The Florida Bar Re Amendments to Rules

635 So. 2d 968, 1994 WL 138106
CourtSupreme Court of Florida
DecidedJuly 7, 1994
Docket81301, 81527
StatusPublished
Cited by3 cases

This text of 635 So. 2d 968 (The Florida Bar Re Amendments to Rules) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
The Florida Bar Re Amendments to Rules, 635 So. 2d 968, 1994 WL 138106 (Fla. 1994).

Opinion

635 So.2d 968 (1994)

THE FLORIDA BAR RE AMENDMENTS TO RULES REGULATING THE FLORIDA BAR.
AMENDMENT TO THE RULES REGULATING THE FLORIDA BAR — RULE 4-1.8(e).

Nos. 81301, 81527.

Supreme Court of Florida.

April 21, 1994.
Supplemental Order Amending Rule July 7, 1994.

Patricia A. Seitz, President of The Florida Bar, Miami, and John F. Harkness, Jr., Executive Director and John A. Boggs, Director of Lawyer Regulation of The Florida Bar, Tallahassee, for petitioner in No. 81,301.

Thomas A. Pobjecky, Gen. Counsel, Florida Bd. of Bar Examiners, Tallahassee, Randolph Braccialarghe, Nova University, Ft. Lauderdale, Holland & Knight, P.A., Martha W. Barnett, Tallahassee, and Anthony V. Pace, Jr., Boca Raton, responding.

Lawrence R. Metsch and Benjamin R. Metsch of Metsch & Metsch, P.A., Miami, for petitioner in No. 81,527.

Timothy P. Chinaris, Ethics Counsel, and Lilijean Quintiliani, Asst. Ethics Counsel, Tallahassee, Comments by The Florida Bar.

PER CURIAM.

The Florida Bar (Bar), as part of its annual review and with the authorization of the board of governors, petitions the Court to amend or adopt Rules Regulating The Florida Bar 11-1.8, 11-1.9, chapters 13 and 17, and to amend the comment to rule 4-3.3. Lawrence R. Metsch (LRM), representing fifty members[1] of the Bar, petitions the Court to amend rule 4-1.8(e). Anthony Pace, a member of the Bar, asks the Court to amend rule 3-7.6(g)(4).[2] The Bar opposed the LRM petition, and various members of the Bar and public opposed the Bar's petition. Therefore, we consolidated these cases for the purpose of oral argument. We have jurisdiction. Art. V, § 2(a), Fla. Const.

The Bar's petition has the following effects. The proposed amendment to the comment to rule 4-3.3 relates to the duty of a lawyer to disclose perjury by a criminal defendant. The rule directs that a lawyer is not to be a knowing participant in any conduct of a client amounting to a fraud on the court. The comment explains the lawyer's duty and distinguishes an unsworn false statement of a client to a law enforcement officer from any type of false statement of a client made in a court proceeding. We find that this clarifying comment makes it clear that a lawyer has a duty to disclose "any *969 false statements by a client in the course of the court proceeding," including disclosure of any pleadings filed or made in court in which a false statement is made, but that a lawyer does not have a duty to disclose other false statements of a client. With this understanding, we approve the Bar's proposed amendment to the comment.

Because Chapter 11 as a whole contains certain inconsistencies and has been susceptible to differing interpretations, we take this opportunity to amend this rule in its entirety for purposes of clarification.

We have incorporated therein the proposed amendment to rule 11-1.8 (now rule 11-1.9) which provides that if an applicant for admission to the Bar fails any part of the admission exam or is denied admission to the Bar, the applicant's legal intern certification shall be terminated. No party objects to this amendment. It is a reasonable measure and we adopt it.

Proposed rule 11-1.9 (now rule 11-1.10) would authorize law school graduates and lawyers admitted in other jurisdictions hired by specified governmental agencies to be certified to practice prior to bar admission. The proposed rule has no law school clinical education requirement; it thus differs from present rules governing practice in the interim between law school graduation and bar admission. Because the law school clinical training requirement is important to the protection of the public, we reject the proposal as it applies to persons not admitted to any bar; we approve it as it applies to lawyers admitted to practice in another state. Adopting the part of the rule applicable to admitted lawyers will assist the four agencies[3] in their avowed quest for experienced persons, while affording protection to the public.

Proposed amendments to chapter 13 would authorize graduates of American Bar Association-accredited law schools to be employed for up to one year by certified legal aid organizations while seeking admission to the Bar. Like the proposals above, this proposal has no law school clinical education requirement; we therefore reject it. We also strike the sunset provision from chapter 13.

Proposed chapter 17 governs in-house counsel practice. We adopt the rule as proposed by the Bar with exceptions and deletions suggested by W.R. Grace & Co. This adoption of the Grace modifications is premised upon the representation of the Bar that it has reviewed the exceptions and deletions and has no objections thereto.

We also reject the amendment to rule 37.6(g)(4) proposed by Mr. Pace, which would have the effect of removing the referee's discretion to delay ruling on motions until the final hearing. The referee's discretion is reasonable and we reject this suggested amendment.

LRM's proposed amendment would permit a personal injury lawyer to assist a client in obtaining a third-party loan for ordinary living expense (food, clothing, shelter, and transportation). The lawyer would agree to act as trustee for the lender to ensure repayment from the proceeds of any recovery obtained. The Bar argues that the proposed amendment will result in inevitable conflicts of interest among lawyer, client, and lending institution, as well as discouraging settlements. We agree. Rule Regulating The Florida Bar 4-1.8 provides: "A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation... ."[4] Rule 4-1.8(i) provides: "A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client... ."[5] We find that the rule amendment LRM proposes would violate both subsections of rule 4-1.8, thus creating possible conflicts of interest. This Court has disciplined members of the Bar for advancing funds to clients or assisting others to do so. The Fla. Bar v. Hastings, 523 So.2d 571 (Fla. 1988); The Fla. Bar v. Wooten, 452 So.2d 547 (Fla. 1984); The Fla. Bar v. Dawson, 318 So.2d 385 (Fla.), cert. denied, 423 U.S. 995, 96 S.Ct. 422, 46 L.Ed.2d 369 (1975). *970 Lawyers should not be encouraged or allowed to do indirectly what they cannot do directly. The majority of states likewise prohibit this conduct. We therefore reject LRM's proposed rule amendment.

Accordingly, the rules are amended and adopted as reflected in the appendix to this opinion. Committee comments are included for explanation and guidance only and are not adopted as an official part of the rules. These amendments shall take effect upon the release of this opinion.[6] The filing of a motion for rehearing shall not modify the effective date of the rules.

It is so ordered.

BARKETT, C.J., and OVERTON, McDONALD, SHAW, GRIMES, KOGAN and HARDING, JJ., concur.

APPENDIX

The first sentence of the third paragraph under the subheading "False evidence" in the comment to rule 4-3.3 should read as follows:

Except in the defense of a criminally accused, the rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party.

The following should be added to the comment to rule 4-3.3 as a third paragraph under the subheading of "Perjury by a criminal defendant":

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