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Board of Governors revisits sex-with-clients rule

first_img Board of Governors revisits sex-with-clients rule Senior EditorSex and money?Not what you’d normally expect in a Bar Board of Governors debate on Bar rules. But those two topics provided some spirited discussion during the report of the Disciplinary Procedure Committee at the board’s January 31 meeting.The board approved amendments to the sex-with-clients rule in the Rules Regulating the Bar, and okayed a new rule to give lawyers guidance on setting costs for clients.Both will be in the annual rules package set to go to the court later this month.DPC Chair Bob Brush said the amendments to Rule 4-8.4 were intended to clarify the original rule, which was adopted several years ago. That original rule barred sexual conduct that would exploit the attorney-client relationship, he said, which led to some problems with interpretations. He noted that Supreme Court Justice Barbara Pariente, in a concurring opinion in a recent disciplinary case, called on the Bar to amend the rule to ban sex between attorneys and their clients.The original rule, Brush said, barred sexual conduct that exploited the attorney-client relationship. The revised rule extends the prohibition to client representatives, provides that the interests of the client may not be exploited by such conduct, and lists three examples where the rule would apply. The rule specifies it is not limited to those three situations. The three are:• A lawyer demanding sex with a client or client representative as a condition of legal representation.• Using intimidation, coercion, or undue influence to get a client or representative to engage in sex.• Continuing to represent a client if sexual relations with the client or a representative cause the lawyer to give incompetent representation.Board member Brian Burgoon said he supported the concept behind the changes but thought the term “representative of a client” was too vague.“I think there has to be a definition of what a representative of a client is, I think it’s too broad as it is,” he said.”Board member Hank Coxe noted that the Family Law Section and General Practice, Small and Solo Practitioner Section both opposed the rule.Brush said the sections supported the concept but were concerned about the client representative definition. YLD President-elect Mark Romance said the term shouldn’t be too precisely defined. “It’s probably a good thing. . . because it protects more people than fewer people,” he said. “It reduces the opportunity for abusing the rule.”Brush said much of the revised rule was taken from language used in other states, and was also based on experience with the initial rule.The new rule on costs, part of Rule 4-1.5, are part of the DPC’s long-standing attempt to provide guidance to lawyers on what would constitute excessive costs that could create a disciplinary problem, Brush said.“We have been working on this for over two years,” he said. “Bar members have been calling the Bar for guidance on how to determine costs. It is one of the most frequently asked questions on the ethics hotline.”The new subsection (2) lists factors used to determine reasonable costs and also creates a safe harbor by providing that, “When the parties have a written contract in which the method is established for charging costs, the costs charged thereunder shall be presumed reasonable.”Factors used to determine whether a cost is reasonable include how much the client was told, actual amounts charged to the attorney by third-party providers, whether there is an agreement with the client on how costs are calculated and what the client is expected to pay, and the reasonable cost if it was provided in-house.Several board members criticized the rule as unworkable.Board member Ian Comisky noted his law office has three different copying systems for small, medium, and large jobs, some of which is provided by outside providers with the firm providing paper and space. Legal research can include not only the cost of the service, but also server and phone line expenses, he said.“Any prudent lawyer will have to be a cost accountant to figure what the costs are and what the markups are,” he said.Board member Jay White agreed. “It’s an over-regulation issue. I think the Bar has the ability on any particular case that if there is a lawyer who is overcharging on costs, he can be brought before the Bar and disciplined.”Burgoon said the rule would be a problem for out-of-state members, particularly younger ones, because costs in their firms would be set by senior partners who are not Florida Bar members. That could leave those lawyers subject to a grievance on costs they have no control over, he said.Board member David Welch said that costs need to be added to the rule, which governs excessive fees, but that the factors listed to help determine reasonableness should be eliminated.Board member Anthony Abate, though, argued the rule would meet its goals of letting lawyers know that excessive costs were prohibited and at the same time give them guidance. He said it would be particularly helpful for small firms. He added that the DPC had reviewed the issue three times.The board voted 20-18 to approve the rule, which now goes to the Supreme Court. It tabled for further study a proposed amendment from board member Rob Blue. He wanted the rule to say costs listed as part of a real estate closing that was signed by both parties should be presumed reasonable.The board also approved rule amendments on three other issues.One specifies that an attorney who has been suspended, has resigned, or been disbarred may not for three years work under an attorney the disciplined lawyer formerly had supervision over.Other changes allow an attorney to deposit small amounts of firm money into a trust account to pay bank, credit card, and other expenses that would be difficult to apportion to clients.The third change drops the requirement that all referral fees over 25 percent be reported to the Bar, even if they had been approved by a court. The new rule would have only those arrangements that had been rejected by a court reported to the Bar, which Brush said would lessen the paperwork on Bar staff. February 15, 2003 Gary Blankenship Senior Editor Regular News Board of Governors revisits sex-with-clients rulelast_img read more