BOG Meeting 1992 March

8/13/2019 BOG Meeting 1992 March

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THEFLORIDABARMeetingof theBoardofGovernorsMarch19-20, 1992 The Hyatt Regency WestshoreTampa, Florida

REGULARMINUTES

Pursuanttonotice,theregular meetingof theBoardofGovernorsofThe Florida Bar was called to order on Thursday, March 19,1992,attheHyatt Regency Westshore, Tampa, Florida, with PresidentBenjaminH.HillIIIpresiding. _ InvocationTheopening invocationwasgivenbyBoard member DonaldA.Gifford.2. RollCallBoardmembers present at this meeting:

BenjaminH.HillIII, PresidentA.G. Condon,Jr.,First Judicial CircuitEnoch J.Whitney, Second Judicial CircuitThomasM. Ervin,Jr., Second Judicial CircuitS.AustinPeele,ThirdJudicialCircuitJohn A.DeVault III, Fourth Judicial CircuitVictor M.Halbach,Jr., Fourth Judicial CircuitRobertQ.Williams, Fifth Judicial CircuitKyM.Koch, Sixth Judicial CircuitWilliamF.Blews,Sixth JudicialCircuitHorace Smith, Jr., Seventh Judicial CircuitR.Dennis Comfort, Eighth Judicial CircuitJohnEdwin Fisher, Ninth Judicial CircuitGregory A.Presnell,Ninth Judicial CircuitDavid B. King, Ninth Judicial CircuitR.Kent Lilly, Tenth Judicial CircuitPatriciaA.Seitz,Eleventh Judicial CircuitEdwardR.Blumberg, Eleventh Judicial CircuitSandy Karlan, Eleventh Judicial CircuitDianneSaulneySmith, Eleventh Judicial CircuitEdith G.Osman, Eleventh Judicial CircuitJohn W.Thornton,Jr., Eleventh Judicial CircuitRobert M. Sondak, Eleventh Judicial CircuitJoseph H.Serota,Eleventh Judicial CircuitScottL. Baena,Eleventh Judicial CircuitEdwinT.Mulock, Twelfth Judicial CircuitMichaelA.Fogarty,Thirteenth Judicial CircuitDonaldA. Gifford, Thirteenth Judicial CircuitWilliamE.Sizemore,ThirteenthJudicialCircuitC. Douglas Brown, Fourteenth Judicial CircuitPatrick J. Casey, Fifteenth Judicial CircuitAlfred K.Frigola,Sixteenth Judicial Circuit


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RegularMinutes-Page2March19-20,1992MichaelJ.McNerney,Seventeenth Judicial CircuitDaleR.Sanders, Seventeenth Judicial CircuitWilliamS.Spencer, Seventeenth Judicial CircuitWalter G.Campbell,Jr.,Seventeenth Judicial CircuitThomasG.Freeman, Eighteenth Judicial CircuitGeorge H. MossII,Nineteenth Judicial CircuitJohn A.Noland,Twentieth Judicial CircuitWilliamL. Guzzetti,Out-of-StateFrederick J.Bosch,Out-of-StateRobertC.Palmer III,YLDPresidentWayneL.Helsby,YLDPresident-electAbraham S.Fischler,Public MemberTheodore R.Struhl,M.D., Public Member

Absent this entire meeting:AlanT.Dimond,President-electManuel A.Crespo,Eleventh Judicial CircuitStuartZ.Grossman, Eleventh Judicial CircuitTimothy W.Gaskill,Fifteenth Judicial CircuitH.MichaelEasley,Fifteenth Judicial CircuitEdwinMarger,Out-of-State

Absent Thursday only:SandyKarlan,Eleventh Judicial Circuit

Absent Friday only:R.Dennis Comfort, Eighth Judicial CircuitScottL. Baena,Eleventh Judicial Circuit

Staffattending included:JohnF.Harkness, Jr.,Executive DirectorJohnT.Berry,Director, Legal DivisionJohnA. Boggs,Director, Lawyer RegulationPaulF. Hill, Director, Communications Division(Thursday only)G. DanBennett, Director, FinanceandPlanning Division(Thursday only)AllenL.Martin, Director, FinanceandAccounting(Thursday only)Dale A.DeHart,Director, Planning and EvaluationMary EllenBateman, UPLCounselLoriHolcomb,AssistantUPL Counsel(Thursday only)MichaelA.Tartaglia,Director,Programs DivisionGerald A.Butterfield,Director, Public Information and BarServices DepartmentGaryBlankenship,Associate Editor, FloridaBarNewsandJournalMindyBoggs,Assistant to the PresidentCarol L.Bracy,Secretaryto the Board of Governors


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Regular Minutes-Page3March 19-20, 1992

3. GuestsGuests for this meeting included:MarthaCurtis, President, Hillsborough County Chapter, FloridaAssociationforWomenLawyers; MaryHladky,Reporter,BrowardReview; RichardC. McFarlain,Legislative Advisor;Lawrence G. Mathews,Jr.,Incoming Board member; ThomasH.Gonzalez, former Board member; DavidC.Brennan,Chair, CouncilofSections; Kirk Davis, Chair-elect, Health Law Section, in additiontoother individuals indicated hereafter.4. Consent CalendarThe following items on the consent calendar were approved assubmitted:A. Minutes

Minutesof the regular session of the January 23-24, 1992meeting of the Board of Governors were approved asdistributed. Grievance minutes of the January 24, 1992meetingwereapprovedasdistributed. Minutes fromtheFebruary 10, 1992 and February 25, 1992 Executive Committeeconference calls were approved as distributed. Minutes fromtheMarch 2, 1992 Executive Committee conference call wereapproved as amended as to paragraph two, line 7, which wasrewrittentoread:After consideration, the Executive Committeeunanimously agreed to the dismissal of the casescurrently before a referee and referral to anothergrievance committee.

B- UPLCircuit Committee AppointmentsThe Board approved the following appointment:Monte,Gordon,Miami, public memberEleventhCircuitUPLCommittee A

C. Disciplinary Procedure Committee Recommendations1. TheamendmenttoRule3-5.1,TypesofDiscipline,adds

subdivision(j),Disciplinary Resignation, which allowsa respondent to resign membership in The Florida Bar inlieuofdefending against allegationsofdisciplinaryviolations.2. The amendment to Rule3-7.10,Reinstatement andReadmission Procedures, designates resignation in lieuofdisciplinary action as disciplinary resignationand isintendedtomore clearly indicate that suchresignation is a disciplinary sanction.


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RegularMinutes-Page4March19-20,1992

3. TheamendmenttoRule3-7.12, Disciplinary ResignationfromTheFlorida Bar, designates resignationinlieuofdisciplinary actionasdisciplinary resignationand isintended to more clearly indicate that such resignationisadisciplinary sanction.Asummaryof theamendmentswaspublishedin theMarch 1issueof TheFloridaBarNews.

D. Rules and Bylaws Committee Recommendations1. CouncilofSection BylawsThese new bylaws govern the conduct of the business andmakeup of thecouncil.

E. BoardofLegal SpecializationandEducation Recommendations1. Rule1-12.1, AmendmenttoRules; Authority; Notice;Procedures; Comments

This amendment altersthemethodforamendmentof thestandards for individual areas of certification underChapter6,Rules Regulating The Florida Bar.2. Rule6-1.4,Amendments

This amendment clarifies that Chapter6 isamendedbypetition to the court, except the list of approveddesignation areas and the standards for individualareas of certification, which are amended by the bar.3. Rule 6-2.2, AreasofPermitted Designation

This amendment allowsthe bar toamendthelistofapproved designation areas without advance courtapproval.4. Rule6-3.2, Certification Committees

This amendment expands the size ofcertificationcommittees from7 to 9members.5. Rule6-3.12, Amendments

Theamendment allows standardsforindividual areasofcertificationto beamendedby theboardofgovernorsconsistent with the notice and publication requirementsset forth in rule 1-12.1.

6. 600 series ELSE PoliciesAmendments conform this seriesof ELSEpoliciestocontinuing legal eduction requirements approved by thecourt by order dated October 10, 1991 and effectiveJanuary1,1992.


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RegularMinutes-Page5March 19-20,1992

5_ . TrialLawyersSectionAnnual ReportChairJean BicewasintroducedbyBoard liaison John DeVault.Ms. Bice reported that the section currently maintains a littlelessthan 6,000 membersand, byconsolidating operations,itanticipates an increased fund balance from$30,000to$60,000.Ms.Bice reported thattheExecutive Councilof thesectionmet ina two-day retreat in October, 1991, to evaluate ongoing programs,prioritizetheassetsof thesection,andplan future direction.During theretreat,two main areas of concern were discussed:(1)theCivilTrial Certification Program; and(2)alternatedispute resolution programs. The Council hopes to be able tointerface with theCivilTrial Certification Committee to provide amechanism forinput fromthesection,and byappointingacommittee,thesection will begin reviewingandmakingrecommendations to the various alternate dispute resolutionprogramsonissuesofconcern.TheSectionhasalso continueditscommitmenttopresenting qualityCLEprograms suchas theannual Advanced Trial AdvocacyProgram,tobeheldin May at theUniversityofMiami,theCertification ReviewCourse,and aseminar focusingonprofessionalismin thepracticeoflaw. Anotherongoingprogramwhichhas received unanimoussupportis theSection's Mock Trial CompetitionforFlorida'slawstudents presented during theBar'sMidyear Meeting. StetsonUniversity's two trial teams took first and second place in thisyear'scompetition.Ms.Bice stated thatin thelegislative arena,thesectionhassupportedtheCambridge Plan withthehelpof itslobbyist BuddyJacobs,and ittookanactive roleinencouraging adequate fundingfor thejudiciary duringthelegislative session.Ms.Bice concludedbystating thatthe sectionwillcontinueproductionof itsnewsletter,TheAdvocate,andwill soon publishitsannual surveyofcaselawfrom1991.Ms. Bice thankedtheBoardfor itscontinued support.

6. Legislation Committee ReportChair John DeVault presentedthefollowing recommendationsof theLegislation Committee (Note: Unless otherwise indicated the Boardtooktheaction indicated after first findingtheissue withintheguidelines forlegislative action,andthenby therequired2/3majority vote.):A. SectionLegislativeActivity Policy (SBP 9.14)ProposedRevision --

ChairDeVault reported thatthechangein thesectionlegislativeactivity policywas aresultof theFrankeldecision. Following that ruling, President Hill appointed a


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RegularMinutes - Page 6March19-20,1992

special committee, chaired by George Moss, to examinesection legislative policyinlightof theFrankel ruling.The committee consisted of members from the Board andCouncil ofSections,which met with Bar counsel Paul HillandBarryRichardtodraftarevised policy.The revised policy was submitted to various sections and theLegislation Committeeof theCouncilofSectionsforconsideration. ThePublic InterestLawSection(PILS)submitted an alternative section legislative policy whichfeaturedanotice/estoppel provision rather thanaBoardapproval process to allow section lobbying. The PILSproposal also eliminated any provision which would permitThe Florida Bar to consider whether aproposedlegislativepolicy of a section was one which would carry deepphilosophicaloremotional division amongthemembershipofthe Bar, or one which was contrary to the best interest ofthe Bar asstatedin thepresent policy.Following reviewbyvarious sectionsand theCouncilofSections, the Special Committee on Section Legislationamended its policy to include a notice provision which wouldpermitasectiontogivenoticeto theBoardof itslobbyingpositions, and which requires affirmative action from theBoardif theissueisdeemed worthyoffurther review. Mr.DeVault advised that the committee's proposed policy doesmaintainthelanguagefromtheSchwarzIIdecision, whichwould not permit a section to lobby on an issue whichcarriesthepotentialofdeep philosophicaloremotionaldivisionamongasubstantial segmentof themembershipoftheBar. Mr. DeVault further stated that for legalreasonsandbecause the sections of The Florida BarrepresenttheBarwhen they speak even as a section, it is important theBarretain the ability to prevent a section, which is actingonbehalfof theBar,fromtakingaposition that couldcarry the potential for philosophical or emotional divisionwithin The Florida Bar. Accordingly, Mr. DeVault on behalfofthe Legislative Committee made a motion, which wasseconded, that the Board adopt a new section legislativepolicy as recommended and drafted by the Special CommitteeonSection Legislation.President Hill advised thatif andwhen thisnewpolicyisadopted,itwillbeincludedin theresponsethe Barwillfilewith regards to the Public Interest LawSection'spetition pending at the Supreme Court.Barry Richard, legal counsel to The Florida Bar, advisedthat thegenesisof thelanguageofSBP9.14(a)(3)of therevised policy was a result of the special committeerequesting thatheprovide them with whatwas in hisopinion,theouter limitsofconstitutional involvementbytheBoardinsection legislative policy,sothatthecommitteecould discuss where the lines could be drawn.Mr.Richard further advised thathedraftedaletterto the


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committeeandindicated thatthedraft revisionwasdesigned,in hisopinion,tooutlinehow far the Barcouldgoinhavinganyinputinsection legislative policy,consistent withthedecisionsof theU.S. Supreme Courtandthe Florida SupremeCourt'sSchwarz ruling. Mr. Richardstated that in the Schwarz opinion, the Court after definingthelimitsof theBoard'srole,cautionedit toavoidtakingapositiononthose proposals whichmay bephilosophicallyoremotionally divisive among membersof theBar.Mr. Richard further reported that the Bar, in his opinion,hasthree options with respect to section legislativeactivity,two ofwhichareproblematic:1. The Bar could restrict the sections to lobbying thephilosophicalandemotional positions thattheBoardislimited to inSchwarz. However,inFrankel,theCourtsuggested the sections should be able to lobbypositions not permitted as a Bar position.2. The sections could be permitted to engage in whateverlegislative, philosophical, or emotional positions theydesire. The problem with this option is the U.S.Supreme Courthasreservedtherighttocontinuelookingat the First Amendment associational issueraisedin theKeller case.3. The Barcouldnotreview positionsofsectionsforsubstantive analysis, but could review sectionpositions to be sure they do not cross the bounds intoanarea which meets the criteria of being a deepphilosophical and emotional division within the Bar.Mr.Richard stated thatthehistoryof theBoard with regardtoPublic Interest Law Section positions indicates that theBoard has concerned itself with possible emotional divisionsamongthe membership on these positions rather thansubstantive analysis.President Hill stated the revised policy was presented totheCouncilofSectionsinJanuary, which endorsedthepolicyinconceptby a11-1 vote,but did notendorsespecific language of the policy. He further stated that theCouncil appointed a special subcommittee, which made analternative recommendation. This recommendationwasreviewedbymembersof theCouncilofSections,and itvoted4-4on the council andBar'srecommended policy, with thevotesofthree sections pending,and theremainingnotfilinga response.During Mr.Hill'sbrief report on the Council ofSections'position, DavidBrennan,Chairof theCouncilofSections,was in attendance to answer any questions asked by theBoard.


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RegularMinutes-Page8March 19-20, 1992

RobertSondakstated his opposition to approving language inthe revised policy that is vague, adding that the Court wasaddressinglegislative activityby the Bar in theSchwarzruling.Fred Bosch statedthepolicy should determineasection'sfinancial independence from compulsorydues. PresidentHillruledMr.Bosch'sstatementout oforder,and Mr.Richardresponded that this cannot be addressed today because ofcomplex budgeting decisions, adding that the Board needs torespondto theCourtwithrespectto thePublicInterestLawSection'spetition by March 27. Mr. Richard further advisedthatwhen the Bar uses dues to support a section, and thesection uses duestosupportaposition,thepositionautomatically falls withintheSchwarz parameters.George Moss advised that one of the things the SpecialCommittee discussedwas theKeller case which addressedwhetheramandatory association couldusecompulsory duesforpurposes that do not involve the trade union oflawyers.After some discussion,Mr.Bosch madea motion,whichwasseconded,todelete subdivision(3) of9.14(a)fromtherevisedpolicy. Mr. Bosch stated the language is subjectiveanddiscriminatoryindeterminingwhetherasectionshouldbe permitted to lobby. He added that there is no suitablecriteria that can be used to delimit the areas in which asection can lobby, and that the Board should accept it, andstop spendingBardues litigating cases that havenomerit.Alfred Frigolaasked whethertheBar'sfindingondeepphilosophical issues would befinalor whether it would beleftto the Court. Mr. Richard responded that the finaladministrative decision would be theBar's,but the Courtcouldmake itself the finalarbiter.Several Board members expressed their oppositiontoMr.Bosch'samendment in that the section has anassociation withthe Barwhich imposes certain limitationsonasection'slegislative ability,and theamendment wouldremove some control over sectionsand theauthoritythe Barhasover them.VicHalbachsuggestedthat additional languagebeaddedwhich would require that section lobbying be within thepurposes of The Florida Bar.Afterconsideration, theamendmenttodelete subdivision(3)of9.14(a),failed.On the main motion to approve the revised policy,DianneSmith stated thatit wasimportant whether mandatoryBardues are used, and that the Schwarz decision applies to suchdues.


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RegularMinutes - Page 9March 19-20,1992

Afterconsideration,themainmotiontoapprovearevisedsection legislative activity policyasdraftedby theSpecialCommittee on Section Legislation passed.Acopyof SBP9.14isattached heretoandmadeapartofthese minutes.MikeFogartystated thattheBoard's establishmentofsections was based on specialized areas of substantive law,andthatthePublic InterestLawSection doesnotfallwithin this concept. Accordingly, Mr. Fogarty made a motiontorescind the Public Interest LawSection'sbylaws.PresidentHill ruled the motion out of order andaskedthatthemotion be brought up under newbusiness,reportedhereafter.

B. Proposed Revision toStandingBoard Policy 5.20, AmicusCuriae PositionsandResponsesbySectionsorCommittees Chair DeVault presented for Board approval proposedamendments to SBP5.20recommended in accordance withamendments madeto SBP9.14, Legislative ActivityofSections. A motion was made and seconded to approve theproposed amendments to SBP5.20.Robert Sondak, speaking in opposition to the amendments,stated that it was wrong to start policing how thesectionscanpresent their opinions to the court. Fred Bosch statedhisoppositioninthattheproposed amendments equatescommittees with sections, adding that there is nobasistorestrict what sectionscan dobecause theyare notspendingcompulsory dues.Barry Richard, legal counsel to the Bar, stated this rulehasto be amended pursuant to Keller. Mr. Richard statedKeller was notlimitedtolobbyingbutincluded politicalorideological positions. Hefurther stated thatit is up totheBoardas to how itwantstoamendthepolicyintermsofwhether to include language addressing deep philosophical oremotional positions. Mr. Richard reported thecurrentpolicyis inviolationof theU.S. Constitution and, thus,mustbe addressed by the Board.FredBosch made a motion, which was seconded, todeleteallreferencestosectionsin SBP5.20.Mr. Richard advised that the Board must define what the Barcan dowith respecttosectionsin thelegislativeandideologicalarenas.President Hill asked whether the existing rule as it appliestosections would remainineffectif theword section isdeleted fromthe proposed amendments to SBP5.20. Mr.Richardresponded thatifsectionsareremoved fromthe


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Regular Minutes - Page 10March19-20, 1992proposedpolicy,they then are not covered with respect toSBP5.20,further adding that it isnecessaryfor the Bar tostate the policy and address what a section can do withrespecttofilingamicusbriefs.Afterconsideration,Mr.Bosch'smotion to delete allreferences tosectionsin SBP5.20 failed.On the main motion, the proposed amendments to SBP 5.20passed.A copy of SBP 5.20 is attached hereto and made a part ofthese minutes.

C. Legislative Report on Merit Selection and Retention forTrialJudgesandOther MattersChair DeVault reported that with the help of Bar lobbyistsRickSisserandRichardMcFarlain,BarStaff FredMcDowellandLaurelLandry,and President Ben Hill, the Bar was ableto retain a provision with respect to the open recordsamendment that was satisfactory to the Florida Supreme Courtandthe Bar. The Bar was also successful in passinglegislation pertainingto theremovalofnominatingcommission members for cause which was a position supportedby the Board, and in retaining a level ofjudicialfundinginwhichtheCourt feltitcould function. Mr.DeVaultreported that increased fundingfor thejudiciary willcontinue to be on the Bar's agenda for thelegislature'sspecial sessions.Mr. DeVault further reported the Bar was successful ingetting out of the Florida Senate for the first time, anamendment on merit selection and retention for trial judges.However,twoamendments contraryto theBar's position,wereplaced on this legislation when taken up by thefullSenate.The first amendment would require Senate confirmation of alljudges, and in response, theBoard'sExecutive Committee metinanemergency sessionandconcluded many individuals woulddecline serving on the Bench if a Senate review wasrequired. Mr.DeVault further stated thatitwouldbeparticularly difficultforappellate judges handling issuesinvolvingthe State. He reported theBar'slobbyists wereunsuccessfulinfilinga"pure" bill priorto the end of thesession. However,thelobbyists were informed thatthemerit selection/retention amendment would be included forconsideration in the first joint special session of thelegislature.The second amendment, which the Bar also sought to modify,would require minority representation in judicialappointments.Mr.DeVault concluded thatthelegislature,in hisopinion,isgenerally supportiveof theBar's efforts,and the Bar


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Regular Minutes-Page11March19-20, 1992willcontinuetomonitoranyamendments placedonthislegislation.PresidentHillremarked thattheLegislature isshowingsigns ofbecomingmore friendlyto theBar'sposition toprovidethepeople withanamendment that gives themarealchoice on how they select their judges.

7_ . Budget Committee ReportA. Presentation ofProposed 1992-93 Budgetof TheFloridaBar

Chair-elect Tom Freeman reported that theBar's currentbudgetis in theblack, showingasurplusof$154,000. Hereported that with the work of the Budget Committee, the Barwillavoid a dues increase for fiscal year 1992-93.Mr.Freeman reported that when lookingat thepreparationofthe1992-93 budget, President-elect AlanDimond requestedthebudgetbecut. Mr.Freeman statedthebudgetwasreduced from what would be expected by allowing for growthandinflation which included cuttingBarstaffbyfiveemployees. Mr. Freeman advised that the committee made anin-depthanalysisof how theBar's money isspent.Mr.Freeman further reported that the proposed $17 millionbudget ismore than$1million less than originallyrequested. Itincludesanincrease from$25 to $50 of theBar's advertisement review fee which must be approved by theFlorida Supreme Court; the committee's intent is to make theprogram pay for itself. The proposed 1992-93 budgetincludes reducing funds the Bar spends on outsidelegislative counsel by approximately 50 percent; no majorchangestosection budgets, excepttoallowfor the proposednewout-of-statepractitioners division; contributing$168,438toFloridaLawyers Assistance, Inc.forcasesnotrelated todiscipline;and adecrease infundsfor thepublicrelations budget.Mr. Freeman reported the budget will see revenues of $17.1million, and expenditures of $17 million which willstartthe year for the Bar's reserves at $3.3 million and endingat$3.5 million. He further reported that $9.8 million oftheBar'sincome will come from dueswith52.9percentgoingtogrievance programs, 12percentforadministration,3.4percent for the ethics office, 4.4 percent for unlicensedpracticeoflaw,3.6percentforpublic information,4.5percentfor theJournal/News 3.4percentfor theClients'Security Fund, and 3.5 percent for legislative activities.Total expenses for the Bar's budget include 35.3 percent forgrievanceprograms,10.8percent for CLEprograms, 10.2percentforJournal/News 7.6percentforadministration,7.2percent for legal publications, 4.5 percent for ethics


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Regular Minutes -Page12March19-20, 1992andadvertising, 2.1 percent for theClients'Security Fund,and2.9 percent for public information.Several concerns stated by some Board members included theimpactof the new rules for presidential elections on thebudget; the reduction of funds for legislative lobbying; andhow the Budget Committee prioritized theBar's needs.Mr. Freeman advised that there would be no impact to thebudget with respect to the new rules for presidentialelections and indicated the Budget Committee set prioritiesonwhat was important fortheBar'sbudget. Mr.Freemanstated he would provide the Board with the BudgetCommittee'sminutes at the May meeting to help the Boardbetter understandhow theprioritieswereestablished forthe1992-93 budget.John DeVault stated his reservation in voting for a budgetwith a significant reduction in funding for legislativelobbying. Mr. DeVault stated in his experience onecannotevenbe in the legislative arena without effective lobbying.Fred Bosch also had some reservations andrequestedthat theBudget Committee provide the Board in May with the 1990-91budget.Chair AustinPeelecommented that the Board has until May tofinalizetheissues presented byvarious Board members.Afterconsideration anduponmotion,theBudgetCommittee'sproposed 1992-93 budgetwas approved.

B. Budget AmendmentsChair Austin Peele reported on the following budgetamendments which received Board approval:

Net Impact1.General Fund TotalExpense onGeneral Funda)General Counsel- 20,000 20,000Outside Counselb)Legislation- 50,300 50,300Legislative Counsel

Mr. Peele reported the$50,300amendment to the legislativecounsel budget would increase the balance to$150,000. Headvised that President Hill met with RichardMcFarlaintodiscuss the extended legislative session and was informedthat there could be approximately 68 legislative daysbetween now and June 30 which would increase the Bar'slobbyingexpenses.Mr.Peele advised that the Bar was budgeted at a$400,000surplus with the amendments bringing the balance in the


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Regular Minutes-Page13March19-20, 1992operating reserve to less than$100,000. He furtherreported that investment earnings exceeded initialprojections,CLErevenues rose slightly (since December 31,1991),and Barstaffwastrimmed.President Hillconcluded thattheBoardisgoingtohavetodecidewhether itwantstoplayin thelegislative arenawhen finalizing nextyear'sbudget.

Sj. Disciplinary Procedure Committee ReportChairJohn Thornton reported on Rule11-1.8(c),Termination ofCertification,andRule 11-1.9, CertificationofMembersofOut-of-State Bars and Law Students Following Graduation which wasdeferred by the Board at its January meeting. The new rules werecreatedout ofnecessityfor thePublicDefender'soffices,theStateAttorney'soffices, the AttorneyGeneral'soffice and theOffice of theCapital Collateral Representative,andwould allowthese offices to hire on a temporary basis,out-of-state lawyersand lawschool graduates thatarecertifiedtopractice under thisrule, up to twelve(12)months while preparing to take the Barexam.Mr.Bennett Brummer, public defenderfor theEleventh JudicialCircuit, briefly commentedto theBoard thatthepublic defenderoffices inFloridaarestruggling withinthecriminal justicesystem,andthathe isconcerned withaprovisionof thecommittee's draft which would terminate certification for failureofanyportionof TheFloridaBarexamination. Hestated that manyindividualsfail sectionsof the Barexam,and hewouldnotwanttoseepeople lose jobs because they failedasectionof theexam.Board member William Sizemore inquired aboutthenumberofapplications sentin tothesevariousoffices that were membersofTheFlorida Bar,andOfficeof theCapital CollateralRepresentative (OCCR)LarrySpaldingresponded that his office hashaddifficultyinrecruiting people. Headvised that OCCR usuallyreceives one application per month.BillJames, State Attorneyfor the13th Judicial Circuit, advisedtheBoard thatnewemployees withinhisoffice basicallystartoffatentry level positions and are generally law school seniors orrecentgraduates. Mr.James further commented thathisofficeislimited tohiring peoplein lawschool clinicprograms,andtheselawstudents assist the court in processingcases. Mr. Jamesstated that the rule would allow him to seek out-of-stateattorneyswhoareprimarily assistant U.S. attorneys with significant priorexperience.Board member TomErvinstated that he, along with Board member JonWhitney, received strong urging from local state attorneys andpublicdefenderstoapprovetheproposed rules becauseitwouldassist their officesindealing withtheenormous caseload.


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Regular Minutes - Page 14March19-20, 1992Several Board members expressed their concern about not employingmore out of work Florida Bar members to assist the variousoffices,anda point was raised about providing these same privileges toprivate lawfirms.Mr. Spalding stated that with respect to OCCR, anyone who isqualified andwillingto dothis work wouldgetpriority, however,thenumberofapplicantsislimited becauseof thespecialized areaoflaw. Mr. Spalding further stated thatifOCCRisrestricted inwho it canbringin, itwouldnot beabletofunction efficientlyand effectively.Mr. Brummer added that the stateattorney'soffices, publicdefenders' offices and the OCCR are struggling with enormouscaseloads tohavea system that people can look to with somerespect. He stated that the proposed rules were one of twoproposals that came out of The FloridaBar'sCriminal Law Section.Theotherproposal relatedto theprinciple thatgovernmentagencies or government lawyers should not bear unreasonable andexcessive caseloads.After consideration, a motion was made, seconded, and passed toapproveRule11-1.8and 11-1.9asproposedby the DisciplinaryProcedure Committee.9 _ ReportofSpecial Committeeon Presidential ElectionsProceduresChair RayFerrero,before reporting on Bar presidential electionpolicies, advised the Board that he is the State Delegate of TheFloridaBar to theAmericanBarAssociation (ABA). HereportedSamSmithwasrecently elected secretary-elect of theABA,andSteveZackwasnominatedandelectedto theABA'SBoardofGovernors.Mr. Ferrero stated eighteen percent of the ABA's Board of Governorswill be Floridaattorneys. He will be writing to the Board forinputon theABA'spresidential electionprocedures.Mr.Ferreroreportedtherule changes recentlypassedby theBoardincludednocampaigning priortoApril15withthequalifyingperiod starting on May 15 through June 15. Additionally, ballotswillbemailedinNovember,andpetitionsto qualify as acandidatemustbesignedby onepercentof the Barmembersingood standing.Mr. Ferrero reported that when this matter was first assigned tothecommittee, it wasbecause therewasclearlyafeeling amongtheBarleadership that somethinghad to bedoneto theBar'spresidential electoral process which would allow the membership asawholetoparticipatein theprocess. Theother major concernofthecommitteeand theBoardwas thecostofthese elections,andthe time devoted to running for the Bar presidency. The committeefelt itcould solvetheconcernsbyshorteningthecampaigningperiodwhich would also reducethecampaigncosts.


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Mr.Ferreroreported the committee, in proposing two versions ofamendments to Standing Board Policy(SBP) 1.25,Election ofPresident-elect,wasstronglyinsupportofalternativefl,whichdidnotoffertheopt-out provisionforcandidates withrespecttothepresidential election procedures. The committee's recommendedpolicy would providefor thecandidatethefollowing amenitiesatactualcost:1. One set oflabelspercandidate ($1,410 plus tax)2. One Bar membership list per candidate ($1,410 plus tax)3. A Question & Answer and platform statement in the Bar News(Free)4. Four campaignads up to 1/2page (cost reduction from $1,035to$425)5. Two BarNews Inserts($2,100)6. Ballot Inserts(Free)7. Insert in convention registration packets(Free)8. All member reception(Free)9. Display of campaign material at convention(Free)Mr. Ferrero stated that proposed alternative #1 of SBP1.25wouldallowsomeonetoparticipatein theelectionat asubstantialsavings. Amotionwasmadetosuportthecommittee'sposition(approveSBP1.25without the opt-outprovision).JohnDeVault askedwhy thecommitteedid notrecommendtheopt-outprovision,and Mr.Ferrero advised thatthecommittee,inconsidering both versions, was concerned with whether the Bar couldmandate that candidatesberequiredtoadheretothese typesofrestrictions. Inreferring this issueto Barstaff,thecommitteewas advised that the Bar doeshaveauthority to make suchrequirements.JoeSerotaasked whether the proposed policy would do anything interms of encouraging an individual to run. Mr. Ferrero respondeditwould havenoeffecton theperson's desiretorun; however,thecost savings wouldberelatively significantandwould encouragemore members to consider the Bar presidency, adding that a crediblecampaign could be had for less than$50,000.TomFreeman expressedhisreservation regardingthecommittee'sproposed policyinthatacandidate should havetherighttoopt-outof themandatory requirements,andfurther stating thatthepolicy may be unduly restrictive.Several Board members inquired as to whether a candidate couldwrite individual letters requesting support and to what extent thebarlabelsandmembership list couldbeusedby thecandidateoroutside organization to solicit support.Mr. Ferrero advised it was not the intent of the committee toprohibit a candidate from having other organizations do a mailingonone's behalf, adding thatthecandidateand his or her lawfirmwouldbeprohibited under this policy from payingfor ordevisingthe mailing. Mr. Ferrero stated the committee's decision to limit


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thenumberoflabelswas toallowfullinformationto bereceivedby the Barmembersin themost cost efficientwaywithoutduplicating efforts.WilliamBlewsstatedhisoppositionto theproposed policyinthatitunfairly restrictsacandidate's abilitytocommunicateand beknowntomembersof theBar,adding thatthelimitations restricttheabilityto get thecandidate's message across.PatCasey made amotion,which was seconded, to amend thecommittee's proposed policy to delete the words authorize or fromsubdivision (c)(2)ofSBP 1.25. Mr.Ferrerostatedtheentirepolicy wouldbeamendedtoconformto Mr.Casey's amendmentifapproved.Mr. Freeman, speaking against the amendment, stated the best way toaddresstheconcernsof theBoardis toprovideanopt-outprovision onatrial basis rather than amend the policy.Additionally, a suggestion was made to define participate andmailing withinthepolicyand toclearly statetheintentof thecommittee. Mr. Casey accepted the amendment to his motion to onlyincludeauthorizingthecommitteetodraftthedefinitionofparticipate to beconsistent withtheexpressed intentof thecommittee. After consideration,Mr.Casey's amendmentwasapproved.President Hill advised thatthecommittee would also definemailing in thepolicy consistent withthecommittee's intent.DonGiffordstated the policy should include two mailings to allowone mailing to the entire Bar membership and an additional targetedmailing. Accordingly, a motion was made and seconded topermittwomailings in SBP1.25.MichaelMcNerneystated the policy as written allows for twomailingseither by inserts or labels, and Mr.Casey,concurring,indicatedthepolicy providesfor thecandidatetocontactthemembership at eight (8) different times. John DeVault added thatthechiefdirectiveof thecommitteewas toreduce costs and,byexpanding the mailings, the purpose would be defeated.Afterconsideration,Mr. Gifford'smotiontoincludetwomailingsfailed.Onthemain motion, Fred Bosch requestedaroll call vote whichfailedfor alackof fivevotes.President HilladvisedtheBoard vote wouldbebasedon theassumption thattherule changes filedwiththeCourt wouldbeapproved,as thebasic changesto therules reflect differentfilingandballoting dates.After consideration, SBP 1.25 as amended was approved.


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Acopyof SBP1.25asamended willbeincludedin the Maymaterialsforapprovalof theadditional definitions.10. RulesofJudicial Administration Committee ReportJudgeManualMenendezappearedonbehalfofChairTonyMustotorequest Board approvaloffour(4)proposed amendmentstoRule2.060(b),Motion for Permission to Appear. Judge Menendezreportedthatthis rulewasconsideredby theRulesofJudicialAdministration Committee at the request of The FloridaBar'sUnlicensed Practice of LawDepartment,which has received a numberofinquiries about the rule. Judge Menendez stated thecommittee'sfirstproposed amendment would rename the rule, Motion forPermission to Appear, which Judge Menendez stated was forclarification of subject matter. Judge Menendez further reportedthe committee addressed what effect inactive status had with regardtothe rule and stated that in many states inactive members arestillconsidered members in good standing. Judge Menendez advisedthatthecurrent rule statesyouhaveto be amemberingoodstanding; thus, an attorney could still petition to appear inFlorida though theyareinactiveand notallowedtopracticeintheir home state. Accordingly, the committee proposed an amendmentwhich would requireanonmember attorneybe anactive memberoftheirrespectivebar(s)andpresentthis informationin averifiedmotion.The third proposed amendment would require a motion for permissiontoappear be submitted with or before theattorney'sinitialpersonal appearance, paper, motion or pleading. The current ruleallows submission before trial or oral agreement.The fourth proposed amendment would require the motionstatealljurisdictionsinwhichanattorneyis anactive memberingoodstandingof thebar,and thenumberofcasesinwhichtheattorneyhas filedamotionforpermissiontoappearinFloridain thepreceding three(3)years.Several concerns were raised by Board members which includedrequiring the nonmember attorney to provide the types ofcasesrather thanthenumberofcases filedinFlorida; ambiguityof thelast sentence in the rule; and not requiring the nonmemberattorneytoobtain local counsel.Amotion was made and seconded to amend the rule to include arequirementthatanonmemberattorneymust seekpermissionand begranted permission before they canfilea pleading or appear in acase pendinginFlorida.Scott Baena commented that such an amendment would burden the Courtwith unnecessary procedures.After consideration,themotiontoamend failed.Scott Baena made a motion, which was seconded, to amend the rule torequire a nonmember attorney be sponsored by local counsel on whom


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pleadingscan beserved,and todeletethelast sentenceof therule which reads as follows:Attorneys of other states shall not do a general practiceunless theyaremembersof TheFloridaBar ingoodstanding.

Aconcern was raised about the Board making amendments to the rule,andPresident Hilladvised thattheBoard's actions willbesubmittedto theCourtascommentsto theRulesofJudicialAdministration Committee's proposed amendments.Afterconsideration, Mr. Baena's motion passed.JudgeMenendez advised thattheruleas itcurrently existshas noprovisiontolimitthenumberofappearancesofnonmemberattorneys. EdwinMulocksuggestedtherule should limitanonmember attorney to one appearance every threeyears.Accordingly, a motion to amend was made and seconded to include alimitation of two appearances every three years by nonmemberattorneys.Several Board members stated their opposition to the motion in thatitwould burdenthelitigants, createterritorialism,and beperceived as protectionist legislation that has no publicinterest.After consideration,themotiontoincludealimitationof twoappearances every three years failed.Bya 36-0 vote, the Board approved Rule2.060(b)as amended toincludeaprovision requiring local counseland thedeletionof thelast sentence of the current rule.Rule2.060(b)will be filed with the Florida Supreme Court as partoftheRulesofJudicial Administration Committee's four year cyclerule amendments.

11. HealthLawSection Annual ReportChair Andrew Rock was introduced by Board liaison Michael A.Fogarty. Mr. Rock reported the Health Law Section has currently789 members with approximately 30-40 affiliate members. He statedthatCLE programs have beentheprimary focusof thesection thisyear. Since last June, the section has presented several CLEseminars which included a program on health care contracts at lastyear's Annual Meeting; a joint CLE program last September with theFlorida AssociationofHospitalAttorneysaddressing practical andlegalaspectsofhospital management;and aseminarat theBar'sMidyearMeeting focusingonfraudandabuseofmedicare. Inaddition,thesection continuestopublishitsnewsletter3-4timesa year.Another areaoffocusfor thesection this yearwas inlegislativeactivityinvolvinghealth care surrogate lawsand theliving will


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law. With the help of the Florida Medical Association and theFlorida Hospital Association/ the section was successful inencouraging the Florida Legislature to adopt comprehensivelegislationin theareaofadvance directives.Other activities undertakenby thesection include continueddiscussion with the Florida Medical Association and the countymedicalassociationsonjoint medicalandlegal rulesonsuchtopics as depositions and medical malpractice; joint projects withthe Florida Association of Hospital Attorneys and various nationalorganizations; and work with the Council of Sections on its variousactivities. Another area of interest by the section isimplementing board certificationin theareaofhealth law.Mr.Rock thanked the Board for its continued support of thesection'sactivities.

12. Report of Special Committee on Evaluation of DisciplinaryEnforcementChairTomErvinreportedon the committee'scurrentactivities,stating thatthecommitteehasreviewedand isunanimouslyinfavorofa concept of diversion for a majority of minor cases now beinghandled in the disciplinary process including the concept of anethics school . Mr.Ervin stated thatas ageneralmatter,allmatters whichare nowdefinedasminor misconduct wouldbeeligibleforthediversionary program,butwouldnotnecessarilyberecommendedfordiversion. Headded there would alsobeothercases whichmay not beminor misconduct that mightbe consideredfor diversion from the disciplinary system.Other ideas agreed upon by the committee included diversion shouldbe at the consent of the Bar and therespondent,and that therespondent could reject diversion if they insisted on a trial; theclient or claimant acceptance should not be required inorderfordiversion to occur; and the grievance committee, once it has heardthe initial presentation, should havetheauthoritytorecommenddiversionevenif it has notbeen recommendedpreviouslyby the Barcounsel and agreed upon by the respondent.Thecommitteeisalso considering quarterly ethics schoolsat twolocations with instructorsorpossibly videotaped programs,andother forms of rehabilitative diversionary programs such as localmentors.Mr.Ervin statedthecommitteehasrequested input from severalBarcommittees including the Bench/Bar Commission and will be draftingareportforconceptual approvalat theBoard'sMaymeeting. Mr.Ervin concludedhisreportbystatingthediversionary programwould attempttoidentifyattorneysat anearly stage withouthaving themgothroughthedisciplinary procedures.President Hill advised that President-elect Alan Dimond has agreedthat the proposed program will continue into the next Bar year with


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aconcrete proposal. Heremarkedit issomething that couldrevolutionize theBar'sdisciplinary process.

13. Legal TechniciansStudyCommittee ReportChair Gregory Presnell briefly reported on the activities of theLegal Technicians Study Committee. Mr. Presnell reported thecommittee had taken additional public testimony on the issue oflegaltechniciansandwill conveneafinalpublic hearingonApril21 atNovaUniversity. Hestatedthecommittee willthenbegindeliberations with respectto itsrecommendations. It is theintent of the committee to provide a preliminary report withrecommendations at the Board's May meeting. Mr. Presnell addedthatthecommitteehasfoundtheissueoflegal technicians morecomplex than anticipated.AlFrigola commentedas to why theterm legal technician hasbeenusedtoidentify individuals doing such business, adding thatitelevates these persons to alevelof recognition. Inresponse,Mr. Presnell stated the committee inherited the term from otherstates which used the terminology to distinguish legal techniciansfromparalegals.

14. Investment Committee ReportChair Gregory Presnell reported on the investment status for theyear ending December 31, 1991. Mr. Presnell advised that afteradopting a new investment policy, the committee established fourgoals:(1)to hire a financial consultant to help design aninvestment policy which includedtheemploymentofprofessionalmoney managers; (2) implement an investment policy which wouldprovidefor aconservative allocationof the Bar's assets; (3) toobtain professional money managers to handle long termassets;and(4) to obtain a return over the Bar's historical seven (7) percentyield.Mr. Presnell reported theBar's$8.4 million in long-termassetsweredividedbetween theBar'smoney managers,SunBankandBarnettBank. The planallowsthebankstoinvestup to 35percentof theBar's fundinstocks,dividing the rest among more conservativeinvestments.Mr. Presnell further reported the new investment program has beenineffectforapproximatelyseventeen(17) monthsand for theyearendingDecember 31, 1991, the Bar has earned an annual return onitslong-term portfolioof17.6 percent,35percenton itsstockinvestments and 14.8 percent on itsfixedrate investments.Mr.Presnell statedtheBar's initial investmentof$8.4 millionisnow worth $10.5 million, and that under the old investment policy,itwould have only been worth $9.2 million; thus, reflectinganincremental returnof$1.25 million.


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Mr.Presnell concluded by stating the Bar has had a remarkableeighteen(18)month periodin thecapital marketsbut not toexpectthese kindsofreturnsin thefuture. Headded that hopefullythroughconservative money management,the Barcould continuetobeatthemarketsandhaveavery conservativeandsafe investmentpolicy that produces favorablereturns.15. ExecutiveDirector'sReportJoh F.Harknessstated thatinfurtheranceof theSupremeCourtRacialand Ethnic Bias Study Commission's recommendation, TheFlorida Bar has drafted a written affirmative action policy thatincludes a statistical breakdown of current minority employment atthe Bar. Mr. Harkness advised that the Bar has always had anaffirmative action policy,but it has notbeen formalizedinwriting. He stated the Bar would be disseminating employmentinformation similartowhatisdoneby theGovernor'sOfficeandCabinet in attracting minority applicants. He further advised theBar has haddifficultyinattracting minority applicantsforprofessional positions and stated that in many casesresumesaresubmitted in place of theBar'semployment application whichasks,ona optional basis, the minority status of an applicant. Mr.Harkness added the Bar would made a conscious effort over the nextyearto fillhalfthevacancies with minorities.16. Access to the Legal System Committee ReportChair Robert Sondak reported on the following items:A. Simple WillandStep-parent Adoption Forms

Mr.Sondak reported that the proposed simple will form wouldapplyonly for married or single people with children. Thewillprovides thatall thesignee's assets wouldbelefttohisor herspouse,or if notmarried, then divided equallyamong thechildren. If achildhasdied, thatchild'ssharewould be split between anydescendents. The remainingportionsof theform cover nominationof aguardianandpersonalrepresentative.Mr.Sondak stated thereis alarge segmentof thepeopleintheStateofFloridawho do nothave wills becauseof thecost. Mr. Sondak added there are simple will forms on themarket that people can buy, however, there is no controloverthequalityofthose forms. Hefurther statedtheLegal Technicians Study Committee surveyed judges and foundthey overwhelmingly expressed the view that wills ought tobe written by lawyers exclusively.Stewart Marshall, on behalf of the RealProperty, ProbateandTrust Law Section, stated wills were too complex for asimple formtomeetall of thepotential problems. Hefurther stated the proposed simple will may cause problems


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Regular Minutes -Page22March19-20, 1992when thereis aspouseandchildren fromapreviousmarriage, adding that these typesofwills,in hisopinion,wouldnot be in thebest interestof thepublic.Mr.Marshall advisedtheBoard thataform will does existcalled "formofintestate succession",whichcostsmorethananormal will,butwouldbeless expensive than probatinganimproperly prepared simple will.GregPresnell,Chairof theLegal Technicians StudyCommittee, commented that the only thing the Board would bedoingif itapprovedtheform,is tofurther unleashtheunlicensed practice of law in thestateto thedetrimentofthe public. AustinPeele,inaccordance withMr.MarshallandMr. Presnell's position, stated his concern with theeconomicissueforlawyers.WilliamSizemore recommendedthe Barwaitto see if theneedforsimplewills is met by the newvoluntarypro bonoplanrecently orderedby theFlorida SupremeCourt. WilliamSpencer added that,in hisopinion, simple willsdo notexist,and theBoard should telltheCourtthat itdoesnotbelieveasimple will shouldbepromulgated that wouldbeadministered bynonlawyers.PatCasey, infavorof theproposed form, stated simplewillswere betterthan no wills, and though the form is nota complete document, it does certain things that are veryfundamental.Mr.Sondak also statedhisconcern withtheforminthatitmaygivelegitimacytolegal technicians, however,it is anoutgrowthof thesame concerns thatled to theCourt'smandatingof probonoreporting. Mr.Sondak further statedthat opposing such simplified legal forms wouldnotalleviate the unlicensed practice of law.Afterconsiderationandupon motion,theBoard,by a14-22vote, disapprovedthesimple will formasproposedby thecommittee.On theissueofstep-parent adoption forms, Robert Palmerreportedtheonlycontroversywiththeformisthatitdoesnotrequiretheconsentof anabsent parentwho hasbeenabsentfor acertainlengthoftime.DavidKorones,Chairof theFamilyLawSection, advisedtheBoard thattheFloridaLegislaturerecentlypassed a newadoption statute whichmayneedto bereviewed beforeconsideration of this form. Mr. Palmer stated the newstatute almost exclusively involves independent adoptions.Hearing noopposition, PresidentHilldeferred considerationofthestep-parent adoption form untilthe newadoptionstatute has been reviewed.


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MikeMcNerneyinquiredas towhethertheBoardhad aformattoaddresstheCourt withitsconcerns aboutthesimple willform, andPresident Hill statedaninformal conference wouldbethebest forumtotalkto theCourt abouttheBar'sconcerns with respect to simplified forms.Barry Richard reportedto theBoardon theliability issueforsimplified legal forms. In hisopinion, therewas nomaterial exposure to liability. Mr. Richard statedpromulgation of the forms would not expose thelawyerwhoworkedon thepreparationof theformstoliability sincethere wouldbe noprivity betweentheindividualand thelawyer. He further stated he does not foresee a problemunless there is a radical change in Florida law.

B. Supreme Court February20Orderon ProBono Plan Chair Robert Sondak reported that on February 20,1992,theFlorida Supreme Court issued its opinion on the pro bonopetition. He reviewed for Board members the background thatattorney SandyD'Alemberte'spetition was filedwith theCourt seeking a form of mandatory pro bono. The FloridaBar/Florida Bar Foundation Joint Commission on the DeliveryofLegal Servicesto theIndigentinFloridawasthenestablished which reviewed the petition and recommendedtwenty (20)probono hoursor a$350feewithmandatoryreporting. The Bar, in reviewing therecommendations,opposed this requirement and the petition'snarrowdefinitionofwhat constitutedprobono. In theCourt'sruling, it basically adopted the joint commission's positionthatpro bono services be provided through local circuitcommittees. Each circuit court chief judge wouldberesponsible for implementing the pro bono plan within thecircuit, thus bringingthelawyersofthat circuit intotheprogram.Mr.Sondak reportedtheCourtislookingto theJointCommission to begin the implementation rules which must besubmitted to the Court by September 1,1992. He stated theBoardand the Barwill havetoassistindrafting rulechanges, collecting the required data and reportingattorneycompliance to theCourt. Mr. Sondak further stated theBoard may be asked to create a standing committee to monitorcompliance circuit by circuit. He further advised thattheremay be abudgetary impact whichhas notbeen reflectedinthe1992-93 budget.Mr. Sondak also stated the pro bono rules will have toaddress the question of sitting judges and governmentlawyerswhohave ethicalandstatutoryrestrictions.Additionally, the Court will reconsider the program twoyears fromitsinitial implementation,anddependingon thelevelof compliance, Mr. Sondak stated there may be areneweddrive for mandatory pro bono during the reviewprocess.


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RegularMinutes-Page24March19-20, 1992President Hill advised thatthejoint commission,not theBoard,will implementtheprogram,and inordernot tolosecontrolorconsiderable input,ameetingwasconvened withleaders of thecommissioninTallahasseetodiscusstheimplementation process. Mr.Hillstated the Bar is tryingtoencouragethejoint commission toinstitutethe probonoplanin alawyer-friendlymanner. Mr. Hill further stated aconference willbeconvenedat the BarconventiononJune27encompassing circuit chief judges, voluntary barrepresentatives,andmembersof thejoint commission, todiscuss preliminary plansandgather input fromtherespective attendees. He advised that rules are beingdraftedby Barstaffand TheFloridaBarFoundation forpossible reviewby theBoardinMay. Mr.Hill also reportedhehas metwith Justice Overton, authorof theCourt'sopinion,andindicated thathewantsthe Bar to becloselyinvolved in the implementation plan.Mr.Hilladvised that President-elect AlanDimondhasrequestedto beremoved fromthejoint commission andwillbereplacedbyBoard member John Thornton. Headded thattherulesfor the probono plan will probablybeapprovedafter September 1, and thereporting willin all probabilitybedoneon the Barduesstatement. President Hill furtheraddedthat many circuitshaveprobono service opportunitieswhich mayadversely impactthereporting requirement.AlFrigolastated his concern that there is a possibleliabilityfactorforlawyers practicingin anarea wherethey are not competent. He further stated the pro bono planmust alsoconsidergovernment attorneyswho areprohibitedfromengaginginprivate practice.George Moss inquired as to why theCourtchosethe jointcommissiontoimplementthe probono plan,andPresidentHillresponded thattheCourt feltitwouldbe the quickestway to institute the program, adding that the Court felt theBar hadenough representationon thejoint commissiontoensurethe Bar's concerns were addressed.JohnFisher stated his opposition to theCourt'sopinion andindicated hisconcern thattheCourtdid notseek more inputfromthe Board. He stated that requiring lawyers to reportallprobono work wouldbeoffensiveandquestioned theCourt'srighttoinquire about suchinformation. Mr.Fisherfurther expressed his concern about the relationship betweentheCourtand theBar, statingthehistoryofthisrelationship haschanged inrecentyears.Walter Campbell asked whetheritwouldbeappropriatetodraft a resolution to the Court expressing the Board'sconcerns, andPresidentHillresponded thatBar leadershipmeets withthejusticeson aregular basisandwouldbeabletoexpress the Board's concerns informally.


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17. Program Evaluation Committee ReportA. Clients' Security Fund Evaluation

ChairPatCaseypresentedPEG'Sgoalsandobjectivesandrecommendations of theClients'Security Fund(CSF)Programasfollows:GoalsandObjectives:1. Continuation ofClients'Security Fund Program.2. Solve the CSF funding crisis but respond to call toprioritize this program in The Florida Bar budget.3. Paysmall claimsinfull.4. Immediately move to $15 per MIG allocation withoutdrasticreallocationfrom other programs.5. Reduce claims and exposure to the CSF.PECRecommendations I. Annually limit dollars spent on CSF to the greater of:

A. Fixed budget amount of $15 per MIG(i.e.,$705,000);orB. Amountnecessaryto pay100%of allclaimsupto$10,000.

II. If the fixedbudget amount exceedstheamountnecessaryto payclaimsup to$10,000,proratetheremaining fundbalance among approved claims on a prorata basis up to separate limits of$50,000.III. Iftotal paymentsof100%ofsmall claimsup to$10,000exceedthefixed budget amount, thenabudgetamendment will be necessary (use ofreserve).IV. Immediately moveto a $15 per MIGfundingfor1992-93:

A. In 1992-1993, maintain a budget minimum of$7.20 from dues and balance $7.80 from CSFreserves. This would reducethe$1.2 millionCSFreserve budgetby$350,000.B. In 1993-1994 and lateryears,move to a $15 perMIGallocation within dues budgetbyincreasingCSF allocation $1.95 per year and fund thebalance fromreserves.


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RegularMinutes-Page26March 19-20, 1992C. In the event of a duesincrease,fund theentire$15fromdues budgetandmaintainreserves.

V. ReducethenumberofclaimantsandCSF exposure.A. More study to define victims; reviewinvestmentrelatedtransactions.B. Do notordinarily consider claims untilallcivilremedies have beenpursued,i.e.,bonds,liability policies, partners,estate,etc.C. Require claimantstofilecriminal complaints.D. In cooperation with probate lawyers of the RealProperty,Probate and Trust Law Section,develop abond requirementfor all attorneyswho serve as fiduciaries ofestatesand

guardianships.Mr. Casey reported the Bar's CSF program is not a cure forlawyers'misappropriation,but anattemptby the Bar topartially ameliorate lawyer misappropriation. He furtherstated that the Bar must have some budget limitation on theamountallocatedtoCSF, adding thatthe Barthisyearhasbeen abletocontrolthebudget limitationbyplacingatemporary cap of$650,000on claim payments. Mr. Caseyfurther advised thatasignificant majorityof theclaims,approximately72percent, couldbepaidinfullusingthe$10,000cap.Mr.Casey also reported thatahighpercentage ofclaimsinvolvelawyers serving as fiduciaries ofestatesandguardianships. The committee, concerned with the effects ofbonding, felt thatifbonding couldbeobtainedon acostefficient basis, it would dramatically reduce the amount ofCSFclaims. Accordingly,amotionwasmadetoapproveinconceptall ofPEC's recommendations. President Hilladvisedthat these recommendations were action items thatwouldrequire rule changes,andthat further considerationofthese recommendations wouldbemadeat theBoard'sMaymeeting.Several points expressedby theBoard includedtheobligationsof the CSFplacedongovernment lawyers andjudges who do not maintain trust accounts; a possible duesincrease to maintain the CSF program; maintaining the CSFcapat$25,000rather than$50,000;implementinga trackingsystemofdefalcating attorneys andtheir criminalactivities;andrequiring repaymentto the CSF aspartoftheprobationary processof anattorneywho hasbeencriminally prosecuted.


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AlFrigola statedPEC'sreport indicated that a significantamount ofclaims result fromdefalcationfromprobateandguardianship attorneys. He stated the Board may want toconsiderarequirement thatanattorney actingas apersonalrepresentative or guardian be bonded by the Court.President Hill advised thattheRealProperty, ProbateandTrust Law Section has been approached with thisconcept,andthesection'sProbate Committeehastentatively agreedtodraft a rule with respect to this issue for consideration bytheCourt.Budget Chair AustinPeelecommented that the information PECgathered indicated thatCSFwas a priority program, and thattheBoard has to recognize what its priorities are. Hefurther statedthe Barwill eitherhavetohaveaduesincreaseor cutotherBarprogramsinordertosustaintheCSF.After consideration,themotiontoapproveinconceptallfour ofPEC'srecommendations were approved.

B. ProposedYLDJudicial ClerkshipProgram Chair Pat Casey reported that PEC has reviewed the YoungLawyers Division's application to request the Bar to sponsorthejudicial clerkship program, a program which places lawclerks with chief judgesinFlorida. Mr.Casey advised thattheprogram was previously funded by the Florida Legislatureandthatitshould remainassuch; thus,YLD'srequestwasnotapproved. Thecommittee feltit was aworthwhileprogram but not a program of The Florida Bar.

C. ProposedMinority Stipend Program PECalso reviewedtheCommitteeonEqual OpportunitiesintheProfession'sproposal for a minority stipend program.The program, modeled after NorthCarolina'sprogram, wouldprovide financialassistancetominoritylawgraduateswhilepreparingtotakethe BarExam. PEC hasdeferredtheproposal to the Board's Implementation Committee forconsideration.

18. Lawyer Referral Service Committee ReportChair Cindy White appeared before the Board to request amendmentsto4-7.2,Advertising,and4-7.5, EvaluationsofAdvertisements,includelawyer referral service advertising. Pursuant to theBoard'srequestat itsJanuary meeting,theLawyerReferralService(LRS)Committee met with the Standing Committee on Advertisingwhichapproved the amendments to the following advertising rules:


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1. 4-7.2(d),Disclosure StatementTheproposed amendment providesarequirement that lawyerreferral services include a disclosure statement as setforthby the Standing Committee on Advertising.

2. 4-7.2(1),LocationofPractice The proposed amendment would require that a lawyer referralservice disclose the geographic area in which the lawyerpractices when a referral is made.

3. 4-7.2(n)(10),Permissible ContentofAdvertisements The proposed addition of subparagraph (10)would create theopportunity for any lawyer referral service, whethernon-profit or for-profit, to produce an exempt advertisementunderRule4-7.2(n). As in thecaseof anadvertisement byalawyeror lawfirmthat goes beyondtheparametersof anexempt advertisement, an advertisement by a lawyer referralservice that contains information beyond that specifiedinsubparagraph(10)would be considered non-exempt and wouldneedtocontainthedisclosure statementin4-7.2(d)and befiled withtheStanding CommitteeonAdvertising forreview.

4. The proposed amendments to 4-7.5 would track the proposedchanges made to2-7.2.StaffCounsel John Berry advised the amendments were also approvedbythe Disciplinary Procedure Committee.PatCaseyasked whether theword "and"insubparagraph(10),line5ofRule4-7.2(n)shouldbeincluded,andMs.White advised thatitwas a typographical error and not the language approved by the tworespective committees. President Hill accepted Mr. Casey's inquiryasanamendment.Afterconsiderationandupon motion,theamendmentsto4-7.2and4-7.5 were approved.AcopyofRule4-7.2and4-7.5asamendedareattached heretoandmade apartofthese minutes.The other item reported by Ms. White requested Board considerationoftheMiami BeachBarAssociation'srequesttocreatea probonolawyer referral service. Ms. White stated the Association appliedforlawyer referral service statusinSeptember 1991,and itsapplication was reviewed by the LRS Committee at its Januarymeeting. Ms.White further stated thatthe Association wasaskedbythe LRS Committee to apply because of pending rule changes attheFlorida Supreme Court. The rule changes would expand thedefinitionof alawyer referral serviceto be anygroup advertisingwhere peoplearereferred to a setpanelofattorneys. Shestatedthe LRSCommitteefiledacomment withtheCourt asking that


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languagebeaddedto theruletomake clear thatprobono referralservices are not intended to be encompassed as lawyer referralservices because they operate differentlyintermsof funding,attorneys, standards, etc.President Hill deferred theMiamiBeach Bar Association's requesttothe appropriate committee for consideration and toreportbacktotheBoard.

19. Family Law Section ReportChair DavidKoronesreported to the Board the Family LawSection'sintentiontofileapetition askingtheFlorida SupremeCourttoestablish a family law rules committee within The Florida Bar thatwould draft separate rulesfor thepracticeoffamily law.Mr. Korones stated that in every instance in which there has been aseparate familylawdivision createdin theStateofFlorida, thatcourthas had aseparateset ofrulesandprocedures. InlightoftheFlorida Supreme Court mandatingthecreationof thefamilylawdivisionsineach circuit,thesection feelsthetimeisappropriate to create a separate set of family law rules.President Hill inquired as to whether the Family LawSection'sposition should be reviewed by the Civil Procedure Rules Committeeoranyother existingBarcommittee. Mr.Korones responded therewould be no purpose served by thataction,and the section shouldbeable to go directly to the Court with its request. Mr. Koronesfurther stated the section is not proposing rules at this time, butisaskingtheCourttoestablishafamilylawrules committee.Michael J.McNerneystated thatif afamilylawrules committeeiscreated, it may need to coordinate with the Civil Procedure RulesCommittee when drafting the new rules.DaleR.Sanders asked what rules would be unique within thepracticeoffamilylawthatare notaddressedby theRulesofCivilProcedure. Mr.Korones responded thereareseveral areas wheretheCourt has had to adopt separate family law rules within the Rulesof CivilProcedure. Hestated separate rules wouldbeneededintheareaofmediation, physicalandmental examinations,andpossibly injunctions. He further stated that in his opinion, thepractice of family law is not like the practice of a tort case or acontract litigationcase,and there are many individuals in favorofseparate rulesfor thepracticeoffamily law.Amotion was made, seconded and passed to allow the Family LawSection to petition the Florida Supreme Court to require TheFlorida Bar to establish a family law rules committee.Some concern was raised as whether the Court would ask for Barinputon the section's petition, and ThomasErvinrecommended, withPresident Hill concurring, that input be sought from the CivilProcedure Rules Committee.


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20. Public Relations Committee ReportChair Sandy Karlan reported the committee has been working on threepublic service announcement spots for the 1992-93 Florida Bar PSAcampaign.ElaineSilversteinand Jennifer Beber of Beber,SilversteinandPartnerspresented for Board consideration the following three PSAadvertisements:A. Not AskingTooMuch

This advertisement encourages the public to serve on ajury.The commercial encourages a greater willingness toparticipate through a reminder that a trial by jury is anAmerican right; a reminder that only as jurors cancitizenscontrolthelegal system ensuring justice withincurrentsocial and moral standards; and elevation of jury duty topatriotic service. Theadvertisement uses stockfootageofvarious wars in which Americans have died to preserveindividualrights.

B. Living Will This advertisement encourages individuals to make livingwills. The ad shows that living wills help to avoidwrenching decisions for families and help ensure that anindividualis treated according to his or herwishes. Theadalso shows that living wills are relatively simple andinexpensive,thus helping to demonstrate that the legalsystem is not necessarily costly orcomplex,but is a toolfor all individuals. The topic helps to demonstrate thatlawyerscan begoodcitizensandgoodlawyers. Theadvertisement depicts the story of a father told by the sonas helooks backatslidesof hischildhood,and itcelebrates thefather'slifeand his ability to chooserather than focusing on death.

C. FamilyHomelessness This advertisement focuses on familyhomelessness. The adtouches on the disruption of education and a potentiallydangerous environmentforchildren. The adalsoaddressesthe realization that the situation may doom homelesschildren to failure, as victims orvictimizers,thusinvolvingthese children in the legal system. Theadvertisement featuresthefirst momentsof ababy'slifewith a voice-over explaining the problem and offering acall-to-action.

Ms. Beber advised that the cost of the advertisements would beapproximately$50,000each.Several Board members expressed their concern about the three PSAswhich included not addressing the Korean and Vietnam veterans in


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thejury spotad;whetherthehomelessad had anyspecial relevanceto TheFlorida Bar,and if the admeetsthecriteria as setforthbySchwarz; and the unclear connection between war andjuryservice.Amotionwasmadeandsecondedtoeliminatethe Homelessnessadvertisement.TomErvin,speaking against the motion, stated that when the Boardwas considering public serviceannouncements,one of its maincriteriawas toaddresstheimageof the Bar byhaving socialorientedspots,adding that the homeless ad falls within thisparameter.After consideration, the motion to eliminate the homelessnessspot passed.Amotion was then made and seconded to approve the jury serviceand "livingwill spots,firstinconcept, theninspecifictreatment as presented by the committee.Fred Bosch stated his support of the jury duty spot, butrecommended that war images not be used to convey the need to serveasa juror. He stated the spot should emphasize thepeople'sroleinthelaw.WilliamSizemoreexpressed his opposition to the PSAs in that thecost of$150,000could be used more effectively, and MikeMcNerneystated that the PSAs as presented were not as well focused as thepreviously producedspots.Ms. Silverstein stated that the jury service spot was designed toconvey thiscountry'slong traditionoffightinganddefendingforthings people believe in. She further stated the spot shouldconveytheidea thatif we areaskingforyoung peopleto go to warandpossiblynotcome back, thenit is not too much to askthatonegotojury service.BobSondak stated the living will spot will more than likelygeneratealarge amountofphone calls whichthe Barwill havetoaddress, and Sandy Karlan responded that the Bar could possiblymail aninformational pamphletonlivingwills.After consideration, the Board approved the living will PSA spotinconceptand thespecific treatmentasproposedby thecommittee.The Board then approved the jury service PSA spot, first inconcept, then by a 14-12 vote, the Board approved thetreatmentasproposed by the committee.

21. YoungLawyersDivision ReportPresident Robert Palmer reported that ten(10)clerks have beenselected for the Judicial Clerkship Program. Mr. Palmer statedalthough theProgram Evaluation Committeedid notrecommend thatit


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Regular Minutes-Page32March19-20,1992

be aBar-sponsored program, YLDhas received another source offunding. Mr.Palmer also reported thattheFlorida Lawyers MutualInsurance Corporation has donated$3,000for co-sponsorship ofYLD'smoot court program.Mr.Palmer furtherreportedthe YLDwillbepresentingtheBridge-the-Gapprogram liveat seven locations with several Boardmembers serving as speakers. YLD also completed its Christmas inJanuary project, which provided 1,500 needy children with toysandclothes this year, and it plans to present a pro bono award at theBar'sAnnual Conventiontohonor those individuals involvedinlegalservice programs. The idea was suggested by Steve Goldstein,the1992 recipientof theTobias SimonProBono Award.22. President'sReportPresidentHill reportedonseveral items including:a) AppointmentofImplementation CommitteeforCommitteeonEqualOpportunitiesin theProfession Recommendations

The following individuals were appointed to theimplementation committee:1. DaleR.Sanders, Chair 5. MarkS.Gallegos2. JohnR.Marks III, Vice Chair 6. HenryLatimer3. EdwinC.Cluster 7. DianneS.Smith4. WilliamE.Sizemore 8. RobertQ.WilliamsPresidentHilladvised that thecommittee'sfirst assignmentwouldbe theminority stipend program. Theprogram,proposed by the Committee on Equal Opportunities in theProfession, would provide minoritylawstudents withastipend eight weeks prior to taking the Bar exam, whichwould alleviatetheneedfor thestudentto beemployedwhile studying for the Bar exam.

b) ABAMidyearMeetingReport President Hill advised that duringtheAmericanBarAssociation's(ABA) Midyear Meeting, the House of Delegatesconsidered the McKay Commission report and voted toeliminate grievance committeesin thedisciplinary system.Asa compromise, a provision was added which would notrequire state bars with successful grievance committeestoconsider changestotheir disciplinary process.

c) Authorized House Counsel Rule PresidentHill recommendedtheappointmentof anAuthorizedHouse CounselRuleStudy Committeetoredrafttheproposalpreviouslyrejectedby theSupremeCourt. Theappointeesincluded ScottL.Baenaaschair, WalterG.Campbell, Jr.,


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MartinGoldsmith,J.LloydNault andWilliamS.Spencerasmembers.d) MaySpecial Appointments

President Hilladvised the Board will be making a number ofappointments at its Maymeeting,including judicialnominatingcommission(JNC)appointments. Hefurtheradvisedthat Florida Statute requires The Florida Barappointees include at least one minority orwoman,and thatwhen seeking potential nominees, each Board member must makecertain thatthepersoniscommittedand is nottaking partinthe JNCwithaprivate agenda.23. Special AppointmentsAfterconsiderationof allapplicants,theBoardofGovernorselectedTerrenceJ. Russell of FortLauderdaleand RobertC.PalmerIII ofPensacolato the twolawyervacancieson theBoardofDirectors of The Florida Bar Foundation for three-year terms,effectiveJuly1,1992.

24. New BusinessA. JohnDeVaultpresented for consideration proposed StandingBoard Policy 5.26 which would require new sections andcommitteesto bereviewedby theProgram EvaluationCommittee and the Rules and Bylaws Committee at the end of athree (3) year time period to determine if the goals of thatsectionorcommitteearebeingmet andwhetherit is

financiallyself-sufficient. Mr.DeVaultfurtherreportedthat proposed SBP 5.26 would be forwarded to PEC and theRules and Bylaws Committee for its review and then broughtbackto theBoard'sMaymeetingforfinalapproval.After consideration,amotionwasmade, secondedandpassedtoapprove SBP 5.26 in concept.

B. AsreportedundertheLegislation CommitteeReport,theBoard deferred Board member MichaelFogarty'smotion torescindthePublic InterestLaw Section's(PILS)bylaws.Mr.Fogartystated thatthesection,in itspetitionto theFlorida SupremeCourt,said if it could not arguecontroversial positions, therewaslittleuse for thegroup.Mr. Fogarty further stated that if the limitation of deepphilosophicaloremotional issuesisremoved from StandingBoard Policy9.14,there would be, in his opinion, littlesupport by the Board in continuing the section. Mr. Fogartyfurther stated thattheCourt shouldbetoldin theBar'sresponse that in the event this limitation is removed, thenPILSwould no longer exist by vote of this Board.Accordingly, Mr.Fogarty madeamotion pursuanttoRule


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Afterconsideration,themotiontohaveBarcounsel instructtheCourt thattheBoardofGovernors would havetoconsidertheabolitionofPILS failed.

25. DeferredAgendaItemsThe following items were deferred until the May Board meeting:A. Chapter13,Authorized LegalAidPractitioners RuleB. Rule3-4.8,Respondent's obligationtorespondC. Rule3-7.6,Procedures beforearefereeD. President-elect'sReportE. Reportof theBoard Review CommitteeonProfessional Ethics26. TimeandPlaceofNextMeetingThetimeandplaceof thenext regularly scheduled meetingof theBoardofGovernorsis

May13-16, 1992Pier HouseKeyWest, FloridaThere being no further business before the Board, the meeting wasadjourned at 4:15 p.m. on Friday, March 20, 1992.

espectfullvsubmitted,

arolL. BracySecretary to the Board ofGovernors


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030409.14 Legislative ActionofSections.0304103042 (a) A section may engage in lobbying or take a position03043 on a legislative or constitutional measure only when all of the03044following criteriaaremet:0304503046 (1) The issue involved is within the section's03047 subject matter jurisdiction as described in thesection'sbylaws;0304803049 (2) The issue is beyond the scope of permissible03050 legislative or ideological activity of The FloridaBar,or the03051 issue is within the permissible scope of legislative or03052 ideological activity of The Florida Bar but the proposed section03053positionis notinconsistent withanofficial positionof the bar03054onthat issue;0305503056 (3) Theissueis not onethatcarriesthe potential03057 of deep philosophical or emotional division among a substantial03058 segmentof themembershipof thebar.


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03059 (b) Theexecutive director shallgiveperiodic noticeto03060thesectionsofproposedandadopted positionsof TheFloridaBar03061onlegislativeor otherideologicalissues.0306203063 (c) Sections shalladviseThe Florida Bar of proposed03064 legislative or ideological positions by providingwritten03065 notification to the executive director. When a decision is03066 needed within 60days,the notice shall include an explanation of03067 the need for an expedited decision, and shall request a specific03068deadlinefor adecisionby the bar as to thecriteriain03069 subdivision(a).0307003071 (d) When an expedited decision is not requested, review03072 of proposed section legislative or ideological positions shall be03073by thelegislation committeeand theboardofgovernors. Unless03074 said reviewiscompletedand awritten noticeofdecision03075received by the section within 60 days of the executive03076director'sreceipt of thesection'snotice pursuant to03077 subdivision(c),the section may lobby on the position unless03078 advisedotherwiseby acourtofcompetent jurisdiction. Whenan03079 expedited decision is requested, review may be by the executive03080 committee. Whenthelegislatureis insessionor anemergency03081 exists,and theexecutive committeeisunabletoact, reviewmay03082be by thepresidentin consultation with thepresident-electand03083thechairof thelegislation committee(ifpossible).0308403085 (e) Upon review of a proposed section legislative or03086ideological position,the bar mayprohibitthesection from


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03087 advancing such position only when it finds that the position03088failstomeetthecriteriaofsubdivision (a).0308903090 (f) Whenever the review of a proposed section03091 legislative or ideological position pursuant to subdivision(d)03092iscompletedinless than60days,the barshall immediately give03093 written notice to the section of the decision.0309403095 (g) Whenadecision thataproposed section legislative03096or orideologicalpositiondoesnotmeetthecriteriaof03097 subdivision (a) is made by other than the board of governors03098 pursuant to subdivision (d), the section shall have the right to03099 have the decision reviewed by the board of governors at the03100 meeting immediately following the date of the notice to the03101 section required in subdivision (f).0310203103 (h) Sections engaging in legislative activities must03104 adopt a procedure for determining legislative positions, submit03105 the procedure to the board of governors and receive theboard's03106approval. Section legislative procedures must include but are03107 notlimitedto the followingrequirements:0310803109 (1) The sectionshallestablisha legislation03110 committee composedof notless than3 normore than9members,03111with such members appointed for staggeredterms.0311203113 (2) The executive council of the section, by a 2/303114 vote of the members present, mustfindthe proposed legislative


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03115positionto bewithinthescopeofsubdivision(a) andapprove03116 the position by a majority vote.0311703118 (i) Committeesof TheFloridaBar mayadvance03119 legislative positions if authorized as provided in standing board03120 policies9.10,9.11, 9.12 and9.13.


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017935.20 AmicusCuriaePositionsandResponsesbySectionsor01794 Committees.01795 17 96 a) AmicusCuriaePositions0179701798 (1) Asectionof TheFloridaBar may adopt a01799position andsubmitanamicuscuriae brief inpending litigation01800 only whentheissueisbeyondthescopeofpermissible01801 legislativeorideological activityof TheFloridaBar,or the01802 issueiswithinthepermissible legislativeorideological01803 activity of the bar and theproposedbrief does not take a01804 position thatisinconsistent withanofficial positionof the01805bar and therequirementsof5.20(a)(3)aremet.0180601807 (2) A committee of The Florida Bar may adopt a01808 positionandsubmitanamicus curiae briefinpending litigation01809 only whentheissueiswithinthescopeofpermissible

01810 legislativeofideological activityof TheFloridaBar and the01811proposed brief doesnottakeaposition thatisinconsistent with01812anofficial positionof the Bar and therequirementsof018135.20(a)(3)aremet.0181401815 (3) Neitherasectionnor acommitteemayadopta01816positionorsubmitanamicus curiae briefinpending litigation01817 unlesstheissue involvediswithintheareaofsubject matter01818 interestof thesectionorcommitteeasdescribedin itsbylaws01819orofficial charge,and theissueis not onethat carries the


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01820 potentialofdeep philosophicaloremotionaldivisionamonga01821 substantial segmentof themembershipof thebar.0182201823 (4) Each section or committee shall provide notice01824 to the executive committee of the nature of the litigation the01825positions(s)sought to be taken by the section or committee as01826amicuscuriae,theanticipated effectof thelitigationand the01827 finaldecision,the need for the section or committee to take the01828 proposed position, the absence or existence of conflict with any01829 previous position adopted by either the board of governors or any01830 other section or committee of The Florida Bar and shall indicate01831ifsuchothersectionorcommitteehasbeencontacted aboutits01832 position. Exceptinemergency situations, this notice, along01833 with a draft of the amicus curiae brief, shall be provided at01834 least 10 days prior to the filingof the brief. In emergency01835 situations both the 10-day requirement and the prior submission01836 of a completed amicus curiae brief requirement may be waived by01837 the president of The Florida Bar.0183801839 (5) Asectionorcommittee shallnotfileits01840 motion for leave to appear or proposed amicus curiae brief01841 without express consent of the executive committee or the board01842ofgovernors.0184301844 (6) Anyamicus curiae position takenby asection01845orcommittee shallbeclearly identifiedas theactionof the01846 section or committee and not that of The Florida Bar, unless the01847 board of governors directs otherwise.


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01848 b) Responses.0184901850 (1) A section or committee of The Florida Bar may01851 adopt a position and respond to a petition to amend any portion01852 of the Rules Regulating The FloridaBar,after notice as provided01853insection 2 below.0185401855 (2) Eachsection or committee shall provide notice01856to theexecutive committeeof thenatureof thepositions(s)to01857 be taken. Except in emergency situations, the notice, along with01858acopyof theresponse shallbeprovidedto theexecutive01859 committeeatleast10days priorto thefilingof theresponse.01860 In emergency situations both the 10-day prior notice and01861 submission of a copy of the response requirements may be waived01862 by the president of The Florida Bar.0186301864 (3) Anyresponsemadeby asectionorcommittee01865shallbeclearly identifiedas theactionof thesectionor01866 committee and not that of The Florida Bar, unless the board of01867 governors directs otherwise.


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4-7.2 ADVERTISINGa) PermissibleFormsof Advertising. Subjectto all therequirements setforthinthissubchapter4-7, includingthefilingrequirements of rule4-7.5,a lawyer may advertise services through

publicmedia, suchas atelephone directory, legaldirectory,newspaper orother periodical, billboardsandother signs,radio,television, and recorded messages the public may access by dialinga telephone number,orthrough written communicationnotinvolvingsolicitation as defined in rule4-7.4. Theserules shall not applytoany advertisement broadcast or disseminated in anotherjurisdiction in which the advertising lawyer is admitted if suchadvertisement complies withtherules governing lawyer advertisinginthat jurisdiction and is not intended for broadcast ordissemination withintheStateofFlorida.b) SingleVoiceRequirement;Employeeof Lawyeror LawFirm.Advertisements on the electronic media such as television and radio

may contain the same factual information and illustrations aspermitted in advertisements in the print media, but the informationshallbearticulated by asingle voice, withno background soundother than instrumental music. The voice may be that of afull-timeemployee of the firm whose services are advertised; itshall not be that of a celebrity whose voice is recognizable to thepublic. The lawyer or full-time employee of the firm whoseservices arebeing advertisedmayappearonscreenor onradio.c) Name ofLawyerorLawyer Referral Service. Alladvertisements andwritten communications pursuant tothese rulesshall includethenameof atleastone lawyeror the lawyerreferral service responsible fortheircontent.d) Disclosure Statement. Exceptasprovided inthisparagraph subdivision,all advertisements,other thanlawyerreferral serviceadvertisements,shall containthe followingdisclosure: "The hiring of a lawyer is an important decision thatshouldnot bebased solely uponadvertisements. Beforeyoudecide,askus tosendyou free written information aboutourqualificationsand experience." Lawyerreferral serviceadvertisements shall contain the following disclosure; "Thehiring of alawyer is an important decision. Before you decide tohirethelawyertowhomyou arereferred,ask thelawyerforwritten information about thatlawyer'squalificationsandexperience." Thisesedisclosures?need not appear inelectronic

advertisements or advertisements in the public print media thatcontain no illustrations and no information other than that listedin paragraph subdivision (n)(I J - f S J J ofthis rule.e) DramatizationsProhibited. There shall be nodramatization in any advertisement in any medium.f) Useof Illustrations. Illustrations usedinadvertisements shall present informationwhichthat can befactually substantiated and is not merely self-laudatory.


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g) FieldsofPractice. Every advertisementandwrittencommunication that indicatesone ormoreareasof law inwhichthelawyer or law firmpractices shall conform to the requirementsofrule 4-7.6.h) Disclosure ofLiabilityFor ExpensesOtherThanFees.Every advertisement and written communication that containsinformation about thelawyer'sfee, including those which thatindicate no feewillbechargedin theabsenceof arecovery,shalldisclose whethertheclient willbeliablefor anyexpensesinaddition to the fee. Additionally, advertisements and writtencommunications indicating that the charging of a fee is contingentonoutcomeorthatthe feewillbe apercentageof therecoveryshalldisclosefitthattheclient willbeliableforexpensesregardless of outcome, if the lawyer so intends to hold the clientliable;andf2}whetherthepercentagefeewillbecomputed beforeexpenses are deducted from the recovery, if the lawyer intends tocompute the percentage feebefore deducting theexpenses.i) PeriodForWhichAdvertised FeeMustbeHonored. Alawyer who advertises a specific fee or range of fees for aparticular service shall honor the advertised fee or range of feesforat least 90 days

BOG Meeting 1992 March

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Transcript of BOG Meeting 1992 March