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Nova Law Review 31, 1 Nova Law Review Volume 31, Issue 1 2006 Article 1 Nova Law Review 31, 1 ∗ ∗ Copyright c 2006 by the authors. Nova Law Review is produced by The Berkeley Electronic Press (bepress). https://nsuworks.nova.edu/nlr : Nova Law Review 31, 1 Published by NSUWorks, 2006 1 Nova Law Review, Vol. 31, Iss. 1 [2006], Art. 1 NOVA LAW REVIEW VOLUME 31 FALL 2006 NUMBER 1 Articles and Surveys 2006 Changes to the Florida Rules of Professional Conduct ........................................................................ Heather Perry Baxter 1 Using the Private Attorney General Theory to Protect Florida Charitable Corporations ............................................. Angela Gilmore 27 Engle, State Farm, Florida Law, and Punitive Damages: Was the $145 Billion Punitive Award Truly Excessive? ....... HaroldC. Reeder 57 2005-2006 Survey of Florida Public Employment Law ............ John Sanchez 127 Notes and Comments Florida's "Unrelated Works" Exception to Workers' Compensation Immunity ......................................................... Ross D. Kulberg 157 Setting the Stage for Creative Lawyering in ERISA Reimbursement Actions ................................................... Robert C. Sheres 187 https://nsuworks.nova.edu/nlr/vol31/iss1/1 2 : Nova Law Review 31, 1 2006 CHANGES TO THE FLORIDA RULES OF PROFESSIONAL CONDUCT HEATHER PERRY BAXTER* 1. INTRODUCTION ............................................................................... 2 II. A BRIEF H ISTORY ........................................................................... 3 III. PROCEDURE ..................................................................................... 3 IV. CHANGES TO THE PREAMBLE, SCOPE, AND TERMINOLOGY SECTION S ........................................................................................ 5 A. General Changes Throughout the Rules ............................ 5 B. Changes to the Preamble.................................................. 6 C. Changes to the Scope of Rules ......................................... 6 D. Changes to the Terminology Section ................................. 7 V. CHANGES TO THE RULES ................................................................ 7 A. Client-Lawyer Relationship .............................................. 7 1. RPC 4-1.1 Competence ........................................ 7 2. RPC 4-1.2 Objectives and Scope of Representation .................................................... 7 3. RPC 4-1.3 Diligence ............................................ 8 4. RPC 4-1.4 Communication ................................. 9 5. RPC 4-1.5 Fees and Costs for Legal Services ......... 9 6. RPC 4-1.6 Confidentiality of Information ...... 10 7. RPC 4-1.7 Conflict of Interest; General Rule ........ 10 8. RPC 4-1.8 Conflict of Interest; Prohibited and Other Transactions ............................................ 11 9. RPC 4-1.9 Conflict of Interest; Former Client ....... 12 10. RPC 4-1.10 Imputed Disqualification; General Rule .................................................................... 13 11. RPC 4-1.11 Successive Government and Private Em ploym ent ....................................................... 14 12. RPC 4-1.12 Former Judge or Arbitrator ............. 15 13. RPC 4-1.13 Organization as Client .................... 15 14. RPC 4-1.16 Declining or Terminating Representation .................................................. 15 15. RPC 4-1.17 Sale of Law Practice ...................... 16 16. RPC 4-1.18 Duties to Prospective Client ............ 16 B . C ounselor......................................................................... 17 1. RPC 4-2.1 Adviser ............................................ 17 2. RPC 4-2.2 Intermediary ..................................... 17 3. RPC 4-2.3 Evaluation for Use by Third Persons... 18 Published by NSUWorks, 2006 3 Nova Law Review, Vol. 31, Iss. 1 [2006], Art. 1 NOVA LA W REVIEW [Vol. 31 4. RPC 4-2.4 Lawyer Serving as Third-Party N eutral ............................................................... 18 C . A dvocate ......................................................................... 19 1. RPC 4-3.1 Meritorious Claims and Contentions ... 19 2. RPC 4-3.2 Expediting Litigation ........................ 19 3. RPC 4-3.3 Candor Toward the Tribunal ............. 19 4. RPC 4-3.6 Trial Publicity ................................... 19 5. RPC 4-3.7 Lawyer as Witness ........................... 20 6. RPC 4-3.8 Special Responsibilities of a Prosecutor .........................................................20 7. RPC 4-3.9 Advocate in Nonadjudicative Proceedings ....................................................... 20 D. Transactionswith Persons Other than Clients ............... 21 1. RPC 4-4.1 Truthfulness in Statements to Others ... 21 2. RPC 4-4.2 Communication with Person Represented by Counsel ..................................... 21 3. RPC 4-4.3 Dealing with Unrepresented Persons ... 22 4. RPC 4-4.4 Respect for Rights of Third Persons .... 22 E. Law Firms andAssociations .......................................... 22 1. RPC 4-5.1 Responsibilities of a Partner or Supervisory Lawyer .......................................... 22 2. RPC 4-5.3 Responsibilities Regarding Nonlawyer A ssistants ........................................................... 23 3. RPC 4-5.4 Professional Independence of a Law yer ............................................................. 23 4. RPC 4-5.6 Restrictions on Right to Practice .......... 24 F. Maintainingthe Integrity of the Profession .................... 24 1. RPC 4-8.1 Bar Admission and Disciplinary M atters ............................................................. 24 2. RPC 4-8.3 Reporting Professional Misconduct ..... 24 3. RPC 4-8.4 Misconduct ...................................... 25 G. 5-1.1 Rules Regulating Trust Accounts .......................... 25 V I. CONCLUSION ................................................................................ 25 I. INTRODUCTION 2006 marks a big year for changes to the Florida Rules of Profes- sional Conduct (RPC). This article will set forth the changes and explain the process of how they evolved. Part II gives a brief history of the Flor- ida Rules ofProfessional Conduct. Part III explains the procedure for how these changes were implemented. Part IV explains the general changes throughout the rules, as well as the changes to the preamble, scope, and https://nsuworks.nova.edu/nlr/vol31/iss1/1 4 : Nova Law Review 31, 1 2006] FLORIDA RULES OF PROFESSIONAL CONDUCT terminology section. Part V explains the relevant changes in detail. Part VI concludes the article. II. A BRIEF HISTORY In 1987, the Florida Bar adopted the Rules of ProfessionalConduct, which are found in Chapter 4 of the Rules Regulating the FloridaBar.' These rules were patterned after the American Bar Association Model Rules of Professional Conduct (Model Rules) .2 Prior to 1987, Florida law- yers were governed by the Code of Professional Responsibility, but the Code lacked guidance in many matters and was unclear in many in- stances.3 The rules have been amended over the years, but the changes that went into effect in May of 2006 mark a large overhaul. The amend- ments reflect several years of research and collaboration of many of Flor- ida's top experts on ethics and are based on major changes that were made to the Model Rules in 2002. 4 III. PROCEDURE In 1997, the American Bar Association (ABA) formed the Ethics Commission 2000.' The purpose of this organization was to review the Model Rules and to recommend changes.6 The proposed changes were made final at the end of the ABA February 2002 Midyear Meeting.7 The * Judicial Staff Attorney, Seventeenth Judicial Circuit, Fort Lauderdale, Florida. B.A., 1996, University of Kentucky; J.D., magna cum laude, 2000, Nova Southeastern University, Shepard Broad Law Center. The author expresses her gratitude to Elizabeth Clark Tarbert, Ethics Counsel for the Florida Bar, for her invaluable help in the writing of this article. 1. Florida Bar, Board Information Paper: Lawyer Solicitation (2004), http://www.floridabar.org (follow "Media Resources" hyperlink; then follow "Issue Papers" hyperlink; then follow "Rules of Professional Conduct" hyperlink). 2. Id. 3. Id. 4. Florida Bar, Special Committee to Review the ABA Model Rules, http://www.floridabar.org (follow "Publications" hyperlink; then follow "Bar Reports" hyper- link; then follow "Special Committee to Review the ABA Model Rules" hyperlink) (last vis- ited Jan. 28, 2007). 5. American Bar Association, Ethics 2000 Commission, http://www.abanet.org/cpr/e2k/ (last visited Jan. 28, 2007). 6. Id. 7. Id. In 2002, the rules were further amended to encompass changes recommended by the Multi-jurisdictional Practice Commission and the Standing Committee on Ethics and Professional Responsibility. Id. They were also amended in 2003 based on the House of Delegates debate regarding the Task Force on Corporate Responsibility. Id. This article does not address those changes. Published by NSUWorks, 2006 5 Nova Law Review, Vol. 31, Iss. 1 [2006], Art. 1 NOVA LA WREVIEW [Vol. 31 Florida Bar then created the Special Committee to Review the ABA Model Rules 2002 ("Committee").8 It was charged with analyzing "the changes to the ABA Model Rules of Professional Conduct, compar[ing] them with the existing Rules Regulating The Florida Bar, and consider[ing] whether the Florida Bar should adopt the recommended changes." 9 The Commit- tee not only considered the changes adopted by the ABA, but also re- viewed the existing Model Rules to determine
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