and schedules to provide more flexibility and a more meaningful existence. The YLD will make a monetary donation to the recipient’s charity of choice. The Outstanding Jurist Award, given to a judge with an excellent reputation for sound judicial decisions and an unblemished record of integrity as a lawyer and judge and who demonstrates concern for and willingness to assist young lawyers and respects their abilities. The Lynn Futch Most Productive Young Lawyer Award, given to a young lawyer who is not a member of the Bar YLD Board of Governors, who has worked most diligently in the past year in Bar activities and/or law-related public activities and who has an excellent reputation for legal abilities and integrity. Most Outstanding Public Service Project by a local young lawyers group. The project must serve the public and community, enhance the relationship of young lawyers to the public and community, and be innovative. Most Outstanding Member Service Project by a young lawyers group. The project should internally serve young lawyers, provide for membership enrichment, and be innovative.For more information about the awards contact Austin Newberry, YLD administrator, at (850) 561-5624. Nominations for the awards also should be sent to Newberry at The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300 no later than May 1.Multijurisdictional practice of law In July 2000, Martha Barnett, then president of the ABA, appointed a commission to study the multijurisdictional practice of law and sought input from state bars and interested parties. The multijurisdictional practice of law (MJP) can best be defined as a lawyer providing legal services in a jurisdiction where that lawyer is not licensed to practice law. The legal services can be in any area of the law and may take place at any stage of the representation. The client can either be from the state where the lawyer is licensed (the home state) or where the lawyer wishes to practice or provide the services (the host state). The activity usually takes place on a temporary or occasional basis but at times may be regular and permanent.In response to the ABA’s request for input, Terrence Russell established The Florida Bar Special Commission on the Multijurisdictional Practice of Law (“Commission I”). The ABA issued an interim report in November, 2001. Commission I studied the report and, in March, 2002, made several recommendations to the Board of Governors all of which were adopted by the Board. The recommendations made by Commission I and approved by the Board can be found on The Florida Bar’s website, www.flabar.org. Thereafter, in August, 2002, the ABA adopted a final MJP report and recommendations which varied in some respects from the interim report.In order to study the final report and make recommendations for rule changes, President Tod Aronovitz appointed a second MJP Commission (“Commission II). Commission II’s mission was to study the report and make recommendations for rule changes in light of the policies adopted by the Board in March, 2002. Commission II’s recommendations were presented to the Board on April 4, 2003 for discussion in concept only. The rules will be considered for first reading at the May 28 – 30, 2003 meeting. In order to provide notice at the earliest possible date the Board of Governors of The Florida Bar, pursuant to Standing Board Policy 1.60, hereby publishes notice of intent to consider the following items at its May 28-30 meeting. These matters are additionally governed by Rule 1-12.1, Rules Regulating The Florida Bar, where applicable.Most amendments to the Rules Regulating The Florida Bar that are finally acted upon by the board must still be formally presented to the Supreme Court of Florida, with further notice and opportunity to be heard, before they are officially approved and become effective.To receive a full copy of the text of any of these proposed amendments call (850)561- 5840 — please reference any requested proposal by its title, rule number, or item number and date of this publication. FLORIDA RULES OF JUDICIAL ADMINISTRATION Rule 2.061 Foreign AttorneysSummary: Limits number of appearances by a foreign attorney to 3 appearances in a 365-day period. Requires the payment of a nonrefundable $250.00 filing fee to The Florida Bar. Requires the use of a form motion and includes form motion. RULES REGULATING THE FLORIDA BAR Chapter 1 General Rule 1-3.10 Appearances by Non-Florida Lawyers Summary: Amends title to specify that the rule applies to appearances in a Florida court. Limits number of appearances to by a foreign attorney to 3 appearances in a 365-day period. Revises subsection regarding lawyers prohibited from appearing. Amends requirements of motion to track language of Rule 2.061 of the Florida Rules of Judicial Administration. Rule 1-3.11 Appearances by Non-Florida Lawyers in and Arbitration Proceeding in Florida Summary: New rule setting forth the procedures for a non-Florida lawyer to appear in an arbitration proceeding in Florida. Chapter 3 Rules of Discipline Rule 3-2.1 Generally Summary: Adds subsection (q) containing definition of final adjudication. Rule 3-4.1 Notice and Knowledge of Rules Summary: Adds title language making it clear that rule provides for jurisdiction over attorneys of other states. Adds language regarding jurisdiction of attorneys of other states for disciplinary purposes and amends language regarding activities which trigger jurisdiction. Rule 3-4.6 Discipline by Foreign or Federal Jurisdiction Summary: Specifies that an attorney may be subject to discipline in Florida regardless of where conduct occurred and may be subject to discipline in more than one jurisdiction. Establishes choice of law provisions. Amends title to include choice of law. Rule 3-7.2 Procedures Upon Criminal or Professional Misconduct; Discipline Upon Determination or Judgment of Guilt of Criminal Misconduct Summary: Amends subsection (j) to require that notice of a disciplinary sanction from another state be provided to the executive director of The Florida Bar. Chapter 4 Rules of Professional Conduct Rule 4-5.5 Unlicensed Practice of Law As the amendments to this rule and comment are substantial, the rule and comment are produced in their entirety below. RULE 4-5.5 UNLICENSED PRACTICE OF LAW ; MULTIJURISDICTIONAL PRACTICE OF LAW (a) Practice of law. A lawyer shall not : (a) practice law in a jurisdiction , where doing so violates other than the lawyer’s home state, in violation of the regulation of the legal profession in that jurisdiction ; or in violation of the regulation of the legal profession in the lawyer’s home state or assist another in doing so. (b) Establishing an office and holding out as lawyer prohibited. assist a person who is not a member of the bar in the performance of activity that constitutes the unlicensed practice of law. A lawyer who is not admitted to practice in Florida shall not: (1) except as authorized by other law, establish an office or other regular presence in Florida for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in Florida. (c) Authorized temporary practice. A lawyer admitted and authorized to practice law in another United States jurisdiction, and (i) not disbarred or suspended from practice in any jurisdiction; or (ii) disciplined or held in contempt in Florida by reason of misconduct committed while engaged in the practice of law permitted pursuant to this rule, may provide legal services on a temporary basis in Florida that: (1) are undertaken in association with a lawyer who is admitted to practice in Florida and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services: (i) are performed for a client who resides in or has an office in the lawyer’s home state; (ii) arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice; (iii) are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c)(2) or (c)(3); and (i) are performed for a client who resides in or has an office in the jurisdiction in which the lawyer is authorized to practice; or (ii) arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. Comment Paragraph (a) applies to unlicensed practice of law by a lawyer, whether through the lawyer’s direct action or by the lawyer assisting another person. A lawyer may practice law only in a jurisdiction in which the lawyer is authorized to practice. A lawyer may be admitted to practice law in a jurisdiction on a regular basis or may be authorized by court rule or order or by law to practice for a limited purpose or on a restricted basis. Regardless of whether the lawyer is admitted to practice law on a regular basis or is practicing as the result of an authorization granted by court rule or order or by the law, the lawyer must comply with the standards of ethical and professional conduct set forth in these Rules Regulating The Florida Bar.The definition of the practice of law is established by law and varies from one jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar protects the public against rendition of legal services by unqualified persons. Subdivision (b) This rule does not prohibit a lawyer from employing the services of paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated work and retains responsibility for their work. See rule 4-5.3. Likewise, it does not prohibit lawyers from providing professional advice and instruction to nonlawyers whose employment requires knowledge of law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants, and persons employed in government agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se. Other than as authorized by law, a lawyer who is not admitted to practice in Florida violates paragraph (b) if the lawyer establishes an office or other regular presence in Florida for the practice of law. Presence may be regular even if the lawyer is not physically present here. Such a lawyer must not hold out to the public or otherwise represent that the lawyer is admitted to practice law in Florida. There are occasions in which a lawyer admitted and authorized to practice in another United States jurisdiction may provide legal services on a temporary basis in Florida under circumstances that do not create an unreasonable risk to the interests of their clients, the public or the courts. Paragraph (c) identifies such circumstances. This rule does not authorize a lawyer to establish an office or other regular presence in Florida without being admitted to practice generally here. Furthermore, no lawyer is authorized to provide legal services pursuant to this rule if the lawyer (1) is disbarred or suspended from practice in any jurisdiction or (2) has been disciplined or held in contempt in Florida by reason of misconduct committed while engaged in the practice of law permitted pursuant to this rule. The contempt must be final and not reversed or abated. There is no single test to determine whether a lawyer’s services are provided on a “temporary basis” in Florida, and may therefore be permissible under paragraph (c). Services may be “temporary” even though the lawyer provides services in Florida on a recurring basis, or for an extended period of time, as when the lawyer is representing a client in a single lengthy negotiation or litigation. Paragraph (c) applies to lawyers who are admitted to practice law in any United States jurisdiction, which includes the District of Columbia and any state, territory or commonwealth of the United States. The word “admitted” in paragraph (c) contemplates that the lawyer is authorized to practice in the jurisdiction in which the lawyer is admitted and excludes a lawyer who while technically admitted is not authorized to practice, because, for example, the lawyer is on inactive status. Paragraph (c)(1) recognizes that the interests of clients and the public are protected if a lawyer admitted only in another jurisdiction associates with a lawyer licensed to practice in Florida. For this paragraph to apply, the lawyer admitted to practice in Florida could not serve merely as a conduit for the out-of-state lawyer, but would have to share actual responsibility for the representation and actively participate in the representation. Lawyers not admitted to practice generally in Florida may be authorized by law or order of a tribunal or an administrative agency to appear before the tribunal or agency. This authority may be granted pursuant to formal rules governing admission pro hac vice or pursuant to formal rules of the agency. Under paragraph (c)(2), a lawyer does not violate this rule when the lawyer appears before a tribunal or agency pursuant to such authority. To the extent that a court rule or other law of Florida requires a lawyer who is not admitted to practice in Florida to obtain admission pro hac vice before appearing before a tribunal or to obtain admission pursuant to applicable rule(s) before appearing before an administrative agency, this rule requires the lawyer to obtain that authority. Paragraph (c)(2) also provides that a lawyer rendering services in Florida on a temporary basis does not violate this rule when the lawyer engages in conduct in anticipation of a proceeding or hearing in a jurisdiction in which the lawyer is authorized to practice law or in which the lawyer reasonably expects to be admitted pro hac vice . Examples of such conduct include meetings with the client, interviews of potential witnesses, and the review of documents. Similarly, a lawyer admitted only in another jurisdiction may engage in conduct temporarily in Florida in connection with pending litigation in another jurisdiction in which the lawyer is or reasonably expects to be authorized to appear, including taking depositions in Florida. Paragraph (c)(3) permits a lawyer admitted to practice law in another jurisdiction to perform services on a temporary basis in Florida if those services are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services are preformed for a client who resides in or has an office in the lawyer’s home state or if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. The lawyer, however, must obtain admission pro hac vice in the case of a court-annexed arbitration or mediation or otherwise if court rules or law so require. For the purposes of this rule, a lawyer who is not admitted to practice law in Florida who files more than 3 demands for arbitration or responses to arbitration in separate and unrelated arbitration proceedings in a 365-day period shall be presumed to be providing legal services on a regular, not temporary, basis. Paragraph (c)(4) permits a lawyer admitted in another jurisdiction to provide certain legal services on a temporary basis in Florida that are performed for a client who resides or has an office in the jurisdiction in which the lawyer is authorized to practice or arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted but are not within paragraphs (c)(2) or (c)(3). These services include both legal services and services that nonlawyers may perform but that are considered the practice of law when performed by lawyers. When performing services which may be performed by nonlawyers, the lawyer remains subject to the Rules of Professional Conduct. Paragraphs (c)(3) and (c)(4) require that the services arise out of or be reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted. A variety of factors evidence such a relationship. The lawyer’s client may have been previously represented by the lawyer, or may be resident in or have substantial contacts with the jurisdiction in which the lawyer is admitted. The matter, although involving other jurisdictions, may have a significant connection with that jurisdiction. In other cases, significant aspects of the lawyer’s work might be conducted in that jurisdiction or a significant aspect of the matter may involve the law of that jurisdiction. The necessary relationship might arise when the client’s activities or the legal issues involve multiple jurisdictions, such as when the officers of a multinational corporation survey potential business sites and seek the services of their lawyer in assessing the relative merits of each. In addition, the services may draw on the lawyer’s recognized expertise developed through regular practice of law in a body of law that is applicable to the client’s particular matter. A lawyer who practices law in Florida pursuant to paragraph (c) or otherwise is subject to the disciplinary authority of Florida. A lawyer who practices law in Florida pursuant to paragraph (c) must inform the client that the lawyer is not licensed to practice law in Florida. The Supreme Court of Florida has determined that it constitutes the unlicensed practice of law for a lawyer admitted to practice law in a jurisdiction other than Florida to advertise to provide legal services in Florida which the lawyer is not authorized to provide. Paragraph (c) does not authorize advertising legal services to prospective clients in Florida by lawyers who are admitted to practice in jurisdictions other than Florida. Whether and how lawyers may communicate the availability of their services to prospective clients in Florida is governed by Rules 4-7.1 through 4-7.11. A lawyer who practices law in Florida is subject to the disciplinary authority of Florida. Pursuant to Rule 3-7.10(b), James Edmund Baker of Orlando has petitioned the Supreme Court for Bar reinstatement.Baker was suspended for 91 days by a Supreme Court order dated January 31 for violation of Rule 4-8.4(a) (a lawyer shall not violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so; or do so through the acts of another; Rule 4-8.4 (b) (a lawyer shall not commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects; and Rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit or misrepresentation).Anyone wishing to comment on Baker’s petition may contact Stephen C. Whalen, The Florida Bar, 5521 W. Spruce Street, Suite C-49, Tampa 33607-5958, phone (800) 940-4759.YLD to fill vacancy Pursuant to 28 U.S.C. §2071(b), notice and opportunity for comment is hereby given of proposed amendments to the Rules of the U.S. Court of Appeals for the 11th Circuit. In addition, pursuant to 28 U.S.C. §2071(e), notice and opportunity for comment is hereby given of amendments to 11th Cir. R. 33-1(c)(3) and 33-1(d) that were approved by general administrative order of the court to take effect April. A copy of the proposed amendments, may be obtained from the circuit’s Web site at www.ca11.uscourts.gov. A copy may also be obtained without charge from the Office of the Clerk, U.S. Court of Appeals for the 11th Circuit, 56 Forsyth St., N.W., Atlanta, Georgia 30303, phone: (404) 335-6100.Comments on the proposed amendments, and on the amendments to 11th Cir. R. 33-1(c)(3) and 33-1(d), may be submitted in writing to the clerk at the above street address by May 5.Baker seeks Florida Bar reinstatement Michael I. Levine of Weston was disbarred from the practice of law in Florida pursuant to the Supreme Court’s order of January 26, 1989.Levine was disbarred for conspiracy to commit racketeering acts and conspiracy to defraud the Internal Revenue Service. Levine has now submitted an application for readmission to The Florida Bar. The Florida Board of Bar Examiners will conduct a public hearing on Levine’s application for readmission.All members of the Bar are invited to write to the board regarding their knowledge of Levine, particularly in relation to his character and fitness for readmission to The Florida Bar. If you wish to be notified of the time and place of the hearing, submit a written request to Kathryn E. Ressel, executive director at the Florida Board of Bar Examiners, 1891 Eider Court, Tallahassee 32399-1750.Bryant petitions for reinstatement April 15, 2003 Notices A special Florida Bar committee reviewing changes to the ABA Model Rules 2002 has completed its interim report and is asking Bar members for their input on possible changes to Bar disciplinary rules.The ABA panel filed its recommendations in February 2002, based on the ABA’s Ethics 2000 Review panel. The Bar then created the Special Committee to Review the ABA Model Rules 2002, and charged it with reviewing Bar rules and recommending any changes.The committee’s goal throughout the project was to protect the public and maintain the core values of the profession.The interim report and recommended rule amendments have been posted on the Bar’s Web site. Go to FLABAR.org, and then click on Organization, then Special Committees and finally Special Committee to Review the ABA Model Rules 2002.The committee will consider member comments before making final recommendations to the Bar Board of Governors.The committee will meet to discuss any comments received at The Florida Bar Annual Meeting on Thursday, June 26, from 10 a.m. until noon. So that the committee members will have adequate time to review the comments prior to their June meeting, any comments must be received no later than May 27, 2003. Comments should be sent to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida, 32399-2300.Members of the committee are, Adele I. Stone, chair, Andrew S. Berman, Randolph Braccialarghe, Timothy P. Chinaris, Mark K. Delegal, Timothy W. Gaskill, Charles P. Pillans III, Judge Ronald J. Rothschild, and D. Culver “Skip” Smith III.Legislative Action Under Rule 2-9.3 (b) – (e), Rules Regulating The Florida Bar, active members of the Bar may file a specific objection to any legislative position adopted by the Board of Governors.Objections properly filed within 45 days of this News issue will be considered for a refund of that portion of mandatory membership fees applicable to the contested legislative position, within an additional 45 days. The Bar’s governing board has the option to grant the appropriate refund to an objector or to refer the matter to arbitration.The arbitration process will determine solely whether the legislative position is within those acceptable activities for which compulsory membership fees may be used under applicable constitutional law. The objecting member’s fees allocable to the contested legislative position will be escrowed promptly upon receipt of the objection, and any refund will bear legal interest.Any active member may provide written notice to the executive director of The Florida Bar, setting forth an objection to a particular legislative position. Failure to object within 45 days of this News issue will constitute a waiver of any right to object to a particular legislative position within this notice.The policy requires the Bar to notice such legislative positions in the next available News issue following their adoption.Pursuant to Standing Board Policy 9.21, on March 21, the Board of Governors Executive Committee approved the following positions of The Florida Bar:8. Supports a merit-based selection process for Florida judges made up of nominating commissions that are comprised of one-third directly appointed by the governor, one-third directly appointed by The Florida Bar, and one-third jointly chosen by the appointees of the governor and The Florida Bar.9. Opposes amendment of Article V, Section 11 of the Florida Constitution to allow deliberations of judicial nominating commissions be open to the public.Levine petitions for readmission Board to make May appointmentslast_img