A rule comment on a criminal defense attorney’s duty when his or her client commits perjury will be before the Florida Bar’s Board of Governors at its Friday meeting at Amelia Island.
The board will also consider several ethics and advertising issues, including revisiting Bar rules on attorney-to-attorney advertising, as well as several other matters at the meeting.
The Disciplinary Procedure Committee is addressing the criminal defendant perjury issue with a proposed change to the commentary to Rule 4-3.3. This change would clarify that there is no difference between an attorney’s duty in a civil or criminal case when a client commits perjury.
The commentary would also say that it would be unlikely that the lawyer’s mere withdrawal from the case would adequately correct the misrepresentation to the court.
The Board Review Committee on Professional Ethics is expected to bring back the attorney-to-attorney advertising issue to the board. The committee is looking at surveying Bar members on the issue.
The matter came to the board’s attention on an advertising appeal at its August meeting. The board agreed with the BRCPE that the advertising rules as amended by the Supreme Court last year made lawyer-to-lawyer advertising subject to Bar advertising rules, including the stricture that it be submitted to the Bar for review if it contains more than basic information.
The board, however, also voted to have a moratorium on enforcing that rule, while it studies the matter and considers making a further recommendation to the court.
Prior to last year’s rule changes, a comment in the advertising rules had said that lawyer-to-lawyer ads were not covered by advertising rules. The Bar-proposed amendments that put that comment into the rules also specified that ads sent to current or former clients also were not covered by the lawyer advertising rules.
But the Supreme Court rejected that proposed change and also struck the exemption from the comment. That, and language in the court’s opinion, led the BRCPE to conclude that the court intended lawyer-to-lawyer advertising to be covered by the ad rules.
Another matter coming to the board through the BRCPE is an ethics appeal. In that case, a law firm is inquiring whether a personal conflict of interest of one member of the firm is imputed to all members of the firm.
The board will also consider an advertising appeal on whether radio and TV announcers reading lawyer public service ads must identify themselves as nonlawyers.
The Standing Committee on Advertising, reversing its own earlier vote on the issue and contravening a board vote, recently held that such a disclaimer is not required. But the board recently took the opposite position on a similar file, again noting the Supreme Court had rejected a rule that would allow non-lawyer announcers to read such ads without a spoken disclosure that they are nonlawyer spokespersons.
On another matter, the board will receive the three-year cycle Family Law Rule amendments. It will also review several legislative requests from sections and make several appointments.
— Courtesy the Florida Bar News