THE FLORIDA BAR , Meeting of the Board of Governors March 19-20, 1992 The Hyatt Regency Westshore Tampa, Florida

REGULAR MINUTES Pursuant to notice, the regular meeting of the Board of Governors of The Florida Bar was called to order on Thursday, March 19, 1992, at the Hyatt Regency Westshore, Tampa, Florida, with President Benjamin H. Hill III presiding. !_. Invocation

The opening invocation was given by Board member Donald A. Gifford. 2. Roll Call

Board members present at this meeting: Benjamin H. Hill III, President A. G. Condon, Jr., First Judicial Circuit Enoch J. Whitney, Second Judicial Circuit Thomas M. Ervin, Jr., Second Judicial Circuit S. Austin Peele, Third Judicial Circuit John A. DeVault III, Fourth Judicial Circuit Victor M. Halbach, Jr., Fourth Judicial Circuit Robert Q. Williams, Fifth Judicial Circuit Ky M. Koch, Sixth Judicial Circuit William F. Blews, Sixth Judicial Circuit Horace Smith, Jr., Seventh Judicial Circuit R. Dennis Comfort, Eighth Judicial Circuit John Edwin Fisher, Ninth Judicial Circuit Gregory A. Presnell, Ninth Judicial Circuit David B. King, Ninth Judicial Circuit R. Kent Lilly, Tenth Judicial Circuit Patricia A. Seitz, Eleventh Judicial Circuit Edward R. Blumberg, Eleventh Judicial Circuit Sandy Karlan, Eleventh Judicial Circuit Dianne Saulney Smith, Eleventh Judicial Circuit Edith G. Osman, Eleventh Judicial Circuit John W. Thornton, Jr., Eleventh Judicial Circuit Robert M. Sondak, Eleventh Judicial Circuit Joseph H. Serota, Eleventh Judicial Circuit Scott L. Baena, Eleventh Judicial Circuit Edwin T. Mulock, Twelfth Judicial Circuit Michael A. Fogarty, Thirteenth Judicial Circuit Donald A. Gifford, Thirteenth Judicial Circuit William E. Sizemore, Thirteenth Judicial Circuit C. Douglas Brown, Fourteenth Judicial Circuit Patrick J. Casey, Fifteenth Judicial Circuit Alfred K. Frigola, Sixteenth Judicial Circuit

Regular Minutes - Page 2 March 19-20, 1992 Michael J. McNerney, Seventeenth Judicial Circuit Dale R. Sanders, Seventeenth Judicial Circuit William S. Spencer, Seventeenth Judicial Circuit Walter G. Campbell, Jr., Seventeenth Judicial Circuit Thomas G. Freeman, Eighteenth Judicial Circuit George H. Moss II, Nineteenth Judicial Circuit John A. Noland, Twentieth Judicial Circuit William L. Guzzetti, Out-of-State Frederick J. Bosch, Out-of-State Robert C. Palmer III, YLD President Wayne L. Helsby, YLD President-elect Abraham S. Fischler, Public Member Theodore R. Struhl, M.D., Public Member Absent this entire meeting: Alan T. Dimond, President-elect Manuel A. Crespo, Eleventh Judicial Circuit Stuart Z. Grossman, Eleventh Judicial Circuit Timothy W. Gaskill, Fifteenth Judicial Circuit H. Michael Easley, Fifteenth Judicial Circuit Edwin Marger, Out-of-State Absent Thursday only: Sandy Karlan, Eleventh Judicial Circuit Absent Friday only: R. Dennis Comfort, Eighth Judicial Circuit Scott L. Baena, Eleventh Judicial Circuit Staff attending included: John F. Harkness, Jr., Executive Director John T. Berry, Director, Legal Division John A. Boggs, Director, Lawyer Regulation Paul F. Hill, Director, Communications Division (Thursday only) G. Dan Bennett, Director, Finance and Planning Division (Thursday only) Allen L. Martin, Director, Finance and Accounting (Thursday only) Dale A. DeHart, Director, Planning and Evaluation Mary Ellen Bateman, UPL Counsel Lori Holcomb, Assistant UPL Counsel (Thursday only) Michael A. Tartaglia, Director, Programs Division Gerald A. Butterfield, Director, Public Information and Bar Services Department Gary Blankenship, Associate Editor, Florida Bar News and Journal Mindy Boggs, Assistant to the President Carol L. Bracy, Secretary to the Board of Governors

Regular Minutes - Page 3 March 19-20, 1992

3.

Guests

Guests for this meeting included: Martha Curtis, President, Hillsborough County Chapter, Florida Association for Women Lawyers; Mary Hladky, Reporter, Broward Review; Richard C. McFarlain, Legislative Advisor; Lawrence G. Mathews, Jr., Incoming Board member; Thomas H. Gonzalez, former Board member; David C. Brennan, Chair, Council of Sections; Kirk Davis, Chair-elect, Health Law Section, in addition to other individuals indicated hereafter. 4. Consent Calendar

The following items on the consent calendar were approved as submitted: A. Minutes Minutes of the regular session of the January 23-24, 1992 meeting of the Board of Governors were approved as distributed. Grievance minutes of the January 24, 1992 meeting were approved as distributed. Minutes from the February 10, 1992 and February 25, 1992 Executive Committee conference calls were approved as distributed. Minutes from the March 2, 1992 Executive Committee conference call were approved as amended as to paragraph two, line 7, which was rewritten to read: After consideration, the Executive Committee unanimously agreed to the dismissal of the cases currently before a referee and referral to another grievance committee.
B

-

UPL Circuit Committee Appointments The Board approved the following appointment: Monte, Gordon, Miami, public member Eleventh Circuit UPL Committee "A"

C.

Disciplinary Procedure Committee Recommendations 1. The amendment to Rule 3-5.1, Types of Discipline, adds subdivision (j), Disciplinary Resignation, which allows a respondent to resign membership in The Florida Bar in lieu of defending against allegations of disciplinary violations. The amendment to Rule 3-7.10, Reinstatement and Readmission Procedures, designates resignation in lieu of disciplinary action as "disciplinary resignation" and is intended to more clearly indicate that such resignation is a disciplinary sanction.

2.

Regular Minutes - Page 4 March 19-20, 1992 3. The amendment to Rule 3-7.12, Disciplinary Resignation from The Florida Bar, designates resignation in lieu of disciplinary action as disciplinary resignation and is intended to more clearly indicate that such resignation is a disciplinary sanction. A summary of the amendments was published in the March 1 issue of The Florida Bar News. D. Rules and Bylaws Committee Recommendations 1. Council of Section Bylaws These new bylaws govern the conduct of the business and make up of the council.

E.

Board of Legal Specialization and Education Recommendations 1. Rule 1-12.1, Amendment to Rules; Authority; Notice; Procedures; Comments This amendment alters the method for amendment of the standards for individual areas of certification under Chapter 6, Rules Regulating The Florida Bar. 2. Rule 6-1.4, Amendments This amendment clarifies that Chapter 6 is amended by petition to the court, except the list of approved designation areas and the standards for individual areas of certification, which are amended by the bar. 3. Rule 6-2.2, Areas of Permitted Designation This amendment allows the bar to amend the list of approved designation areas without advance court approval. 4. Rule 6-3.2, Certification Committees This amendment expands the size of certification committees from 7 to 9 members. 5. Rule 6-3.12, Amendments The amendment allows standards for individual areas of certification to be amended by the board of governors consistent with the notice and publication requirements set forth in rule 1-12.1. 6. 600 series ELSE Policies Amendments conform this series of ELSE policies to continuing legal eduction requirements approved by the court by order dated October 10, 1991 and effective January 1, 1992.

Regular Minutes - Page 5 March 19-20, 1992 5_. Trial Lawyers Section Annual Report

Chair Jean Bice was introduced by Board liaison John DeVault. Ms. Bice reported that the section currently maintains a little less than 6,000 members and, by consolidating operations, it anticipates an increased fund balance from $30,000 to $60,000. Ms. Bice reported that the Executive Council of the section met in a two-day retreat in October, 1991, to evaluate ongoing programs, prioritize the assets of the section, and plan future direction. During the retreat, two main areas of concern were discussed: (1) the Civil Trial Certification Program; and (2) alternate dispute resolution programs. The Council hopes to be able to interface with the Civil Trial Certification Committee to provide a mechanism for input from the section, and by appointing a committee, the section will begin reviewing and making recommendations to the various alternate dispute resolution programs on issues of concern. The Section has also continued its commitment to presenting quality CLE programs such as the annual Advanced Trial Advocacy Program, to be held in May at the University of Miami, the Certification Review Course, and a seminar focusing on professionalism in the practice of law. Another ongoing program which has received unanimous support is the Section's Mock Trial Competition for Florida's law students presented during the Bar's Midyear Meeting. Stetson University's two trial teams took first and second place in this year's competition. Ms. Bice stated that in the legislative arena, the section has supported the Cambridge Plan with the help of its lobbyist Buddy Jacobs, and it took an active role in encouraging adequate funding for the judiciary during the legislative session. Ms. Bice concluded by stating that the section will continue production of its newsletter, The Advocate, and will soon publish its annual survey of case law from 1991. Ms. Bice thanked the Board for its continued support. 6. Legislation Committee Report

Chair John DeVault presented the following recommendations of the Legislation Committee (Note: Unless otherwise indicated the Board took the action indicated after first finding the issue within the guidelines for legislative action, and then by the required 2/3 majority vote.): A. Section Legislative Activity Policy (SBP 9.14) Proposed Revision -Chair DeVault reported that the change in the section legislative activity policy was a result of the Frankel decision. Following that ruling, President Hill appointed a

Regular Minutes - Page 6 March 19-20, 1992 special committee, chaired section legislative policy The committee consisted of Council of Sections, which and Barry Richard to draft by George Moss, to examine in light of the Frankel ruling. members from the Board and met with Bar counsel Paul Hill a revised policy.

The revised policy was submitted to various sections and the Legislation Committee of the Council of Sections for consideration. The Public Interest Law Section (PILS) submitted an alternative section legislative policy which featured a notice/estoppel provision rather than a Board approval process to allow section lobbying. The PILS proposal also eliminated any provision which would permit The Florida Bar to consider whether a proposed legislative policy of a section was one which would carry deep philosophical or emotional division among the membership of the Bar, or one which was contrary to the best interest of the Bar as stated in the present policy. Following review by various sections and the Council of Sections, the Special Committee on Section Legislation amended its policy to include a notice provision which would permit a section to give notice to the Board of its lobbying positions, and which requires affirmative action from the Board if the issue is deemed worthy of further review. Mr. DeVault advised that the committee's proposed policy does maintain the language from the Schwarz II decision, which would not permit a section to lobby on an issue "which carries the potential of deep philosophical or emotional division among a substantial segment of the membership of the Bar." Mr. DeVault further stated that for legal reasons and because the sections of The Florida Bar represent the Bar when they speak even as a section, it is important the Bar retain the ability to prevent a section, which is acting on behalf of the Bar, from taking a position that could carry the potential for philosophical or emotional division within The Florida Bar. Accordingly, Mr. DeVault on behalf of the Legislative Committee made a motion, which was seconded, that the Board adopt a new section legislative policy as recommended and drafted by the Special Committee on Section Legislation. President Hill advised that if and when this new policy is adopted, it will be included in the response the Bar will file with regards to the Public Interest Law Section's petition pending at the Supreme Court. Barry Richard, legal counsel to The Florida Bar, advised that the genesis of the language of SBP 9.14(a)(3) of the revised policy was a result of the special committee requesting that he provide them with what was in his opinion, the outer limits of constitutional involvement by the Board in section legislative policy, so that the committee could discuss where the lines could be drawn. Mr. Richard further advised that he drafted a letter to the

Regular Minutes - Page 7 March 19-20, 1992 committee and indicated that the draft revision was designed, in his opinion, to outline how far the Bar could go in having any input in section legislative policy, consistent with the decisions of the U.S. Supreme Court and the Florida Supreme Court's Schwarz ruling. Mr. Richard stated that in the Schwarz opinion, the Court after defining the limits of the Board's role, cautioned it to avoid taking a position on those proposals which may be philosophically or emotionally divisive among members of the Bar. Mr. Richard further reported that the Bar, in his opinion, has three options with respect to section legislative activity, two of which are problematic: 1. The Bar could philosophical limited to in suggested the positions not restrict the sections to lobbying the and emotional positions that the Board is Schwarz. However, in Frankel, the Court sections should be able to lobby permitted as a Bar position.

2.

The sections could be permitted to engage in whatever legislative, philosophical, or emotional positions they desire. The problem with this option is the U.S. Supreme Court has reserved the right to continue looking at the First Amendment "associational" issue raised in the Keller case. The Bar could not review positions of sections for substantive analysis, but could review section positions to be sure they do not cross the bounds into an area which meets the criteria of being a deep philosophical and emotional division within the Bar.

3.

Mr. Richard stated that the history of the Board with regard to Public Interest Law Section positions indicates that the Board has concerned itself with possible emotional divisions among the membership on these positions rather than substantive analysis. President Hill stated the revised policy was presented to the Council of Sections in January, which endorsed the policy in concept by a 11-1 vote, but did not endorse specific language of the policy. He further stated that the Council appointed a special subcommittee, which made an alternative recommendation. This recommendation was reviewed by members of the Council of Sections, and it voted 4-4 on the council and Bar's recommended policy, with the votes of three sections pending, and the remaining not filing a response. During Mr. Hill's brief report on the Council of Sections' position, David Brennan, Chair of the Council of Sections, was in attendance to answer any questions asked by the Board.

Regular Minutes - Page 8 March 19-20, 1992 Robert Sondak stated his opposition to approving language in the revised policy that is vague, adding that the Court was addressing legislative activity by the Bar in the Schwarz ruling. Fred Bosch stated the policy should determine a section's financial independence from compulsory dues. President Hill ruled Mr. Bosch's statement out of order, and Mr. Richard responded that this cannot be addressed today because of complex budgeting decisions, adding that the Board needs to respond to the Court with respect to the Public Interest Law Section's petition by March 27. Mr. Richard further advised that when the Bar uses dues to support a section, and the section uses dues to support a position, the position automatically falls within the Schwarz parameters. George Moss advised that one of the things the Special Committee discussed was the Keller case which addressed whether a mandatory association could use compulsory dues for purposes that do not involve the "trade union" of lawyers. After some discussion, Mr. Bosch made a motion, which was seconded, to delete subdivision (3) of 9.14(a) from the revised policy. Mr. Bosch stated the language is subjective and discriminatory in determining whether a section should be permitted to lobby. He added that there is no suitable criteria that can be used to delimit the areas in which a section can lobby, and that the Board should accept it, and stop spending Bar dues litigating cases that have no merit. Alfred Frigola asked whether the Bar's finding on deep philosophical issues would be final or whether it would be left to the Court. Mr. Richard responded that the final administrative decision would be the Bar's, but the Court could make itself the final arbiter. Several Board members expressed their opposition to Mr. Bosch's amendment in that the section has an "association" with the Bar which imposes certain limitations on a section's legislative ability, and the amendment would remove some control over sections and the authority the Bar has over them. Vic Halbach suggested that additional language be added which would require that section lobbying be within the purposes of The Florida Bar. After consideration, the amendment to delete subdivision (3) of 9.14(a), failed. On the main motion to approve the revised policy, Dianne Smith stated that it was important whether mandatory Bar dues are used, and that the Schwarz decision applies to such dues.

Regular Minutes - Page 9 March 19-20, 1992 After consideration, the main motion to approve a revised section legislative activity policy as drafted by the Special Committee on Section Legislation passed. A copy of SBP 9.14 is attached hereto and made a part of these minutes. Mike Fogarty stated that the Board's establishment of sections was based on specialized areas of substantive law, and that the Public Interest Law Section does not fall within this concept. Accordingly, Mr. Fogarty made a motion to rescind the Public Interest Law Section's bylaws. President Hill ruled the motion out of order and asked that the motion be brought up under new business, reported hereafter. B. Proposed Revision to Standing Board Policy 5.20, Amicus Curiae Positions and Responses by Sections or Committees Chair DeVault presented for Board approval proposed amendments to SBP 5.20 recommended in accordance with amendments made to SBP 9.14, Legislative Activity of Sections. A motion was made and seconded to approve the proposed amendments to SBP 5.20. Robert Sondak, speaking in opposition to the amendments, stated that it was wrong to start policing how the sections can present their opinions to the court. Fred Bosch stated his opposition in that the proposed amendments equates committees with sections, adding that there is no basis to restrict what sections can do because they are not spending compulsory dues. Barry Richard, legal counsel to the Bar, stated this rule has to be amended pursuant to Keller. Mr. Richard stated Keller was not limited to lobbying but included political or ideological positions. He further stated that it is up to the Board as to how it wants to amend the policy in terms of whether to include language addressing deep philosophical or emotional positions. Mr. Richard reported the current policy is in violation of the U.S. Constitution and, thus, must be addressed by the Board. Fred Bosch made a motion, which was seconded, to delete all references to sections in SBP 5.20. Mr. Richard advised that the Board must define what the Bar can do with respect to sections in the legislative and ideological arenas. President Hill asked whether the existing rule as it applies to sections would remain in effect if the word "section" is deleted from the proposed amendments to SBP 5.20. Mr. Richard responded that if sections are removed from the —

Regular Minutes - Page 10 March 19-20, 1992 proposed policy, they then are not covered with respect to SBP 5.20, further adding that it is necessary for the Bar to state the policy and address what a section can do with respect to filing amicus briefs. After consideration, Mr. Bosch's motion to delete all references to sections in SBP 5.20 failed. On the main motion, the proposed amendments to SBP 5.20 passed. A copy of SBP 5.20 is attached hereto and made a part of these minutes. C. Legislative Report on Merit Selection and Retention for Trial Judges and Other Matters — Chair DeVault reported that with the help of Bar lobbyists Rick Sisser and Richard McFarlain, Bar Staff Fred McDowell and Laurel Landry, and President Ben Hill, the Bar was able to retain a provision with respect to the open records amendment that was satisfactory to the Florida Supreme Court and the Bar. The Bar was also successful in passing legislation pertaining to the removal of nominating commission members for cause which was a position supported by the Board, and in retaining a level of judicial funding in which the Court felt it could function. Mr. DeVault reported that increased funding for the judiciary will continue to be on the Bar's agenda for the legislature's special sessions. Mr. DeVault further reported the Bar was successful in getting out of the Florida Senate for the first time, an amendment on merit selection and retention for trial judges. However, two amendments contrary to the Bar's position, were placed on this legislation when taken up by the full Senate. The first amendment would require Senate confirmation of all judges, and in response, the Board's Executive Committee met in an emergency session and concluded many individuals would decline serving on the Bench if a Senate review was required. Mr. DeVault further stated that it would be particularly difficult for appellate judges handling issues involving the State. He reported the Bar's lobbyists were unsuccessful in filing a "pure" bill prior to the end of the session. However, the lobbyists were informed that the merit selection/retention amendment would be included for consideration in the first joint special session of the legislature. The second amendment, which the Bar also sought to modify, would require minority representation in judicial appointments. Mr. DeVault concluded that the legislature, in his opinion, is generally supportive of the Bar's efforts, and the Bar

Regular Minutes - Page 11 March 19-20, 1992 will continue to monitor any amendments placed on this legislation. President Hill remarked that the Legislature is showing signs of becoming more friendly to the Bar's position to provide the people with an amendment that gives them a real choice on how they select their judges. 7_. A. Budget Committee Report Presentation of Proposed 1992-93 Budget of The Florida Bar — Chair-elect Tom Freeman reported that the Bar's current budget is in the black, showing a surplus of $154,000. He reported that with the work of the Budget Committee, the Bar will avoid a dues increase for fiscal year 1992-93. Mr. Freeman reported that when looking at the preparation of the 1992-93 budget, President-elect Alan Dimond requested the budget be cut. Mr. Freeman stated the budget was reduced from what would be expected by allowing for growth and inflation which included cutting Bar staff by five employees. Mr. Freeman advised that the committee made an in-depth analysis of how the Bar's money is spent. Mr. Freeman further reported that the proposed $17 million budget is more than $1 million less than originally requested. It includes an increase from $25 to $50 of the Bar's advertisement review fee which must be approved by the Florida Supreme Court; the committee's intent is to make the program pay for itself. The proposed 1992-93 budget includes reducing funds the Bar spends on outside legislative counsel by approximately 50 percent; no major changes to section budgets, except to allow for the proposed new out-of-state practitioners division; contributing $168,438 to Florida Lawyers Assistance, Inc. for cases not related to discipline; and a decrease in funds for the public relations budget. Mr. Freeman reported the budget will see revenues of $17.1 million, and expenditures of $17 million which will start the year for the Bar's reserves at $3.3 million and ending at $3.5 million. He further reported that $9.8 million of the Bar's income will come from dues with 52.9 percent going to grievance programs, 12 percent for administration, 3.4 percent for the ethics office, 4.4 percent for unlicensed practice of law, 3.6 percent for public information, 4.5 percent for the Journal/News, 3.4 percent for the Clients' Security Fund, and 3.5 percent for legislative activities. Total expenses for the Bar's budget include 35.3 percent for grievance programs, 10.8 percent for CLE programs, 10.2 percent for Journal/News, 7.6 percent for administration, 7.2 percent for legal publications, 4.5 percent for ethics

Regular Minutes - Page 12 March 19-20, 1992 and advertising, 2.1 percent for the Clients' Security Fund, and 2.9 percent for public information. Several concerns stated by some Board members included the impact of the new rules for presidential elections on the budget; the reduction of funds for legislative lobbying; and how the Budget Committee prioritized the Bar's needs. Mr. Freeman advised that there would be no impact to the budget with respect to the new rules for presidential elections and indicated the Budget Committee set priorities on what was important for the Bar's budget. Mr. Freeman stated he would provide the Board with the Budget Committee's minutes at the May meeting to help the Board better understand how the priorities were established for the 1992-93 budget. John DeVault stated his reservation in voting for a budget with a significant reduction in funding for legislative lobbying. Mr. DeVault stated in his experience one cannot even be in the legislative arena without effective lobbying. Fred Bosch also had some reservations and requested that the Budget Committee provide the Board in May with the 1990-91 budget. Chair Austin Peele commented that the Board has until May to finalize the issues presented by various Board members. After consideration and upon motion, the Budget Committee's proposed 1992-93 budget was approved. B. Budget Amendments — Chair Austin Peele reported on the following budget amendments which received Board approval: 1. General Fund a) General CounselOutside Counsel b) Legislation Legislative Counsel Total Expense 20,000 50,300 Net Impact on General Fund 20,000 50,300

Mr. Peele reported the $50,300 amendment to the legislative counsel budget would increase the balance to $150,000. He advised that President Hill met with Richard McFarlain to discuss the extended legislative session and was informed that there could be approximately 68 legislative days between now and June 30 which would increase the Bar's lobbying expenses. Mr. Peele advised that the Bar was budgeted at a $400,000 surplus with the amendments bringing the balance in the

Regular Minutes - Page 13 March 19-20, 1992 operating reserve to less than $100,000. He further reported that investment earnings exceeded initial projections, CLE revenues rose slightly (since December 31, 1991), and Bar staff was trimmed. President Hill concluded that the Board is going to have to decide whether it wants to play in the legislative arena when finalizing next year's budget. Sj. Disciplinary Procedure Committee Report

Chair John Thornton reported on Rule 11-1.8(c), Termination of Certification, and Rule 11-1.9, Certification of Members of Out-of-State Bars and Law Students Following Graduation which was deferred by the Board at its January meeting. The new rules were created out of necessity for the Public Defender's offices, the State Attorney's offices, the Attorney General's office and the Office of the Capital Collateral Representative, and would allow these offices to hire on a temporary basis, out-of-state lawyers and law school graduates that are certified to practice under this rule, up to twelve (12) months while preparing to take the Bar exam. Mr. Bennett Brummer, public defender for the Eleventh Judicial Circuit, briefly commented to the Board that the public defender offices in Florida are struggling within the criminal justice system, and that he is concerned with a provision of the committee's draft which would terminate certification for failure of any portion of The Florida Bar examination. He stated that many individuals fail sections of the Bar exam, and he would not want to see people lose jobs because they failed a section of the exam. Board member William Sizemore inquired about the number of applications sent in to these various offices that were members of The Florida Bar, and Office of the Capital Collateral Representative (OCCR) Larry Spalding responded that his office has had difficulty in recruiting people. He advised that OCCR usually receives one application per month. Bill James, State Attorney for the 13th Judicial Circuit, advised the Board that new employees within his office basically start off at entry level positions and are generally law school seniors or recent graduates. Mr. James further commented that his office is limited to hiring people in law school clinic programs, and these law students assist the court in processing cases. Mr. James stated that the rule would allow him to seek out-of-state attorneys who are primarily assistant U.S. attorneys with significant prior experience. Board member Tom Ervin stated that he, along with Board member Jon Whitney, received strong urging from local state attorneys and public defenders to approve the proposed rules because it would assist their offices in dealing with the enormous caseload.

Regular Minutes - Page 14 March 19-20, 1992 Several Board members expressed their concern about not employing more out of work Florida Bar members to assist the various offices, and a point was raised about providing these same privileges to private law firms. Mr. Spalding stated that with respect to OCCR, anyone who is qualified and willing to do this work would get priority, however, the number of applicants is limited because of the specialized area of law. Mr. Spalding further stated that if OCCR is restricted in who it can bring in, it would not be able to function efficiently and effectively. Mr. Brummer added that the state attorney's offices, public defenders' offices and the OCCR are struggling with enormous caseloads to have a system that people can look to with some respect. He stated that the proposed rules were one of two proposals that came out of The Florida Bar's Criminal Law Section. The other proposal related to the principle that government agencies or government lawyers should not bear unreasonable and excessive caseloads. After consideration, a motion was made, seconded, and passed to approve Rule 11-1.8 and 11-1.9 as proposed by the Disciplinary Procedure Committee. 9_. Report of Special Committee on Presidential Elections Procedures

Chair Ray Ferrero, before reporting on Bar presidential election policies, advised the Board that he is the State Delegate of The Florida Bar to the American Bar Association (ABA). He reported Sam Smith was recently elected secretary-elect of the ABA, and Steve Zack was nominated and elected to the ABA'S Board of Governors. Mr. Ferrero stated eighteen percent of the ABA's Board of Governors will be Florida attorneys. He will be writing to the Board for input on the ABA's presidential election procedures. Mr. Ferrero reported the rule changes recently passed by the Board included no campaigning prior to April 15 with the qualifying period starting on May 15 through June 15. Additionally, ballots will be mailed in November, and petitions to qualify as a candidate must be signed by one percent of the Bar members in good standing. Mr. Ferrero reported that when this matter was first assigned to the committee, it was because there was clearly a feeling among the Bar leadership that something had to be done to the Bar's presidential electoral process which would allow the membership as a whole to participate in the process. The other major concern of the committee and the Board was the cost of these elections, and the time devoted to running for the Bar presidency. The committee felt it could solve the concerns by shortening the campaigning period which would also reduce the campaign costs.

Regular Minutes - Page 15 March 19-20, 1992 Mr. Ferrero reported the committee, in proposing two versions of amendments to Standing Board Policy (SBP) 1.25, Election of President-elect, was strongly in support of alternative fl, which did not offer the opt-out provision for candidates with respect to the presidential election procedures. The committee's recommended policy would provide for the candidate the following amenities at actual cost: 1. 2. 3. 4. 5. 6. 7. 8. 9. One set of labels per candidate ($1,410 plus tax) One Bar membership list per candidate ($1,410 plus tax) A "Question & Answer" and platform statement in the Bar News (Free) Four campaign ads up to 1/2 page (cost reduction from $1,035 to $425) Two Bar News Inserts ($2,100) Ballot Inserts (Free) Insert in convention registration packets (Free) All member reception (Free) Display of campaign material at convention (Free)

Mr. Ferrero stated that proposed alternative #1 of SBP 1.25 would allow someone to participate in the election at a substantial savings. A motion was made to suport the committee's position (approve SBP 1.25 without the opt-out provision). John DeVault asked why the committee did not recommend the opt-out provision, and Mr. Ferrero advised that the committee, in considering both versions, was concerned with whether the Bar could mandate that candidates be required to adhere to these types of restrictions. In referring this issue to Bar staff, the committee was advised that the Bar does have authority to make such requirements. Joe Serota asked whether the proposed policy would do anything in terms of encouraging an individual to run. Mr. Ferrero responded it would have no effect on the person's desire to run; however, the cost savings would be relatively significant and would encourage more members to consider the Bar presidency, adding that a credible campaign could be had for less than $50,000. Tom Freeman expressed his reservation regarding the committee's proposed policy in that a candidate should have the right to opt-out of the mandatory requirements, and further stating that the policy may be unduly restrictive. Several Board members inquired as to whether a candidate could write individual letters requesting support and to what extent the bar labels and membership list could be used by the candidate or outside organization to solicit support. Mr. Ferrero advised it was not the intent of the committee to prohibit a candidate from having other organizations do a mailing on one's behalf, adding that the candidate and his or her law firm would be prohibited under this policy from paying for or devising the mailing. Mr. Ferrero stated the committee's decision to limit

Regular Minutes - Page 16 March 19-20, 1992 the number of labels was to allow full information to be received by the Bar members in the most cost efficient way without duplicating efforts. William Blews stated his opposition to the proposed policy in that it unfairly restricts a candidate's ability to communicate and be known to members of the Bar, adding that the limitations restrict the ability to get the candidate's message across. Pat Casey made a motion, which was seconded, to amend the committee's proposed policy to delete the words "authorize or" from subdivision (c)(2) of SBP 1.25. Mr. Ferrero stated the entire policy would be amended to conform to Mr. Casey's amendment if approved. Mr. Freeman, speaking against the amendment, stated the best way to address the concerns of the Board is to provide an opt-out provision on a trial basis rather than amend the policy. Additionally, a suggestion was made to define "participate" and "mailing" within the policy and to clearly state the intent of the committee. Mr. Casey accepted the amendment to his motion to only include authorizing the committee to draft the definition of "participate" to be consistent with the expressed intent of the committee. After consideration, Mr. Casey's amendment was approved. President Hill advised that the committee would also define "mailing" in the policy consistent with the committee's intent. Don Gifford stated the policy should include two mailings to allow one mailing to the entire Bar membership and an additional targeted mailing. Accordingly, a motion was made and seconded to permit two mailings in SBP 1.25. Michael McNerney stated the policy as written allows for two mailings either by inserts or labels, and Mr. Casey, concurring, indicated the policy provides for the candidate to contact the membership at eight (8) different times. John DeVault added that the chief directive of the committee was to reduce costs and, by expanding the mailings, the purpose would be defeated. After consideration, Mr. Gifford's motion to include two mailings failed. On the main motion, Fred Bosch requested a roll call vote which failed for a lack of five votes. President Hill advised the Board vote would be based on the assumption that the rule changes filed with the Court would be approved, as the basic changes to the rules reflect different filing and balloting dates. After consideration, SBP 1.25 as amended was approved.

Regular Minutes - Page 17 March 19-20, 1992 A copy of SBP 1.25 as amended will be included in the May materials for approval of the additional definitions. 10. Rules of Judicial Administration Committee Report

Judge Manual Menendez appeared on behalf of Chair Tony Musto to request Board approval of four (4) proposed amendments to Rule 2.060(b), Motion for Permission to Appear. Judge Menendez reported that this rule was considered by the Rules of Judicial Administration Committee at the request of The Florida Bar's Unlicensed Practice of Law Department, which has received a number of inquiries about the rule. Judge Menendez stated the committee's first proposed amendment would rename the rule, "Motion for Permission to Appear," which Judge Menendez stated was for clarification of subject matter. Judge Menendez further reported the committee addressed what effect inactive status had with regard to the rule and stated that in many states inactive members are still considered members in good standing. Judge Menendez advised that the current rule states you have to be a member in good standing; thus, an attorney could still petition to appear in Florida though they are inactive and not allowed to practice in their home state. Accordingly, the committee proposed an amendment which would require a nonmember attorney be an active member of their respective bar(s) and present this information in a verified motion. The third proposed amendment would require a motion for permission to appear be submitted with or before the attorney's initial personal appearance, paper, motion or pleading. The current rule allows submission before trial or oral agreement. The fourth proposed amendment would require the motion state all jurisdictions in which an attorney is an active member in good standing of the bar, and the number of cases in which the attorney has filed a motion for permission to appear in Florida in the preceding three (3) years. Several concerns were raised by Board members which included requiring the nonmember attorney to provide the types of cases rather than the number of cases filed in Florida; ambiguity of the last sentence in the rule; and not requiring the nonmember attorney to obtain local counsel. A motion was made and seconded to amend the rule to include a requirement that a nonmember attorney must seek permission and be granted permission before they can file a pleading or appear in a case pending in Florida. Scott Baena commented that such an amendment would burden the Court with unnecessary procedures. After consideration, the motion to amend failed. Scott Baena made a motion, which was seconded, to amend the rule to require a nonmember attorney be sponsored by local counsel on whom

Regular Minutes - Page 18 March 19-20, 1992 pleadings can be served, and to delete the last sentence of the rule which reads as follows: "Attorneys of other states shall not do a general practice unless they are members of The Florida Bar in good standing." A concern was raised about the Board making amendments to the rule, and President Hill advised that the Board's actions will be submitted to the Court as comments to the Rules of Judicial Administration Committee's proposed amendments. After consideration, Mr. Baena's motion passed. Judge Menendez advised that the rule as it currently exists has no provision to limit the number of appearances of nonmember attorneys. Edwin Mulock suggested the rule should limit a nonmember attorney to one appearance every three years. Accordingly, a motion to amend was made and seconded to include a limitation of two appearances every three years by nonmember attorneys. Several Board members stated their opposition to the motion in that it would burden the litigants, create territorialism, and be perceived as protectionist legislation that has no public interest. After consideration, the motion to include a limitation of two appearances every three years failed. By a 36-0 vote, the Board approved Rule 2.060(b) as amended to include a provision requiring local counsel and the deletion of the last sentence of the current rule. Rule 2.060(b) will be filed with the Florida Supreme Court as part of the Rules of Judicial Administration Committee's four year cycle rule amendments. 11. Health Law Section Annual Report

Chair Andrew Rock was introduced by Board liaison Michael A. Fogarty. Mr. Rock reported the Health Law Section has currently 789 members with approximately 30-40 affiliate members. He stated that CLE programs have been the primary focus of the section this year. Since last June, the section has presented several CLE seminars which included a program on health care contracts at last year's Annual Meeting; a joint CLE program last September with the Florida Association of Hospital Attorneys addressing practical and legal aspects of hospital management; and a seminar at the Bar's Midyear Meeting focusing on fraud and abuse of medicare. In addition, the section continues to publish its newsletter 3-4 times a year. Another area of focus for the section this year was in legislative activity involving health care surrogate laws and the living will

Regular Minutes - Page 19 March 19-20, 1992 law. With the help of the Florida Medical Association and the Florida Hospital Association/ the section was successful in encouraging the Florida Legislature to adopt comprehensive legislation in the area of advance directives. Other activities undertaken by the section include continued discussion with the Florida Medical Association and the county medical associations on joint medical and legal rules on such topics as depositions and medical malpractice; joint projects with the Florida Association of Hospital Attorneys and various national organizations; and work with the Council of Sections on its various activities. Another area of interest by the section is implementing board certification in the area of health law. Mr. Rock thanked the Board for its continued support of the section's activities. 12. Report of Special Committee on Evaluation of Disciplinary Enforcement

Chair Tom Ervin reported on the committee's current activities, stating that the committee has reviewed and is unanimously in favor of a concept of diversion for a majority of minor cases now being handled in the disciplinary process including the concept of an "ethics school". Mr. Ervin stated that as a general matter, all matters which are now defined as minor misconduct would be eligible for the diversionary program, but would not necessarily be recommended for diversion. He added there would also be other cases which may not be minor misconduct that might be considered for diversion from the disciplinary system. Other ideas agreed upon by the committee included diversion should be at the consent of the Bar and the respondent, and that the respondent could reject diversion if they insisted on a trial; the client or claimant acceptance should not be required in order for diversion to occur; and the grievance committee, once it has heard the initial presentation, should have the authority to recommend diversion even if it has not been recommended previously by the Bar counsel and agreed upon by the respondent. The committee is also considering quarterly ethics schools at two locations with instructors or possibly videotaped programs, and other forms of rehabilitative diversionary programs such as local mentors. Mr. Ervin stated the committee has requested input from several Bar committees including the Bench/Bar Commission and will be drafting a report for conceptual approval at the Board's May meeting. Mr. Ervin concluded his report by stating the diversionary program would attempt to identify attorneys at an early stage without having them go through the disciplinary procedures. President Hill advised that President-elect Alan Dimond has agreed that the proposed program will continue into the next Bar year with

Regular Minutes - Page 20 March 19-20, 1992 a concrete proposal. He remarked it is something that could revolutionize the Bar's disciplinary process. 13. Legal Technicians Study Committee Report

Chair Gregory Presnell briefly reported on the activities of the Legal Technicians Study Committee. Mr. Presnell reported the committee had taken additional public testimony on the issue of legal technicians and will convene a final public hearing on April 21 at Nova University. He stated the committee will then begin deliberations with respect to its recommendations. It is the intent of the committee to provide a preliminary report with recommendations at the Board's May meeting. Mr. Presnell added that the committee has found the issue of legal technicians more complex than anticipated. Al Frigola commented as to why the term "legal technician" has been used to identify individuals doing such business, adding that it elevates these persons to a level of recognition. In response, Mr. Presnell stated the committee inherited the term from other states which used the terminology to distinguish legal technicians from paralegals. 14 . Investment Committee Report

Chair Gregory Presnell reported on the investment status for the year ending December 31, 1991. Mr. Presnell advised that after adopting a new investment policy, the committee established four goals: (1) to hire a financial consultant to help design an investment policy which included the employment of professional money managers; (2) implement an investment policy which would provide for a conservative allocation of the Bar's assets; (3) to obtain professional money managers to handle long term assets; and (4) to obtain a return over the Bar's historical seven (7) percent yield. Mr. Presnell reported the Bar's $8.4 million in long-term assets were divided between the Bar's money managers, SunBank and Barnett Bank. The plan allows the banks to invest up to 35 percent of the Bar's fund in stocks, dividing the rest among more conservative investments. Mr. Presnell further reported the new investment program has been in effect for approximately seventeen (17) months and for the year ending December 31, 1991, the Bar has earned an annual return on its long-term portfolio of 17.6 percent, 35 percent on its stock investments and 14.8 percent on its fixed rate investments. Mr. Presnell stated the Bar's initial investment of $8.4 million is now worth $10.5 million, and that under the old investment policy, it would have only been worth $9.2 million; thus, reflecting an incremental return of $1.25 million.

Regular Minutes - Page 21 March 19-20, 1992 Mr. Presnell concluded by stating the Bar has had a remarkable eighteen (18) month period in the capital markets but not to expect these kinds of returns in the future. He added that hopefully through conservative money management, the Bar could continue to beat the markets and have a very conservative and safe investment policy that produces favorable returns. 15 . Executive Director's Report

Joh F. Harkness stated that in furtherance of the Supreme Court Racial and Ethnic Bias Study Commission's recommendation, The Florida Bar has drafted a written affirmative action policy that includes a statistical breakdown of current minority employment at the Bar. Mr. Harkness advised that the Bar has always had an affirmative action policy, but it has not been formalized in writing. He stated the Bar would be disseminating employment information similar to what is done by the Governor's Office and Cabinet in attracting minority applicants. He further advised the Bar has had difficulty in attracting minority applicants for professional positions and stated that in many cases resumes are submitted in place of the Bar's employment application which asks, on a optional basis, the minority status of an applicant. Mr. Harkness added the Bar would made a conscious effort over the next year to fill half the vacancies with minorities. 16. Access to the Legal System Committee Report

Chair Robert Sondak reported on the following items: A. Simple Will and Step-parent Adoption Forms — Mr. Sondak reported that the proposed simple will form would apply only for married or single people with children. The will provides that all the signee's assets would be left to his or her spouse, or if not married, then divided equally among the children. If a child has died, that child's share would be split between any descendents. The remaining portions of the form cover nomination of a guardian and personal representative. Mr. Sondak stated there is a large segment of the people in the State of Florida who do not have wills because of the cost. Mr. Sondak added there are simple will forms on the market that people can buy, however, there is no control over the quality of those forms. He further stated the Legal Technicians Study Committee surveyed judges and found they overwhelmingly expressed the view that wills ought to be written by lawyers exclusively. Stewart Marshall, on behalf of the Real Property, Probate and Trust Law Section, stated wills were too complex for a simple form to meet all of the potential problems. He further stated the proposed simple will may cause problems

Regular Minutes - Page 22 March 19-20, 1992 when there is a spouse and children from a previous marriage, adding that these types of wills, in his opinion, would not be in the best interest of the public. Mr. Marshall advised the Board that a form will does exist called "form of intestate succession", which costs more than a normal will, but would be less expensive than probating an improperly prepared simple will. Greg Presnell, Chair of the Legal Technicians Study Committee, commented that the only thing the Board would be doing if it approved the form, is to further unleash the unlicensed practice of law in the state to the detriment of the public. Austin Peele, in accordance with Mr. Marshall and Mr. Presnell's position, stated his concern with the economic issue for lawyers. William Sizemore recommended the Bar wait to see if the need for simple wills is met by the new voluntary pro bono plan recently ordered by the Florida Supreme Court. William Spencer added that, in his opinion, simple wills do not exist, and the Board should tell the Court that it does not believe a simple will should be promulgated that would be administered by nonlawyers. Pat Casey, in favor of the proposed form, stated simple wills were better than no wills, and though the form is not a complete document, it does certain things that are very fundamental. Mr. Sondak also stated his concern with the form in that it may give legitimacy to legal technicians, however, it is an outgrowth of the same concerns that led to the Court's mandating of pro bono reporting. Mr. Sondak further stated that opposing such simplified legal forms would not alleviate the unlicensed practice of law. After consideration and upon motion, the Board, by a 14-22 vote, disapproved the simple will form as proposed by the committee. On the issue of step-parent adoption forms, Robert Palmer reported the only controversy with the form is that it does not require the consent of an absent parent who has been absent for a certain length of time. David Korones, Chair of the Family Law Section, advised the Board that the Florida Legislature recently passed a new adoption statute which may need to be reviewed before consideration of this form. Mr. Palmer stated the new statute almost exclusively involves independent adoptions. Hearing no opposition, President Hill deferred consideration of the step-parent adoption form until the new adoption statute has been reviewed.

Regular Minutes - Page 23 March 19-20, 1992 Mike McNerney inquired as to whether the Board had a format to address the Court with its concerns about the simple will form, and President Hill stated an informal conference would be the best forum to talk to the Court about the Bar's concerns with respect to simplified forms. Barry Richard reported to the Board on the liability issue for simplified legal forms. In his opinion, there was no material exposure to liability. Mr. Richard stated promulgation of the forms would not expose the lawyer who worked on the preparation of the forms to liability since there would be no privity between the individual and the lawyer. He further stated he does not foresee a problem unless there is a radical change in Florida law. B. Supreme Court February 20 Order on Pro Bono Plan — Chair Robert Sondak reported that on February 20, 1992, the Florida Supreme Court issued its opinion on the pro bono petition. He reviewed for Board members the background that attorney Sandy D'Alemberte's petition was filed with the Court seeking a form of mandatory pro bono. The Florida Bar/Florida Bar Foundation Joint Commission on the Delivery of Legal Services to the Indigent in Florida was then established which reviewed the petition and recommended twenty (20) pro bono hours or a $350 fee with mandatory reporting. The Bar, in reviewing the recommendations, opposed this requirement and the petition's narrow definition of what constituted pro bono. In the Court's ruling, it basically adopted the joint commission's position that pro bono services be provided through local circuit committees. Each circuit court chief judge would be responsible for implementing the pro bono plan within the circuit, thus bringing the lawyers of that circuit into the program. Mr. Sondak reported the Court is looking to the Joint Commission to begin the implementation rules which must be submitted to the Court by September 1, 1992. He stated the Board and the Bar will have to assist in drafting rule changes, collecting the required data and reporting attorney compliance to the Court. Mr. Sondak further stated the Board may be asked to create a standing committee to monitor compliance circuit by circuit. He further advised that there may be a budgetary impact which has not been reflected in the 1992-93 budget. Mr. Sondak also stated the pro bono rules will have to address the question of sitting judges and government lawyers who have ethical and statutory restrictions. Additionally, the Court will reconsider the program two years from its initial implementation, and depending on the level of compliance, Mr. Sondak stated there may be a renewed drive for mandatory pro bono during the review process.

Regular Minutes - Page 24 March 19-20, 1992 President Hill advised that the joint commission, not the Board, will implement the program, and in order not to lose control or considerable input, a meeting was convened with leaders of the commission in Tallahassee to discuss the implementation process. Mr. Hill stated the Bar is trying to encourage the joint commission to institute the pro bono plan in a lawyer-friendly manner. Mr. Hill further stated a conference will be convened at the Bar convention on June 27 encompassing circuit chief judges, voluntary bar representatives, and members of the joint commission, to discuss preliminary plans and gather input from the respective attendees. He advised that rules are being drafted by Bar staff and The Florida Bar Foundation for possible review by the Board in May. Mr. Hill also reported he has met with Justice Overton, author of the Court's opinion, and indicated that he wants the Bar to be closely involved in the implementation plan. Mr. Hill advised that President-elect Alan Dimond has requested to be removed from the joint commission and will be replaced by Board member John Thornton. He added that the rules for the pro bono plan will probably be approved after September 1, and the reporting will in all probability be done on the Bar dues statement. President Hill further added that many circuits have pro bono service opportunities which may adversely impact the reporting requirement. Al Frigola stated his concern that there is a possible liability factor for lawyers practicing in an area where they are not competent. He further stated the pro bono plan must also consider government attorneys who are prohibited from engaging in private practice. George Moss inquired as to why the Court chose the joint commission to implement the pro bono plan, and President Hill responded that the Court felt it would be the quickest way to institute the program, adding that the Court felt the Bar had enough representation on the joint commission to ensure the Bar's concerns were addressed. John Fisher stated his opposition to the Court's opinion and indicated his concern that the Court did not seek more input from the Board. He stated that requiring lawyers to report all pro bono work would be offensive and questioned the Court's right to inquire about such information. Mr. Fisher further expressed his concern about the relationship between the Court and the Bar, stating the history of this relationship has changed in recent years. Walter Campbell asked whether it would be appropriate to draft a resolution to the Court expressing the Board's concerns, and President Hill responded that Bar leadership meets with the justices on a regular basis and would be able to express the Board's concerns informally.

Regular Minutes - Page 25 March 19-20, 1992 17. A. Program Evaluation Committee Report Clients' Security Fund Evaluation — Chair Pat Casey presented PEG'S goals and objectives and recommendations of the Clients' Security Fund (CSF) Program as follows: Goals and Objectives: 1. 2. 3. 4. 5. Continuation of Clients' Security Fund Program. Solve the CSF funding crisis but respond to call to prioritize this program in The Florida Bar budget. Pay small claims in full. Immediately move to $15 per MIG allocation without drastic reallocation from other programs. Reduce claims and exposure to the CSF. —

PEC Recommendations I.

Annually limit dollars spent on CSF to the greater of: A. B. Fixed budget amount of $15 per MIG (i.e., $705,000); or Amount necessary to pay 100% of all claims up to $10,000.

II.

If the fixed budget amount exceeds the amount necessary to pay claims up to $10,000, pro rate the remaining fund balance among approved claims on a pro rata basis up to separate limits of $50,000. If total payments of 100% of small claims up to $10,000 exceed the fixed budget amount, then a budget amendment will be necessary (use of reserve). Immediately move to a $15 per MIG funding for 1992-93: A. In 1992-1993, maintain a budget minimum of $7.20 from dues and balance $7.80 from CSF reserves. This would reduce the $1.2 million CSF reserve budget by $350,000. In 1993-1994 and later years, move to a $15 per MIG allocation within dues budget by increasing CSF allocation $1.95 per year and fund the balance from reserves.

III.

IV.

B.

Regular Minutes - Page 26 March 19-20, 1992 C. In the event of a dues increase, fund the entire $15 from dues budget and maintain reserves.

V.

Reduce the number of claimants and CSF exposure. A. B. More study to define victims; review investment related transactions. Do not ordinarily consider claims until all civil remedies have been pursued, i.e., bonds, liability policies, partners, estate, etc. Require claimants to file criminal complaints. In cooperation with probate lawyers of the Real Property, Probate and Trust Law Section, develop a bond requirement for all attorneys who serve as fiduciaries of estates and guardianships.

C. D.

Mr. Casey reported the Bar's CSF program is not a cure for lawyers' misappropriation, but an attempt by the Bar to partially ameliorate lawyer misappropriation. He further stated that the Bar must have some budget limitation on the amount allocated to CSF, adding that the Bar this year has been able to control the budget limitation by placing a temporary cap of $650,000 on claim payments. Mr. Casey further advised that a significant majority of the claims, approximately 72 percent, could be paid in full using the $10,000 cap. Mr. Casey also reported that a high percentage of claims involve lawyers serving as fiduciaries of estates and guardianships. The committee, concerned with the effects of bonding, felt that if bonding could be obtained on a cost efficient basis, it would dramatically reduce the amount of CSF claims. Accordingly, a motion was made to approve in concept all of PEC's recommendations. President Hill advised that these recommendations were action items that would require rule changes, and that further consideration of these recommendations would be made at the Board's May meeting. Several points expressed by the Board included the obligations of the CSF placed on government lawyers and judges who do not maintain trust accounts; a possible dues increase to maintain the CSF program; maintaining the CSF cap at $25,000 rather than $50,000; implementing a tracking system of defalcating attorneys and their criminal activities; and requiring repayment to the CSF as part of the probationary process of an attorney who has been criminally prosecuted.

Regular Minutes - Page 27 March 19-20, 1992 Al Frigola stated PEC's report indicated that a significant amount of claims result from defalcation from probate and guardianship attorneys. He stated the Board may want to consider a requirement that an attorney acting as a personal representative or guardian be bonded by the Court. President Hill advised that the Real Property, Probate and Trust Law Section has been approached with this concept, and the section's Probate Committee has tentatively agreed to draft a rule with respect to this issue for consideration by the Court. Budget Chair Austin Peele commented that the information PEC gathered indicated that CSF was a priority program, and that the Board has to recognize what its priorities are. He further stated the Bar will either have to have a dues increase or cut other Bar programs in order to sustain the CSF. After consideration, the motion to approve in concept all four of PEC's recommendations were approved. B. Proposed YLD Judicial Clerkship Program — Chair Pat Casey reported that PEC has reviewed the Young Lawyers Division's application to request the Bar to sponsor the judicial clerkship program, a program which places law clerks with chief judges in Florida. Mr. Casey advised that the program was previously funded by the Florida Legislature and that it should remain as such; thus, YLD's request was not approved. The committee felt it was a worthwhile program but not a program of The Florida Bar. C. Proposed Minority Stipend Program —

PEC also reviewed the Committee on Equal Opportunities in the Profession's proposal for a minority stipend program. The program, modeled after North Carolina's program, would provide financial assistance to minority law graduates while preparing to take the Bar Exam. PEC has deferred the proposal to the Board's Implementation Committee for consideration. 18. Lawyer Referral Service Committee Report

Chair Cindy White appeared before the Board to request amendments to 4-7.2, Advertising, and 4-7.5, Evaluations of Advertisements, include lawyer referral service advertising. Pursuant to the Board's request at its January meeting, the Lawyer Referral Service (LRS) Committee met with the Standing Committee on Advertising which approved the amendments to the following advertising rules:

Regular Minutes - Page 28 March 19-20, 1992

1.

4-7.2(d), Disclosure Statement — The proposed amendment provides a requirement that lawyer referral services include a disclosure statement as set forth by the Standing Committee on Advertising.

2.

4-7.2(1), Location of Practice — The proposed amendment would require that a lawyer referral service disclose the geographic area in which the lawyer practices when a referral is made.

3.

4-7.2(n)(10), Permissible Content of Advertisements — The proposed addition of subparagraph (10) would create the opportunity for any lawyer referral service, whether non-profit or for-profit, to produce an exempt advertisement under Rule 4-7.2(n). As in the case of an advertisement by a lawyer or law firm that goes beyond the parameters of an exempt advertisement, an advertisement by a lawyer referral service that contains information beyond that specified in subparagraph (10) would be considered non-exempt and would need to contain the disclosure statement in 4-7.2(d) and be filed with the Standing Committee on Advertising for review.

4.

The proposed amendments to 4-7.5 would track the proposed changes made to 2-7.2.

Staff Counsel John Berry advised the amendments were also approved by the Disciplinary Procedure Committee. Pat Casey asked whether the word "and" in subparagraph (10), line 5 of Rule 4-7.2(n) should be included, and Ms. White advised that it was a typographical error and not the language approved by the two respective committees. President Hill accepted Mr. Casey's inquiry as an amendment. After consideration and upon motion, the amendments to 4-7.2 and 4-7.5 were approved. A copy of Rule 4-7.2 and 4-7.5 as amended are attached hereto and made a part of these minutes. The other item reported by Ms. White requested Board consideration of the Miami Beach Bar Association's request to create a pro bono lawyer referral service. Ms. White stated the Association applied for lawyer referral service status in September 1991, and its application was reviewed by the LRS Committee at its January meeting. Ms. White further stated that the Association was asked by the LRS Committee to apply because of pending rule changes at the Florida Supreme Court. The rule changes would expand the definition of a lawyer referral service to be any group advertising where people are referred to a set panel of attorneys. She stated the LRS Committee filed a comment with the Court asking that

Regular Minutes - Page 29 March 19-20, 1992 language be added to the rule to make clear that pro bono referral services are not intended to be encompassed as lawyer referral services because they operate differently in terms of funding, attorneys, standards, etc. President Hill deferred the Miami Beach Bar Association's request to the appropriate committee for consideration and to report back to the Board. 19. Family Law Section Report

Chair David Korones reported to the Board the Family Law Section's intention to file a petition asking the Florida Supreme Court to establish a family law rules committee within The Florida Bar that would draft separate rules for the practice of family law. Mr. Korones stated that in every instance in which there has been a separate family law division created in the State of Florida, that court has had a separate set of rules and procedures. In light of the Florida Supreme Court mandating the creation of the family law divisions in each circuit, the section feels the time is appropriate to create a separate set of family law rules. President Hill inquired as to whether the Family Law Section's position should be reviewed by the Civil Procedure Rules Committee or any other existing Bar committee. Mr. Korones responded there would be no purpose served by that action, and the section should be able to go directly to the Court with its request. Mr. Korones further stated the section is not proposing rules at this time, but is asking the Court to establish a family law rules committee. Michael J. McNerney stated that if a family law rules committee is created, it may need to coordinate with the Civil Procedure Rules Committee when drafting the new rules. Dale R. Sanders asked what rules would be unique within the practice of family law that are not addressed by the Rules of Civil Procedure. Mr. Korones responded there are several areas where the Court has had to adopt separate family law rules within the Rules of Civil Procedure. He stated separate rules would be needed in the area of mediation, physical and mental examinations, and possibly injunctions. He further stated that in his opinion, the practice of family law is not like the practice of a tort case or a contract litigation case, and there are many individuals in favor of separate rules for the practice of family law. A motion was made, seconded and passed to allow the Family Law Section to petition the Florida Supreme Court to require The Florida Bar to establish a family law rules committee. Some concern was raised as whether the Court would ask for Bar input on the section's petition, and Thomas Ervin recommended, with President Hill concurring, that input be sought from the Civil Procedure Rules Committee.

Regular Minutes - Page 30 March 19-20, 1992 20. Public Relations Committee Report

Chair Sandy Karlan reported the committee has been working on three public service announcement spots for the 1992-93 Florida Bar PSA campaign. Elaine Silverstein and Jennifer Beber of Beber, Silverstein and Partners presented for Board consideration the following three PSA advertisements: A. "Not Asking Too Much" — This advertisement encourages the public to serve on a jury. The commercial encourages a greater willingness to participate through a reminder that a trial by jury is an American right; a reminder that only as jurors can citizens control the legal system ensuring justice within current social and moral standards; and elevation of jury duty to patriotic service. The advertisement uses stock footage of various wars in which Americans have died to preserve individual rights. B. "Living Will" — This advertisement encourages individuals to make living wills. The ad shows that living wills help to avoid wrenching decisions for families and help ensure that an individual is treated according to his or her wishes. The ad also shows that living wills are relatively simple and inexpensive, thus helping to demonstrate that the legal system is not necessarily costly or complex, but is a tool for all individuals. The topic helps to demonstrate that lawyers can be good citizens and good lawyers. The advertisement depicts the story of a father told by the son as he looks back at slides of his childhood, and it celebrates the father's life and his ability to choose rather than focusing on death. C. "Family Homelessness" — This advertisement focuses on family homelessness. The ad touches on the disruption of education and a potentially dangerous environment for children. The ad also addresses the realization that the situation may doom homeless children to failure, as victims or victimizers, thus involving these children in the legal system. The advertisement features the first moments of a baby's life with a voice-over explaining the problem and offering a call-to-action. Ms. Beber advised that the cost of the advertisements would be approximately $50,000 each. Several Board members expressed their concern about the three PSAs which included not addressing the Korean and Vietnam veterans in

Regular Minutes - Page 31 March 19-20, 1992 the jury spot ad; whether the homeless ad had any special relevance to The Florida Bar, and if the ad meets the criteria as set forth by Schwarz; and the unclear connection between war and jury service. A motion was made and seconded to eliminate the "Homelessness" advertisement. Tom Ervin, speaking against the motion, stated that when the Board was considering public service announcements, one of its main criteria was to address the image of the Bar by having social oriented spots, adding that the homeless ad falls within this parameter. After consideration, the motion to eliminate the "homelessness" spot passed. A motion was then made and seconded to approve the "jury service" and "living will" spots, first in concept, then in specific treatment as presented by the committee. Fred Bosch stated his support of the "jury duty" spot, but recommended that war images not be used to convey the need to serve as a juror. He stated the spot should emphasize the people's role in the law. William Sizemore expressed his opposition to the PSAs in that the cost of $150,000 could be used more effectively, and Mike McNerney stated that the PSAs as presented were not as well focused as the previously produced spots. Ms. Silverstein stated that the "jury service" spot was designed to convey this country's long tradition of fighting and defending for things people believe in. She further stated the spot should convey the idea that if we are asking for young people to go to war and possibly not come back, then it is not too much to ask that one go to jury service. Bob Sondak stated the "living will" spot will more than likely generate a large amount of phone calls which the Bar will have to address, and Sandy Karlan responded that the Bar could possibly mail an informational pamphlet on living wills. After consideration, the Board approved the "living will" PSA spot in concept and the specific treatment as proposed by the committee. The Board then approved the "jury service" PSA spot, first in concept, then by a 14-12 vote, the Board approved the treatment as proposed by the committee. 21. Young Lawyers Division Report

President Robert Palmer reported that ten (10) clerks have been selected for the Judicial Clerkship Program. Mr. Palmer stated although the Program Evaluation Committee did not recommend that it

Regular Minutes - Page 32 March 19-20, 1992 be a Bar-sponsored program, YLD has received another source of funding. Mr. Palmer also reported that the Florida Lawyers Mutual Insurance Corporation has donated $3,000 for co-sponsorship of YLD's moot court program. Mr. Palmer further reported the YLD will be presenting the Bridge-the-Gap program live at seven locations with several Board members serving as speakers. YLD also completed its Christmas in January project, which provided 1,500 needy children with toys and clothes this year, and it plans to present a pro bono award at the Bar's Annual Convention to honor those individuals involved in legal service programs. The idea was suggested by Steve Goldstein, the 1992 recipient of the Tobias Simon Pro Bono Award. 22. President' s Report

President Hill reported on several items including: a) Appointment of Implementation Committee for Committee on Equal Opportunities in the Profession Recommendations — The following individuals were appointed to the implementation committee: 1. 2. 3. 4. Dale R. Sanders, Chair John R. Marks III, Vice Chair Edwin C. Cluster William E. Sizemore 5. 6. 7. 8. Mark S. Gallegos Henry Latimer Dianne S. Smith Robert Q. Williams

President Hill advised that the committee's first assignment would be the minority stipend program. The program, proposed by the Committee on Equal Opportunities in the Profession, would provide minority law students with a stipend eight weeks prior to taking the Bar exam, which would alleviate the need for the student to be employed while studying for the Bar exam. b) ABA Midyear Meeting Report —

President Hill advised that during the American Bar Association's (ABA) Midyear Meeting, the House of Delegates considered the McKay Commission report and voted to eliminate grievance committees in the disciplinary system. As a compromise, a provision was added which would not require state bars with successful grievance committees to consider changes to their disciplinary process. c) Authorized House Counsel Rule — President Hill recommended the appointment of an Authorized House Counsel Rule Study Committee to redraft the proposal previously rejected by the Supreme Court. The appointees included Scott L. Baena as chair, Walter G. Campbell, Jr.,

Regular Minutes - Page 33 March 19-20, 1992 Martin Goldsmith, J. Lloyd Nault and William S. Spencer as members. d) May Special Appointments — President Hill advised the Board will be making a number of appointments at its May meeting, including judicial nominating commission (JNC) appointments. He further advised that Florida Statute requires The Florida Bar appointees include at least one minority or woman, and that when seeking potential nominees, each Board member must make certain that the person is committed and is not taking part in the JNC with a private agenda. 23. Special Appointments

After consideration of all applicants, the Board of Governors elected Terrence J. Russell of Fort Lauderdale and Robert C. Palmer III of Pensacola to the two lawyer vacancies on the Board of Directors of The Florida Bar Foundation for three-year terms, effective July 1, 1992. 24. A. New Business John DeVault presented for consideration proposed Standing Board Policy 5.26 which would require new sections and committees to be reviewed by the Program Evaluation Committee and the Rules and Bylaws Committee at the end of a three (3) year time period to determine if the goals of that section or committee are being met and whether it is financially self-sufficient. Mr. DeVault further reported that proposed SBP 5.26 would be forwarded to PEC and the Rules and Bylaws Committee for its review and then brought back to the Board's May meeting for final approval. After consideration, a motion was made, seconded and passed to approve SBP 5.26 in concept. B. As reported under the Legislation Committee Report, the Board deferred Board member Michael Fogarty's motion to rescind the Public Interest Law Section's (PILS) bylaws. Mr. Fogarty stated that the section, in its petition to the Florida Supreme Court, said if it could not argue controversial positions, there was little use for the group. Mr. Fogarty further stated that if the limitation of deep philosophical or emotional issues is removed from Standing Board Policy 9.14, there would be, in his opinion, little support by the Board in continuing the section. Mr. Fogarty further stated that the Court should be told in the Bar's response that in the event this limitation is removed, then PILS would no longer exist by vote of this Board. Accordingly, Mr. Fogarty made a motion pursuant to Rule

Regular Minutes - Page 34 March 19-20, 1992 2-7.3, which was seconded, that the Board abolish the Public Interest Law Section. Bob Sondak made a motion, which was seconded and passed, to table the motion until a time certain at the next Board meeting. Mr. Fogarty made a follow-up motion to instruct the Bar's counsel to tell the Court in its response to the PILS petition that the Board of Governors believes that if the limitation of deep philosophical or emotional division is removed from section lobbying, the Public Interest Law Section will be abolished by vote of this Board. Board member Greg Presnell made a motion to amend Mr. Fogarty's motion, to have Bar counsel instruct the Court that based on the PILS position as stated in their petition, the Board of Governors would have to consider the abolition of the section. Mr. Fogarty accepted the amendment to his motion. Tom Ervin then made a motion to adjourn, which was seconded. Mr. Fogarty then asked for a point order to determine if Mr. Ervin's motion takes precedence if it is offered to kill a motion currently on the floor. Mr. Ervin's motion was determined to be a "privileged motion", thus, by a 13-15 vote, Mr. Ervin's motion failed. On the main motion, several Board members expressed their concern that taking a position to consider abolishing PILS would place the Court in an awkward position, in that if it rules in favor of PILS it may cause the section's demise. Other concerns raised by some Board members included the abolition of PILS' substantive committees such as the Legal Needs of Children and Delivery of Legal Services Committees, and allowing PILS to appear before PEC and the Budget Committee in a due process forum. Mr. Fogarty stated the issue of abolishing the section is not a question of fundamental fairness, but occurred because PILS filed a lawsuit against the Bar and mandated the Bar to respond by a date certain. He further stated that the Board must respond, and it does not have the option of providing due process to the section for this reason. Mr. Fogarty reiterated that the Board has tried to work with the sections to develop a section legislative policy that would be acceptable to everyone. John DeVault, speaking against the motion, stated he is in support of the Bar's section legislative policy, however, it is not fair to consider abolition without due process, and it would place the Bar in a bad position before the Court.

Regular Minutes - Page 35 March 19-20, 1992 After consideration, the motion to have Bar counsel instruct the Court that the Board of Governors would have to consider the abolition of PILS failed. 25. Deferred Agenda Items

The following items were deferred until the May Board meeting: A. B. C. D. E. 26. Chapter 13, Authorized Legal Aid Practitioners Rule Rule 3-4.8, Respondent's obligation to respond Rule 3-7.6, Procedures before a referee President-elect's Report Report of the Board Review Committee on Professional Ethics Time and Place of Next Meeting

The time and place of the next regularly scheduled meeting of the Board of Governors is May 13-16, 1992 Pier House Key West, Florida There being no further business before the Board, the meeting was adjourned at 4:15 p.m. on Friday, March 20, 1992. espectfullvsubmitted, !arol L. Bracy | Secretary to the Board of Governors

03040 9.14
03041 03042

Legislative Action of Sections.

(a)

A section may engage in lobbying or take a position

03043 on a legislative or constitutional measure only when all of the 03044 following criteria are met: 03045 03046 (1) The issue involved is within the section's

03047 subject matter jurisdiction as described in the section's bylaws; 03048 03049 (2) The issue is beyond the scope of permissible

03050 legislative or ideological activity of The Florida Bar, or the 03051 issue is within the permissible scope of legislative or 03052 ideological activity of The Florida Bar but the proposed section 03053 position is not inconsistent with an official position of the bar 03054 on that issue; 03055

03056

(3) The issue is not one that carries the potential

03057 of deep philosophical or emotional division among a substantial
03058 segment of the membership of the bar.

03059

(b)

The executive director shall give periodic notice to

03060 the sections of proposed and adopted positions of The Florida Bar 03061 on legislative or other ideological issues. 03062 03063 (c) Sections shall advise The Florida Bar of proposed

03064 legislative or ideological positions by providing written 03065 notification to the executive director. When a decision is

03066 needed within 60 days, the notice shall include an explanation of 03067 the need for an expedited decision, and shall request a specific 03068 deadline for a decision by the bar as to the criteria in 03069 subdivision (a). 03070 03071 (d) When an expedited decision is not requested, review

03072 of proposed section legislative or ideological positions shall be 03073 by the legislation committee and the board of governors. 03074 said review is completed and a written notice of decision 03075 received by the section within 60 days of the executive 03076 director's receipt of the section's notice pursuant to 03077 subdivision (c), the section may lobby on the position unless 03078 advised otherwise by a court of competent jurisdiction. When an Unless

03079 expedited decision is requested, review may be by the executive 03080 committee. When the legislature is in session or an emergency

03081 exists, and the executive committee is unable to act, review may 03082 be by the president in consultation with the president-elect and 03083 the chair of the legislation committee (if possible). 03084 03085 (e) Upon review of a proposed section legislative or

03086 ideological position, the bar may prohibit the section from

03087 advancing such position only when it finds that the position 03088 fails to meet the criteria of subdivision (a). 03089 03090 (f) Whenever the review of a proposed section

03091 legislative or ideological position pursuant to subdivision (d) 03092 is completed in less than 60 days, the bar shall immediately give 03093 written notice to the section of the decision. 03094 03095 (g) When a decision that a proposed section legislative

03096 or or ideological position does not meet the criteria of 03097 subdivision (a) is made by other than the board of governors 03098 pursuant to subdivision (d), the section shall have the right to 03099 have the decision reviewed by the board of governors at the 03100 meeting immediately following the date of the notice to the 03101 section required in subdivision (f). 03102 03103 (h) Sections engaging in legislative activities must

03104 adopt a procedure for determining legislative positions, submit 03105 the procedure to the board of governors and receive the board's Section legislative procedures must include but are

03106 approval.

03107 not limited to the following requirements: 03108 03109 (1) The section shall establish a legislation

03110 committee composed of not less than 3 nor more than 9 members, 03111 with such members appointed for staggered terms.

03112
03113 (2) The executive council of the section, by a 2/3

03114 vote of the members present, must find the proposed legislative

03115 position to be within the scope of subdivision (a) and approve 03116 the position by a majority vote.

03117
03118 (i) Committees of The Florida Bar may advance

03119 legislative positions if authorized as provided in standing board 03120 policies 9.10, 9.11, 9.12 and 9.13.

01793 5.20
01795

Amicus Curiae Positions and Responses by Sections or

01794 Committees.

017.96
01797 01798

(a)

Amicus Curiae Positions.

(1) A section of The Florida Bar may adopt a

01799 position and submit an amicus curiae brief in pending litigation 01800 only when the issue is beyond the scope of permissible 01801 legislative or ideological activity of The Florida Bar, or the 01802 issue is within the permissible legislative or ideological 01803 activity of the bar and the proposed brief does not take a 01804 position that is inconsistent with an official position of the 01805 bar and the requirements of 5.20(a)(3) are met. 01806 01807 (2) A committee of The Florida Bar may adopt a

01808 position and submit an amicus curiae brief in pending litigation 01809 only when the issue is within the scope of permissible 01810 legislative of ideological activity of The Florida Bar and the 01811 proposed brief does not take a position that is inconsistent with 01812 an official position of the Bar and the requirements of 01813 5.20(a)(3) are met.

01814
01815 (3) Neither a section nor a committee may adopt a

01816 position or submit an amicus curiae brief in pending litigation 01817 unless the issue involved is within the area of subject matter 01818 interest of the section or committee as described in its bylaws 01819 or official charge, and the issue is not one that carries the

01820 potential of deep philosophical or emotional division among a 01821 substantial segment of the membership of the bar. 01822 01823 (4) Each section or committee shall provide notice

01824 to the executive committee of the nature of the litigation the 01825 positions(s) sought to be taken by the section or committee as 01826 amicus curiae, the anticipated effect of the litigation and the 01827 final decision, the need for the section or committee to take the 01828 proposed position, the absence or existence of conflict with any 01829 previous position adopted by either the board of governors or any 01830 other section or committee of The Florida Bar and shall indicate 01831 if such other section or committee has been contacted about its 01832 position. Except in emergency situations, this notice, along

01833 with a draft of the amicus curiae brief, shall be provided at 01834 least 10 days prior to the filing of the brief. In emergency

01835 situations both the 10-day requirement and the prior submission 01836 of a completed amicus curiae brief requirement may be waived by 01837 the president of The Florida Bar. 01838 01839 (5) A section or committee shall not file its

01840 motion for leave to appear or proposed amicus curiae brief 01841 without express consent of the executive committee or the board 01842 of governors. 01843 01844 (6) Any amicus curiae position taken by a section

01845 or committee shall be clearly identified as the action of the 01846 section or committee and not that of The Florida Bar, unless the 01847 board of governors directs otherwise.

01848 01849
01850 01851

(b) Responses.

(1)

A section or committee of The Florida Bar may

adopt a position and respond to a petition to amend any portion

01852 of the Rules Regulating The Florida Bar, after notice as provided 01853 in section 2, below. 01854 01855 (2) Each section or committee shall provide notice

01856 to the executive committee of the nature of the positions(s) to 01857 be taken. Except in emergency situations, the notice, along with

01858 a copy of the response shall be provided to the executive 01859 committee at least 10 days prior to the filing of the response. 01860 In emergency situations both the 10-day prior notice and 01861 submission of a copy of the response requirements may be waived 01862 by the president of The Florida Bar. 01863 01864 (3) Any response made by a section or committee

01865 shall be clearly identified as the action of the section or 01866 committee and not that of The Florida Bar, unless the board of 01867 governors directs otherwise.

4-7.2

ADVERTISING

(a) Permissible Forms of Advertising. Subject to all the requirements set forth in this subchapter 4-7, including the filing requirements of rule 4-7.5, a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, billboards and other signs, radio, television, and recorded messages the public may access by dialing a telephone number, or through written communication not involving solicitation as defined in rule 4-7.4. These rules shall not apply to any advertisement broadcast or disseminated in another jurisdiction in which the advertising lawyer is admitted if such advertisement complies with the rules governing lawyer advertising in that jurisdiction and is not intended for broadcast or dissemination within the State of Florida. (b) Single Voice Requirement; Employee of Lawyer or Law Firm. Advertisements on the electronic media such as television and radio may contain the same factual information and illustrations as permitted in advertisements in the print media, but the information shall be articulated by a single voice, with no background sound other than instrumental music. The voice may be that of a full-time employee of the firm whose services are advertised; it shall not be that of a celebrity whose voice is recognizable to the public. The lawyer or full-time employee of the firm whose services are being advertised may appear on screen or on radio. (c) Name of Lawyer or Lawyer Referral Service. All advertisements and written communications pursuant to these rules shall include the name of at least one ^ lawyer or the lawyer referral service responsible for their content. (d) Disclosure Statement. Except as provided in this paragraph subdivision, all advertisements, other than lawyer referral service advertisements, shall contain the following disclosure: "The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience." Lawyer referral service advertisements shall contain the following disclosure; "The hiring of a lawyer is an important decision. Before you decide to hire the lawyer to whom you are referred, ask the lawyer for written information about that lawyer's qualifications and experience. " Thisese disclosures? need not appear in electronic advertisements or advertisements in the public print media that contain no illustrations and no information other than that listed in paragraph subdivision (n) ( IJ-fSJJ)) of this rule. (e) Dramatizations Prohibited. There shall be no dramatization in any advertisement in any medium. (f) Use of Illustrations. Illustrations used in advertisements shall present information which that can be factually substantiated and is not merely self-laudatory.

(g) Fields of Practice. Every advertisement and written communication that indicates one 1 or more areas of law in which the lawyer or law firm practices shall conform to the requirements of rule 4-7.6.

(h) Disclosure of Liability For Expenses Other Than Fees.
Every advertisement and written communication that contains information about the lawyer's fee, including those which that indicate no fee will be charged in the absence of a recovery, shall disclose whether the client will be liable for any expenses in addition to the fee. Additionally, advertisements and written communications indicating that the charging of a fee is contingent on outcome or that the fee will be a percentage of the recovery shall disclose fit that the client will be liable for expenses regardless of outcome, if the lawyer so intends to hold the client liable; and f2} whether the percentage fee will be computed before expenses are deducted from the recovery, if the lawyer intends to compute the percentage fee before deducting the expenses.

(i) Period For Which Advertised Fee Must be Honored. A
lawyer who advertises a specific fee or range of fees for a particular service shall honor the advertised fee or range of fees for at least 90 days unless the advertisement specifies a shorter period; provided that, for advertisements in the yellow pages of telephone directories or other media not published more frequently than annually, the advertised fee or range of fees shall be honored for no less than one JL year following publication. (j) Self-laudatory Statements. A lawyer shall not make statements which that are merely self-laudatory or statements describing or characterizing the quality of the lawyer's services in advertisements and written communications; provided that, this provision shall not apply to information furnished to a prospective client at that person's request or to information supplied to existing clients. (k) Firm Name. A lawyer shall not advertise services under a name that violates the provisions of rule 4-7.7. (1) Location of Practice. All advertisements and written communications provided for under these rules shall disclose the geographic location, by city or town, of the office in which the lawyer or lawyers who will actually perform the services advertised principally practice law. If the office location is outside a city or town, the county in which the office is located must be disclosed. A lawyer referral service shall disclose the geographic area in which the lawyers practice when a referral is made. (m) Payment by Nonadvertisinq Lawyer. No lawyer shall, directly or indirectly, pay all or a part of the cost of an advertisement by a lawyer not in the same firm unless the advertisement discloses the name and address of the nonadvertising lawyer, the relationship between the advertising lawyer and the nonadvertising lawyer, and whether the advertising lawyer may refer

C(£>

any case received through the advertisement to the nonadvertising lawyer. (n) Permissible Content of Advertisements. The following information in advertisements and written communications shall be presumed not to violate the provisions of rule 4-7.1: 4-7.7, the associated office and "attorney" (1) Subject to the requirements of this rule and rule name of the lawyer or law firm, a listing of lawyers with the firm, office addresses and telephone numbers, telephone service hours, and a designation such as or "law firm."

(2) Date of admission to The Florida Bar and any other bars and a listing of federal courts and jurisdictions other than Florida where the lawyer is licensed to practice. (3) Technical and professional licenses granted by the state or other recognized licensing authorities. (4) Foreign language ability. (5) Fields of law in which the lawyer is-eerti£±ed-er designated practices, subject to the requirements of rule 4-7.6. (6) Prepaid or group legal service plans in which the lawyer participates. (7) Acceptance of credit cards. (8) Fee for initial consultation and fee schedule, subject to the requirements of paragraphs subdivisions (h) and (i) of this rule. (9) A listing of the name and geographic location of a lawyer or law firm as a sponsor of a public service announcement or charitable, civic or community program or event. (10) A lawyer referral service may advertise its name, location, telephone number, the referral fee charged, its hours of operation, the process by which referrals are made, the areas of law in which referrals are offered, the geographic area in which the lawyers practice to whom those responding to the advertisement will be referred, and, if applicable, its nonprofit status, its status as a Florida Bar-approved lawyer referral service, and the logo of its sponsoring bar association. (o) Advertising in Law Directory. Nothing in this rule prohibits a lawyer or law firm from permitting the inclusion in law lists and law directories intended primarily for the use of the legal profession of such information as has traditionally been included in these publications. (P) Maintaining Copies of Advertisements. A copy or recording of an advertisement or written or recorded communication

shall be submitted to the S§tanding 6£ommittee on Aadvertising in accordance with the requirements of rule 4-7.5, and the lawyer shall retain a copy or recording for three 3^ years after its last dissemination along with a record of when and where it was used. (q) Payment For Recommendations; Lawyer Referral Service Fees. A lawyer shall not give anything of value to a person for recommending the lawyer's services, except that a lawyer may pay the reasonable cost of advertising or written or recorded communication permitted by these rules^ and may pay the usual charges of a lawyer referral service or other legal service organization, and may purchase a law practice in accordance with rule 4-1.17.

Comment
To assist the public in obtaining legal services, lawyers should be allowed to make known their services not only through reputation but also through organized information campaigns in the form of advertising. The public's need to know about legal services can be fulfilled in part through advertising which that provides the public with useful, factual information about legal rights and needs and the availability and terms of legal services from a particular lawyer or law firm. This need is particularly acute in the case of persons of moderate means who have not made extensive use of legal services. Nevertheless, certain types of advertising by lawyers create the risk of practices that are misleading or overreaching and can create unwarranted expectations by laymen persons untrained in the law. Such advertising can also adversely affect the public's confidence and trust in our judicial system. In order to balance the public's need for useful information, the state's need to ensure a system by which justice will be administered fairly and properly, as well as the state's need to regulate and monitor the advertising practices of lawyers, and a lawyer's right to advertise the availability of the lawyer's services to the public, this rule permits public dissemination of information concerning a lawyer's name or firm name, address, and telephone number; the kinds of services the lawyer will undertake; the basis on which the lawyer's fees are determined, including prices for specific services and payment and credit arrangements; a lawyer's foreign language ability; names of references and, with their consent, names of clients regularly represented; and other factual information that might invite the attention of those seeking legal assistance. Television is now one of the most powerful media for conveying information to the public; a blanket prohibition against television advertising, therefore, would impede the flow of information about legal services to many sectors of the public. However, the unique characteristics of electronic media, including the pervasiveness of television and radio, the ease with which these media are abused, and the passiveness of the viewer or listener, make the electronic

media especially subject to regulation in the public interest. Therefore, greater restrictions on the manner of television and radio advertising are justified than might be appropriate for advertisements in the other media. To prevent abuses, including potential interferences with the fair and proper administration of justice and the creation of incorrect public perceptions or assumptions about the manner in which our legal system works, and to promote the public's confidence in the legal profession and this country's system of justice while not interfering with the free flow of useful information to prospective users of legal services, it is necessary also to restrict the techniques used in television and radio advertising. Paragraphs Subdivisions (b) and (e) of this rule are designed to ensure that the advertising is not misleading and does not create unreasonable or unrealistic expectations about the results the lawyer may be able to obtain in any particular case, and to encourage a focus on providing useful information to the public about legal rights and needs and the availability and terms of legal services. Thus, the rule allows all lawyer advertisements in which the lawyer personally appears to explain a legal right, the services the lawyer is available to perform, and the lawyer's background and experience. The prohibition in paragraph subdivision (b) against any background sound other than instrumental music precludes, for example, the sound of sirens or car crashes and the use of jingles. Paragraph Subdivision 4-7.l(d) forbids use of testimonials or endorsements from clients or anyone else. Paragraph Subdivision (e) prohibits dramatizations in any advertisement, including those appearing on the electronic media. This is intended to preclude the use of scenes creating suspense, scenes containing exaggerations or situations calling for legal services, scenes creating consumer problems through characterization and dialogue ending with the lawyer solving the problem, and the audio or video portrayal of an event or situation. While informational illustrations may attract attention to the advertisement and help potential clients to understand the advertisement, self-laudatory illustrations are inherently misleading and thus prohibited. As an example, a drawing of a fist, to suggest the lawyer's ability to achieve results, would not be informational and would be barred. Regardless of medium, a lawyer's advertisement should provide only useful, factual information presented in a nonsensational manner. Advertisements utilizing slogans or jingles, or oversized electrical and neon signsx or sound trucks, fail to meet these standards and diminish public confidence in the legal system. The disclosure required by paragraph subdivision (d) of this rule is designed to encourage the informed selection of a lawyer. As provided in rule 4-7.3, a prospective client is entitled to know the experience and qualifications of any lawyer seeking to represent the prospective client. The required disclosure would be ineffective if it appeared in an advertisement so briefly or

minutely as to be overlooked or ignored. Thus in print advertisements, the type size used for the disclosure must be sufficient to cause the disclosure to be conspicuous; in recorded advertisements, the disclosure must be spoken at a speed that allows comprehension by the average listener. This rule does not specify the exact type size to be used for the disclosure or the exact speed at which the disclosure may be spoken; good faith and common sense should serve as adequate guides for any lawyer. Neither this rule nor rule 4-7.4 prohibits communications authorized by law, such as notice to members of a class in class action litigation. This rule applies to advertisements and written communications directed at prospective clients and concerning a lawyer's or law firm's availability to provide legal services. The rule does not apply to communications between lawyers, including brochures used for recruitment purposes.

Paying others to recommend a lawyer
A lawyer is allowed to pay for advertising permitted by this rule and for the purchase of a law practice in accordance with the provisions of rule 4-1.17, but otherwise is not permitted to pay or provide other tangible benefits to another person for procuring professional work. However, a legal aid agency or prepaid legal services plan may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs, subject, however, to the limitations imposed by rule 4-7.8. Paragraph Subdivision (q) does not prohibit paying regular compensation to an assistant, such as a secretary or advertising consultant, to prepare communications permitted by this rule.

Cffc)

RULE 4-7.5

EVALUATION OF ADVERTISEMENTS

(c) Exemptions From Filing Requirement. The following are Eexempt from the filing requirements of paragraph subdivision (b) of this rule are: (1) Any advertisement in any of the public media, including the yellow pages of telephone directories, that contains no illustrations and no information other than that set forth in rule 4-7.2(n) (1)-(8_1()). This exemption extends to television advertisements only if the visual display featured in such advertisements is limited to the words spoken by the announcer. (2) A brief announcement in any of the public media that identifies a lawyer or law firm as a contributor to a specified charity or as a sponsor of a specified charitable, community^ or public interest program, activity or event, provided that the announcement contains no information about the lawyer or law firm other than name, the city where the law offices are located, and the fact of the sponsorship or contribution. (3) A listing or entry in a law list. (4) A newsletter mailed only to existing clients or other lawyers. (5) Professional announcement cards stating new or changed associations, new offices, and similar changes relating to a lawyer or law firm, and which that are mailed only to other lawyers, relatives, close personal friends, and existing clients.

S U B J E C T

I N D E X

March 19-20, 1992 Meeting The Hyatt Regency Westshore Tampa, Florida Subject Access to the Legal System Committee Report Simple Will and Step-parent Adoption Form Supreme Court February 20 Order on Pro Bono Plan Budget Consent Calendar Board of Legal Specialization and Education Recommendations Disciplinary Procedure Committee Recommendations Minutes, Approval of Rules and Bylaws Committee Recommendations UPL Circuit Committee Appointments Deferred Agenda Items Disciplinary Procedure Committee Report Disciplinary Enforcement, Report of Special Committee on Evaluation of Family Law Section Report Guests Executive Director' s Report Health Law Section Annual Report Investment Committee Report Invocation Lawyer Referral Service Committee Report 4-7.2(d), Disclosure Statement 4-7.2(1), Location of Practice 4-7.2(n)(10), Permissible Content of Advertising Legal Technicians Study Committee Report Legislation Committee Report Amicus Curiae Positions and Responses by Sections or Committees, Proposed Revision to SBP 5.20 Merit Selection and Retention Section Legislative Activity Policy (SBP 9.14) Proposed Revision New Business Presidential Elections Procedures, Report of Special Committee on President's Report Equal Opportunities in the Profession recommendations, Appointment of Implementation committee for ABA Midyear meeting report Authorized House Counsel Rule Program Evaluation Committee Report Clients • Security Fund Evaluation Minority Stipend Program, Proposed YLD Judicial Clerkship Program, Proposed Page (s) 21-24 21-23 23-24 11-13 3-4 4 3-4 3 4 3 35 13-14 19-20 29 3 21 18-19 20-21 1 27-29 28 28 28 20 5-11 9-10 10-11 5-9 33-35 14-17 32-33 32 32 32 25-27 25-27 27 27

Subject Index Page 2 Subject Public Relations Committee Report Roll Call Rules of Judicial Administration Committee Report Special Appointments The Florida Bar Foundation, Board of Directors Time and Place of Next Meeting Trial Lawyers Section Annual Report Young Lawyers Division Report Page (s) 30-31 1-2 17-18 33 33 35 5 31-32

Sign up to vote on this title
UsefulNot useful