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Hot Topics in Lawyer Ethics
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Reciprocity There are three types of Admission by Motion (reciprocity) rules: 1) Admission by Motion without reciprocity requirement: lawyer from any other U.S. jurisdiction may be admitted to the practice of law in the foreign jurisdiction without taking an examination as long as the other requirements of the rule are met. 16 states allow this Admission by Motion without reciprocity; 2) Admission by Motion with reciprocity requirement: lawyer may be admitted to the practice of law in foreign jurisdiction only if that lawyer's home state allows admission of foreign lawyers by motion. New Mexico and Pennsylvania allow this Admission by Motion with reciprocity; 3) Admission by Motion with restrictions: lawyer may be admitted to the practice of law in foreign jurisdiction only if the home state's Admission by Motion rule is not more restrictive than the rule in the admitting jurisdiction. Georgia has this type of admission rule. All three allow admission without a bar examination. The Committee report recommends that Florida adopt an Admission by Motion rule based on certain eligibility requirements and the reciprocity of that lawyer’s home state (# 2 above).
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Reciprocity Preliminary report dated 7/24/15 from Vision 2016 Bar Admissions subgroup recommended that the Florida Board of Bar Examiners (FBBE) consider a rule allowing admission by motion in Florida for out-of-state lawyers as long as Florida lawyers have “reciprocity” for admission to practice in other states. The admission by motion rule would allow a lawyer in good standing from another jurisdiction who has practiced 5 out of the last 7 years to apply to become a member of The Florida Bar without examination if all other requirements are met, including a character and fitness review. Any proposed FBBE Rule must be approved by the Florida Supreme Court.
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Reciprocity According to the report, admission by motion, which allows a lawyer admitted in one jurisdiction to be admitted in another jurisdiction without further examination, is permitted in 39 states and the District of Columbia in one of three forms. 15 states allow admission by motion without requiring reciprocity in return; three states match the reciprocity requirements of the applicant’s home state if they are stricter than those states’ requirements; and the remainder merely require reciprocity. The requirements recommended by the MJP committee fell into the middle range of those set by other states. Hawaii, California, Nevada, Montana, Louisiana, Florida, South Carolina, Maryland, Delaware, New Jersey, and Rhode Island do not have admission by motion.
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Reciprocity Average of just under 8,000 lawyers sought admission by motion in U.S. annually over the past five years. The report cited an ABA study showing that there were around 65,000 such motions over the past 10 years and about half of those were for admission to the District of Columbia which allows admission without reciprocity and the rest divided among other states.
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Reciprocity The report recommends the following application restrictions: Must have a J.D. or LL.B degree from an accredited law school. Must be admitted in another jurisdiction, which requires passing a bar exam as a condition of admission. Must have actively practiced for five of the previous seven years. Must not have failed the Florida bar exam within the previous five years. Must be in good standing in all of the jurisdictions where they are licensed. Must not have any pending grievance actions in any jurisdiction. Must pass the Florida Board of Bar Examiners’ character and fitness review.
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Reciprocity The Florida Bar will hold an open hearing September 18, 2015 at its fall meetings at the Tampa Airport Marriott for members to discuss admission by motion/reciprocity. The meeting will begin at 1 p.m. The complete committee report is here: www.floridabar.org/vision2016.www.floridabar.org/vision2016
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Uniform Bar Examination The UBE is a standardized bar examination, developed by the National Conference of Bar Examiners (NCBE). The UBE consists only of the Multistate Bar Examination (MBE), the Multistate Essay Examination (MEE), and Multistate Performance Test (MPT), and offers portability of scores across state lines. As of June 2015, the UBE has been adopted in 16 states. The only southern state is Alabama, which adopted the NBE in 2011. The Bar Vision 2016 Commission Bar Admissions subgroup has discussed the possibility of adopting the Uniform Bar Examination (UBE); however, that subgroup has not made any recommendations regarding the UBE or any other changes to the Bar Admission rules other than reciprocity at this time.
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Pro Hac Vice Pro Hac Vice in Florida RULE 1-3.10 APPEARANCE BY NON-FLORIDA LAWYER IN A FLORIDA COURT (a)Non-Florida Lawyer Appearing in a Florida Court. A practicing lawyer of another state, in good standing and currently eligible to practice, may, upon association of a member of The Florida Bar and verified motion, be permitted to practice upon such conditions as the court deems appropriate under the circumstances of the case. Such lawyer shall comply with the applicable portions of this rule and the Florida Rules of Judicial Administration. (1)Application of Rules Regulating The Florida Bar. Lawyers permitted to appear by this rule shall be subject to these Rules Regulating The Florida Bar while engaged in the permitted representation. (2)General Practice Prohibited. Non-Florida lawyers shall not be permitted to engage in a general practice before Florida courts. For purposes of this rule more than 3 appearances within a 365-day period in separate representations shall be presumed to be a "general practice." (3)Effect of Professional Discipline or Contempt. Non-Florida lawyers who have been disciplined or held in contempt by reason of misconduct committed while engaged in representation that is permitted by this rule shall thereafter be denied admission under this rule and the applicable provisions of the Florida Rules of Judicial Administration.
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Pro Hac Vice Pro Hac Vice in Florida RULE 1-3.10 APPEARANCE BY NON-FLORIDA LAWYER IN A FLORIDA COURT (b)Lawyer Prohibited From Appearing. No lawyer is authorized to appear pursuant to this rule or the applicable portions of the Florida Rules of Judicial Administration if the lawyer: (1)is disbarred or suspended from practice in any jurisdiction; (2)is a Florida resident, unless the attorney has an application pending for admission to The Florida Bar and has not previously been denied admission to The Florida Bar; (3)is a member of The Florida Bar but ineligible to practice law; (4)has previously been disciplined or held in contempt by reason of misconduct committed while engaged in representation permitted pursuant to this rule; (5)has failed to provide notice to The Florida Bar or pay the filing fee as required by this rule; or (6)is engaged in a "general practice" as defined elsewhere in this rule.
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Pro Hac Vice Pro Hac Vice in Florida The Vision 2016 committee report states: “that the global nature of the practice of law from the perspective of a United States lawyer is not hindered by the current rules or the restrictions in the rules. The rules sufficiently allow out-of-state lawyers to practice in the courts of Florida while at the same time protecting the public and the legal system. Consequently, the Committee voted that no changes were necessary to Florida's rules or procedures regarding pro hac vice admission.
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Non-lawyer ownership of law firms Australia, England and Wales allow non-lawyer ownership and regulate external investment in law firms. Law Society of Upper Canada is studying the idea of equity ownership positions in law firms; however, according to a February 25, 2015 article in the Canadian Legal Post, a spokesperson for the Law Society has stated that it will not take a position on the issue before 2016. Every U.S. jurisdiction, except Washington, D.C., currently prohibits outside ownership of law firms. ABA’s model rules also would prohibit non-lawyer ownership of law firms. ABA Commission on Ethics 20/20 released a draft proposal to allow partial non-lawyer ownership, but it backed off after receiving a negative response.
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Non-lawyer ownership of law firms ABA Formal Opinion 464 (August 19, 2013). “lawyer subject to the Model Rules may divide a legal fee with a lawyer or law firm in the other jurisdiction, even if the other lawyer or law firm might eventually distribute some portion of the fee to a nonlawyer, provided that there is no interference with the lawyer’s independent professional judgment.” “(T)his conclusion carries an important limitation. Lawyers must continue to comply with the requirement of Model Rule 5.4(c) to maintain professional independence. Even if the other law firm may be governed by different rules regarding relationships with nonlawyers, a lawyer must not permit a nonlawyer in the other firm to interfere with the lawyer’s own independent professional judgment. As noted above, the actual risk of improper influence is minimal. But the prohibition against improper nonlawyer influence continues regardless of the fee arrangement.” http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal _opinion_464.authcheckdam.pdf http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal _opinion_464.authcheckdam.pdf
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Non-lawyer ownership of law firms The objection to outside ownership/funding is that non-lawyer owners could compromise the lawyers’ independent professional judgment. New York State Bar Association Committee on Professional Ethics Opinion 1038 (12/6/14) Conclusion: New York-based lawyer practicing primarily in New York may not join a D.C. firm that includes a non-lawyer partner. The lawyer is also prohibited from practicing in a firm organized as a wholly-owned subsidiary of that D.C. firm. May 2015 Georgetown Law review article argues for non-lawyer ownership of law firms: http://www.law.georgetown.edu/academics/centers-institutes/legal-profession/upload/Grech- Gordon-Non-Lawyer-Ownership-Paper-Final.pdf http://www.law.georgetown.edu/academics/centers-institutes/legal-profession/upload/Grech- Gordon-Non-Lawyer-Ownership-Paper-Final.pdf “This paper argues that if regulated appropriately as Australia, England and Wales have done, nonlawyer owners of law firms present no risk to the professions core values.”
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Non-lawyer ownership of law firms Current Florida Bar Rule 4-5.4(d) (d) Exercise of Independent Professional Judgment. A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
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Non-lawyer ownership of law firms Current Florida Bar Rule 4-5.4 (e) Nonlawyer Ownership of Authorized Business Entity. A lawyer shall not practice with or in the form of a business entity authorized to practice law for a profit if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or (2) a nonlawyer is a corporate director or officer thereof or occupies the position of similar responsibility in any form of association other than a corporation; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
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Non-lawyer ownership of law firms Public funding of law firms. Argument against publicly funded law firms: focus on profit and stockholders will have a negative effect on lawyers’ independent professional judgment. Argument for publicly funded law firms: emphasis on building long-term value and not short term profits. Article in The Southern California Law Review argues for public funding of law firms: http://lawreview.usc.edu/wp-content/uploads/Molot-Final-PDF.pdf http://lawreview.usc.edu/wp-content/uploads/Molot-Final-PDF.pdf “(This) revised structure would give all of a firm’s constituencies what they so badly crave: a law firm focused on long-term, value-added relationships rather than hourly fees and current billings.
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Non-lawyer limited licensing rules Washington Limited Licensed Legal Technician- Rule 28 of the Admission and Practice Rules (APR) effective Sept. 1, 2012. Scope of Practice Authorized by Limited Practice Rule. The Limited License Legal Technician shall ascertain whether the issue is within the defined practice area for which the LLLT is licensed. If it is not, the LLLT shall not provide the services required on this issue and shall inform the client that the client should seek the services of a lawyer.
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Non-lawyer limited licensing rules Rule 28 If the issue is within the defined practice area, the LLLT may undertake the following: (1) Obtain relevant facts, and explain the relevancy of such information to the client; (2) Inform the client of applicable procedures, including deadlines, documents which must be filed, and the anticipated course of the legal proceeding; (3) Inform the client of applicable procedures for proper service of process and filing of legal documents; (4) Provide the client with self-help materials prepared by a Washington lawyer or approved by the Board, which contain information about relevant legal requirements, case law basis for the client's claim, and venue and jurisdiction requirements; (5) Review documents or exhibits that the client has received from the opposing side, and explain them to the client; (6) Select, complete, file, and effect service of forms that have been approved by the State of Washington, either through a governmental agency or by the Administrative Office of the Courts or the content of which is specified by statute; federal forms; forms prepared by a Washington lawyer; or forms approved by the Board; and advise the client of the significance of the selected forms to the client's case; (7) Perform legal research and draft legal letters and documents beyond what is permitted in the previous paragraph, if the work is reviewed and approved by a Washington lawyer; (8) Advise a client as to other documents that may be necessary to the client's case, and explain how such additional documents or pleadings may affect the client's case; (9) Assist the client in obtaining necessary documents, such as birth, death, or marriage certificates.
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Non-lawyer limited licensing rules Status of Limited Licensing in Florida According to the 8/15/15 Florida Bar News, under Access to Legal Services Limited Scope Representation: “the Vision 2016 Access to Legal Services subgroup “is currently inactive while the Florida Commission on Access to Civil Justice, created by the Supreme Court, conducts its work directly pertaining to access to justice issues. The Florida Commission on Access to Civil Justice website is www.flaccesstojustice.org.”www.flaccesstojustice.org
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Increase in CLE hours and tech competence In July 2015, Florida Bar Board of Governors (BOG) approved proposed amendment to the Bar Rule 6-10.3, minimum continuing legal education standards, which would increase minimum CLE requirements from 30 to 33 hours for each three year cycle and would also require 3 CLE hours in, inter alia, technology related education. The proposed amendment would maintain the 5 hour minimum requirement for legal ethics, professionalism, bias elimination, substance abuse, or mental illness. The BOG also approved an amendment to the Comment to Bar Rule 4-1.1 of the Florida Bar rules to emphasize that a lawyer must be competent in the use of technology (or hire someone who is), and understand of the risks and benefits associated with the use of technology. The rule amendments will be submitted in an omnibus petition to amend The Florida Bar Rules, which will be filed with the Florida Supreme Court in the fall of 2016. Florida lawyers will be solicited to comment on the revisions and those comments will be sent to the Florida Supreme Court with the proposed rule amendments.
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Bar BOG finds that unrequested texts are not prohibited solicitations Florida Bar Standing Committee on Advertising issued an opinion in May 2015 stating that text messages to prospective clients regarding a specific matter were prohibited and violated Bar Rule 4-7.18 since text messages fall within language of the rule’s prohibition against telephone communications and also since the proposal would likely violate federal law. Florida Bar Board of Governors reversed the Advertising Committee’s opinion in July 2015 and found that the law firm can send texts to prospective clients as long as the messages comply with Bar rules on written communications and e-mail. communications.
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Bar BOG finds that unrequested texts are not prohibited solicitations Bar Rules require that the first line of the text state that the communication is “advertising” and, if the text is a communication about a specific matter, it must have language stating that if the recipient already has an attorney, he or she should ignore the text. The text message must also disclose how the law firm obtained the recipient’s name. The law firm that requested the opinion stated that it will keep record of the texts’ content and who received them, and will work with cell phone service providers to ensure that the firm pays for the text if the recipient would pay for it under his or her mobile phone plan.
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Ethic Opinion 14-1 removal of information from social media pages On June 25, 2015, the Florida Bar’s Professional Ethics Committee voted to affirm proposed ethics Advisory Opinion 14-1 with slight modifications after receiving comments from Florida Bar members. The Florida Bar Board of Governors will review the proposed advisory opinion at its Oct. 15-16, 2015, meeting in Jacksonville. The proposed ethics opinion concludes that “a lawyer may advise that a client change privacy settings on the client’s social media pages so that they are not publicly accessible. Provided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence, a lawyer also may advise that a client remove information relevant to the foreseeable proceeding from social media pages as long as an appropriate record of the social media information or data is preserved.” “The general obligation of competence may require the inquirer to advise the client regarding removal of relevant information from the client’s social media pages, including whether removal would violate any legal duties regarding preservation of evidence, regardless of the privacy settings. If a client specifically asks the inquirer regarding removal of information, the lawyer’s advice must comply with Rule 4-3.4(a). What information on a social media page is relevant to reasonably foreseeable litigation is a factual question that must be determined on a case-by-case basis.”
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Final thoughts Thanks for listening and be careful out there!
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