Changes based on ABA model rules Court approved amendments to Bar rules Court approved amendments to Bar rules April 15, 2006 Regular News The Florida Supreme Court approved most of the rule changes recommended by The Florida Bar in response to the ABA’s 2002 overhaul of model rules, but rejected some and asked the Bar to study others.The court rejected changes that would expand the duties of prosecutors. Justices said that those issues were adequately addressed in criminal procedural rules.The court acted March 23 in In Re: Amendments to the Rules Regulating The Florida Bar, case no. SC04-2246. The rule amendments are effective May 22.The Bar submission came from a special committee appointed to review the recommendations of the ABA’s Model Rules 2002 Committee. The Bar’s proposals were published in the October 12, 2004, Bar News and the court received written comments and held oral arguments.The court wrote that the Bar proposals would have created a new subdivision (b) under Rule 4-3.8 (Special Responsibilities of a Prosecutor) that would require prosecutors to take reasonable steps to ensure that the accused know of their rights to counsel, of procedures for obtaining counsel, and have the opportunity to obtain counsel. It was opposed by the Florida Prosecuting Attorneys Association and the U.S. attorneys in Florida.“[T]he Florida Rules of Criminal Procedure already invest in other persons or entities the obligations contained in this proposal,” the court said in its unanimous per curiam opinion. “Placing these obligations on prosecutors under the Rules Regulating The Florida Bar is neither necessary nor desirable.”Another alteration made by the court was based on the Bar’s recommendation to require that all clients waiving conflicts do so in writing. The court added a provision that that could also be done on the record in court.The court did accept the recommendation that attorneys owe a duty of confidentiality to potential clients who interview them, talk about their legal issues, but ultimately hire a different lawyer.The court declined to act on two other recommendations from the Bar, and instead instructed the Bar to further study those issues. One was a change to rule 4-3.3 (Candor Toward the Tribunal) where the court said there are contradictions in the proposed amendment.The second recommedation involved a proposed new subdivision to Rule 4-3.8 “which would have restricted a prosecutor from subpoenaing a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client.” The court specifically asked the Bar to look at differences between the Bar’s proposed rule and the ABA proposal.Also, without comment the court declined to adopt the Bar’s proposed changes to Rule 4-3.6, on trial publicity.Other changes include: • The court adopted the ABA’s proposed amendments to the Rule 4-4.1 commentary (Truthfulness in Statements to Others), saying the Bar hadn’t explained the reasons for its alterations to the ABA language.• On Rule 4-1.18 (Duties to Prospective Client), the Bar did not adopt the ABA’s proposal to allow screening of prospective clients for conflicts. The Business Law Section argued against that at the court’s oral arguments. The court added language to permit screening from the ABA proposal to the Bar’s extensive recommended amendment.• Adding new Rule 4-2.4 on lawyers serving as third-party neutrals. The rule defines third party neutrals and requires the lawyer to inform all parties that he or she is not representing them but acting as a neutral to help resolve an issue.• Beefing up Rule 4-1.4 on a lawyer’s obligation to communicate with clients. That includes promptly contacting clients on any matter in which client consent is required, consulting with clients on how their goals are to be accomplished, informing clients of progress, responding to client requests for information, and consulting with clients when they request unethical or illegal conduct.• Adding commentary to Rule 4-1.10 about screening nonlawyer employees to resolve conflicts.• Adding mediators and other third-party neutrals to Rule 4-1.12 on the responsibilities of former judges which prohibits representing any parties in a matter heard as a judge or other third-party neutral unless all parties consent.• Easing the restrictions on selling a law practice in Rule 4-1.17 to allow the sale of an entire area of practice in addition to the sale of an entire practice, and allowing the sale of different areas of practice to more than one lawyer or law firm.• Deleting as redundant Rule 4-2.2 on lawyers acting as intermediaries.• Addressing misdelivered documents in Rule 4-4.4 by requiring the recipient to promptly notify the sender.• Changing Rule 4-5.4 to allow an attorney to divide fees with a nonprofit, pro bono legal services organization. The complete text of the decision and the amended rules can be found at the court’s Web site, www.florida supremecourt.org. A summary of the changes is also available at the sunEthics Web site at http://www.sunethics.com/news_item_33.htm.