bog minutes nov 7-8, 1991

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THEFLORIDABARMeetingof theBoardofGovernors

November7-8,1991 Omni Jacksonville HotelJacksonville, Florida

REGULAR MINUTES

Pursuant tonotice,the regular meeting of the Board of GovernorsofTheFloridaBar wascalledtoorderonThursday,November7,1991, at the Omni Jacksonville Hotel, with President Benjamin H.HillIIIpresiding.1. InvocationThe opening invocation was given by Board member John A.DeVault III.2. Roll CallBoard members present at this meeting:

Benjamin H. Hill III, PresidentAlanT.Dimond, President-electA.G. Condon, Jr., First Judicial CircuitEnoch J.Whitney, Second Judicial CircuitThomas M. Ervin, Jr., Second Judicial CircuitS.AustinPeele,Third Judicial CircuitJohnA.DeVault III, Fourth Judicial CircuitVictor M. Halbach, Fourth Judicial CircuitRobertQ.Williams, Fifth Judicial CircuitKyM. Koch, Sixth Judicial CircuitWilliamF.Blews,Sixth Judicial CircuitR.Dennis Comfort, Eighth Judicial CircuitJohn EdwinFisher,Ninth Judicial CircuitGregory A. Presnell, Ninth Judicial CircuitDavidB.King, Ninth Judicial CircuitR.Kent Lilly, Tenth Judicial CircuitPatriciaA.Seitz,Eleventh Judicial CircuitEdwardR.Blumberg, Eleventh Judicial CircuitSandyKarlan,Eleventh Judicial CircuitManuel A.Crespo,Eleventh Judicial CircuitDianneSaulneySmith, Eleventh Judicial CircuitEdithG.Osman,Eleventh Judicial CircuitJohnW.Thornton,Jr., Eleventh Judicial CircuitRobert M.Sondak,Eleventh Judicial CircuitStuartZ.Grossman, Eleventh Judicial CircuitJosephH.Serota,Eleventh Judicial CircuitScott L.Baena,Eleventh Judicial CircuitEdwinT. Mulock,Twelfth Judicial CircuitMichaelA.Fogarty,Thirteenth Judicial Circuit

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RegularMinutes - Page 2November7-8,1991

Donald A. Gifford, Thirteenth Judicial CircuitWilliam E.Sizemore, Thirteenth Judicial CircuitC. DouglasBrown,Fourteenth Judicial CircuitPatrickJ.Casey, Fifteenth Judicial CircuitTimothy W.Gaskill,Fifteenth Judicial CircuitH. Michael Easley, Fifteenth Judicial CircuitAlfred K.Frigola, Sixteenth Judicial CircuitMichaelJ.McNerney,Seventeenth Judicial CircuitDale R. Sanders, Seventeenth Judicial CircuitWilliamS.Spencer, Seventeenth Judicial CircuitWalter G.Campbell,Jr.,Seventeenth Judicial CircuitThomas G. Freeman, Eighteenth Judicial CircuitGeorgeH.MossII,Nineteenth Judicial CircuitJohnA. Noland,Twentieth Judicial CircuitWilliamL.Guzzetti,Out-of-StateEdwinMarger,Out-of-StateFrederick J. Bosch, Out-of-StateRobert C. Palmer III, YLD PresidentWayne L.Helsby,YLD President-electAbraham S.Fischler, Public MemberTheodore R. Struhl,M.D.,Public Member

Absent this entire meeting:Horace Smith,Jr.,Seventh Judicial Circuit

AbsentThursday only:EdwinMarger, Out-of-State

Absent Friday only:RobertM.Sondak,Eleventh Judicial Circuit

Staff attending included:JohnF.Harkness,Jr.,ExecutiveDirectorPaulF. Hill, Director, Communications DivisionJohnT.Berry, Director,Legal DivisionJohn A. Boggs,Director,Lawyer RegulationJohn E.Griffin, Advertising CounselFredA. McDowell, Director, Governmental Affairs(Thursday only)AllenL.Martin, Director, FinanceandAccounting(Thursday only)Mary EllenBateman,UPLCounsel(Thursday only)Lori Holcomb, AssistantUPLCounsel (Thursday only)MichaelA.Tartaglia,Director, ProgramsDivision(Thursday only)GeraldA. Butterfield,Director, Public Informationand BarServices Department (Thursday only)DaleDeHart,Director, Planning and Evaluation(Thursdayonly)

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Regular Minutes - Page 4November 7-8, 1991

probable causeandplaces sameon barcounsel. Acopyofthe amendment will be published in theDecember1issueof TheFloridaBarNews.3. TheamendmentstoRule4-7.8,Lawyer ReferralServices, removetheconfidentialitywaiver provisionoftherule; clarifythetypeofinformationtheservicesmustreportto the bar fordisciplinaryhistory reviews; clarify that only local bar operatedservices are approved by The Florida Bar; and toprovideadditional definitional languageas towhatconstitutes a referral service. A copy of theamendments willbepublishedin theDecember 1issueofThe Florida Bar News.4. The amendments to Rule 6-12, Basic SkillsCourseRequirement, are gender neutral;organizational;provide anexemptionforcertain out-of-statepractitioners;and streamline the procedures fordetermining failure to comply withBSCR. A copy of theamendments willbepublishedin theDecember1issueofThe Florida Bar News.5. The amendments to ELSE Policy 700 series conformsthesepoliciesto theamendments madetoRule 6-12. Acopy of the amendments are attached hereto and made apart of these minutes.

D. FeeArbitration Circuit CommitteeAppointmentsTheBoard approvedthefollowingthree-yeartermappointments:Dennis Cohrs, St.Petersburg,new attorney member, SixthJudicial CircuitFeeArbitration Committee CMichaelHastings, St.Petersburg,newattorneymember,SixthJudicialCircuit Fee Arbitration Committee CJohnH.Hickey,Miami, new chair, Eleventh Judicial CircuitFee Arbitration CommitteeR.MichaelHome Tampa,newpublic member, ThirteenthJudicialCircuitFeeArbitration Committee

5. Legislation Committee ReportChair John DeVault presented the following recommendations of theLegislation Committee. (Note: Unless otherwise noted, the Boardtook the action indicated after first finding the issue within theguidelinesforlegislative action,andthenby therequired2/3majorityvote.)

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A. Report of Special Committee to Study SectionLegislative Policy--JohnDeVaultreportedthespecial committeehasdevelopeddraftguidelinesforconsiderationby theCouncilofSectionsat itsNovember15meeting. Board actionwasdeferred until January pendingarecommendation fromtheCouncilofSections.B. Status of Merit Selection and Retention Legislation --Committee member Ronald Austinpresentedthepositionof theCommittee on Equal Opportunities in the Professionwithrespect to The FloridaBar's pure form merit selectionprocess. Hereportedthecommittee,bytwo-thirds vote,approvedanamendmentto theBar's pure form meritselection legislationtoinclude language guaranteeingaccess for minorities and women in the judicial meritselectionandretention process.The committee'spositionwasdeferredby theLegislationCommittee untiltheJanuary Board meetingforfurtherconsideration.C. SupportforFundingof theGuardianAdLitemProgram --PresidentHillinformed the Board that a press conferencewas held in Tallahassee to begin a public service campaigntoeducatepeople abouttheGuardianAdLitemprogram.Mr.Hill further stated thatit is avital program thattheBar needs to make certain is not hurt in any respect.JaneShaeffer,directorof theGuardianAdLitemprogram,reported thattheprogram, administeredby thecourtsystem,represents abusedandneglected children that enter intothecourt system.Ms.Shaeffer stated thattheprogramrepresentedover24,000childrenin thejudicial system last year withtheassistance of 5,400 volunteers, 800 of them beingattorneys.Ms.Shaeffer further statedtheGuardianAdLitem programrecruits,trainsandmonitors volunteerstorepresentthesechildrenincourt, adding thattheprogramisonlyrepresenting 47 percent of the children coming into thedependency system.Ms. Shaeffer informed the Board that the program is injeopardyofbeing eliminated becauseofbudget cuts. Sheasked the Board to not only pass a resolution to requestthattheprogramnot becut,butthatitreceive fullfundingin thenext legislativesession.She further indicated the Guardian Ad Litem program hasstarteda grassrootscampaign withthe5,400volunteers to

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RegularMinutes-Page6November 7-8, 1991

reach the Legislature in forestalling the budgetcuts. Shealsorequestedthehelpofeach board membertowork withinhis/hercircuitinsupportingtheGuardianAdLitem program.President Hill stated thatthecurrent budgetof theGuardianAdLitem programis 3.5million whichis notenoughto get the job done. He indicated that a full budget andmore volunteersarerequiredinordertohelp thesechildren.The Legislation Committee recommended support for continuedfundingof theGuardianAdLitem programaspartof TheFloridaBar'slegislative agenda.Upon motion,theBoard approvedtosupporttheGuardianAdLitem programas alegislative positionof TheFlorida Bar.D. HealthLawSection Legislative Request TheLegislation Committee recommended thattheHealthLawSection's positiontosupportHB39 and PCB92-01,pertainingtolife prolonging proceduresandadvancedirectives, now be a legislative position of The FloridaBar.Andrew Rock, Chair of the Health LawSection,stated thependinglegislation,HB 39 and PCB HC92-01, will reconcileexistingchapters 765,745 and709, FloridaStatutes,withthe SupremeCourt'sholding In re; Guardianship of Browning,568 So.2d 4(1990). Thelegislation will combineall of thedifferent provisions pertaining to life prolongingproceduresand advance directives into one chapter of theFloridaStatutes, render the law consistent with theBrowning case and the Florida Constitution, and removeproceduralandsubstantive inconsistencies betweenthevariousexisting provisionsof thelaw.Upon motion, the Board approved the position to be withintheguidelinesforlegislative action.Upon motion,theLegislation Committee'srecommendationtosupportthelifeprolonging proceduresandadvancedirectives as alegislative positionof TheFloridaBar wasapproved.WilliamBlews made a motion, which was seconded, toreconsidertheBoard'spositiononlife prolongingproceduresandadvance directives.Mr. Blews stated that he did see this as a position of TheFloridaBar butratherasection position. Mr. DeVaultresponded thatthesection's position fell withinthethreeoutside criteria inSchwarz,and that it had a broad rangeofsupport insideandoutsideof theBar.

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Regular Minutes-Page7November7-8, 1991

Themotiontoreconsider failed.E. Real Property, ProbateandTrustLawSectionLegislative Requests --TheLegislation Committee recommended approvalof theRealProperty, ProbateandTrustLawSection'srequesttotakethefollowing legislative positions:

1. SupportanamendmenttoSection744.301(4)(a)regarding claimsofminorsinpersonalinjury,propertydamageand wrongful deathcases.2. Supportanamendmentto thestatutorylawregarding presumption of survivorship with respect tocredit unions, banksandsavingsandloanaccounts.3. Support constitutional revisiontoincludetheexpansionof therighttofreely devise homesteadpropertyatdeathbydeletionofconstitutionalrestrictions on devise of homestead.4. Support an amendment to the probate codeindicatingthatnowill contestmay bebrought untilthedeathof thetestator.5. Propose additions toF.S.732.4015,F.S.731.301andF.S.737.206tocodify caselaw and tobring trustlawprovisionsinparallel withtheProbate Code.6. SupportanamendmenttoSection 733.817tobringitinline withthepresent provisionsof theInternalRevenueCode dealing withtheallocationofresponsibility for the payment of estate and othertransfer taxes;and toincludethe newtransfer taxesfound in theInternal Revenue Code.7. Support revised AssignmentofRents Statute(697.07,F.S.)and Legislative History, and opposeportionsofSponsor's Notes.8. Support an amendment to clarify that liens are notexceptedfromtheintentof thelispendensstatute.9. Support amendmentandrepealofantiquated laws,including deletion fromaprovision relatingto theeffectof awarranty deed, obsolete language relatingtothe effect of such deed when signed by a marriedwoman; repeals obsolete provisions relatingtocountycourt records made prior to May 4,1875,verificationofrecords, judgments entered prior to June 5, 1939,andquieting titleondeeds without joinderofwifewhen separated for 30years.

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10. Supportanamendmentto act feltdesirableinviewofthequestion relativeto thefilingofCERCLA lienspayableto theUnitedStates.11. Support Condominium Act glitch bill amendments toaddress inconsistencies,ambiguitiesandothertechnical problems in Chapter 91-103, Laws of Florida.12. Supportthecontinuation of thecurrentexemptionfromlicensing of attorneys as title insuranceagents.13. OpposetheEntertainment,ArtsandSportsLawSection'slegislative position concerning contracts forminors in the entertainment and sportsindustries.

Afterconsideration, the Board unanimously approved the RealProperty Section's request to lobby the proposed legislativepositions.F. Public InterestLawSection Legislative Requests --The Legislation Committee recommended approval of sectionlobbying for the Public Interest Law Section on thefollowing legislative positions:

1. Support legislationoninformed consentrequirementsfordoctorswhoproposetomedicatechildren with Methylphenidate(Ritalin).MichaelFogartystatedhe hadsomeconcernaboutwhy thePublicInterest Law Section would not refer this issue tothe Health Law Section. He also stated the legislation tookstrongpositions abouttheimpactof thedrugwithoutanyevidence,andthatit wasunnecessary for thePublicInterest Law Section or Health Law Section to be draftingandsupporting legislation designedtotelldoctorshow topractice medicine. Mr. Fogarty also indicated thelegislation would require thatiftreatment continuedformore thanoneyear with this medication,asecondopinionmust be sought by another physician not involved with thetreatment, and all signed consent forms must be sent to theDepartment ofProfessional Regulation.Some opposition to Mr.Fogarty'sposition addressed thefunctionof thePublicInterestLawSection,and itsprerogative to present its views on this issue. It was alsostated thatifanother sectionis inoppositiontothisposition,itshouldbeallowedtopresentitsview.Skip Campbell made a motion, which was seconded, to deferuntil Januarythelegislative positionrequestuntil inputbytheHealthLawSectionand anyother appropriate sectioncan begained.

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DonaldGiffordadded that because of proceduralrequirements,theposition shouldhavebeen forwardedto theHealth Law Section.Afterconsiderable discussion,themotiontodefer thispositionrequest until considerationby theHealthLawSectionfailed.

2. Support in concept Senator Weinstock's proposedUniversal AccesstoHealthCareinFlorida.3. Supportandactively campaignfor thepassageofHB227 andcompanion Senate legislationinrecognizingalegal obligationtoprovide medical, mental healthanddevelopmental servicesto allchildrenin thelegalandphysical custodyof theStatewhoneed suchservices.

Afterconsideration,theBoard approvedthePublic InterestLawSection'srequest to lobby for the proposed legislativepositions.G. TaxSection Legislative Requests --TheLegislation Committee recommended approvalofsectionlobbyingfor the TaxSectionon thefollowing legislativepositions:

1. Supportfor aproposed revisionto theFloridalimited partnership statutetopermitmergers betweenlimitedpartnerships (both domesticandforeign)aswell asbetween limited partnershipsandcorporations.2. Support an amendment to Section 733.817, FloridaStatutes, dealing withtheapportionmentofestateandother transfertaxes.

Afterconsideration, the Board approved the TaxSection'srequesttolobbyfor theproposed legislative positions.H. Entertainment, Arts and Sports Law Section Legislative

Request --TheLegislation Committee recommendedtheapprovalofsection lobbyingfor theEntertainment, ArtsandSportsLawSection,whichispartially opposedby theRealProperty,Probate and Trust LawSection,on the following legislativeposition:

1. Under certaincircumstances,contracts enteredinto byminorscan beapprovedby thecircuit court,sothatthedisabilityofminorityisremoved. Theproposed contact must be consented to by theminor'sparentsandsometimesaguardianadlitembefore

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approvalisgrantedby thecourt; thereafter,theminor's income is held by a guardianship account withdisbursements made only upon court approval.EdwardMulockstated thattheRealProperty, ProbateandTrust Law Section felt that the legislation did not fullyaddresstheguardianshipissues.Afterconsideration, the Board approved theEntertainment,Arts and Sports Law Section's legislative position request,andthe Real Property, Probate and Trust Law Section tolobbyits partial opposition if the two sections cannotworkouta compromise.I. Trial Lawyers Section --The Trial Lawyers Section will lobby legislation in favor oftheCambridge planforreformof thejury system,meritretentionandincreased judicial funding.Note: Because these section positions have already beenapproved thisbiennium,no vote was required by the Board onthese positions.J. Immunity from Civil LiabilityforCertainVolunteers JohnDeVaultreportedthattheLegislationCommitteedeferredconsiderationof thelegislation pertainingtoimmunity from civil liability for certainvolunteersbecausethere was little time to fully consider the legislation, andtherewas nocommittee supportfor thebillatthis time.JackHarknessadvised thatthebillisbeing supportedstrongly by the Florida Society of AssociationExecutives.Accordingly, Mr. DeVault requested that the legislation bereconsidered by the committee.Afterreconsiderationthefollowing day, John DeVaultreported that the Legislation Committee unanimously opposedthebill. Hestatedthecommittee feltitwould impedeaccess to thecourts.Abraham Fischlerstated thatit wasgetting harderfornon-profit charitable organizations tofindpeople willingtoserve on boards because of the liability factor. Headdedit isalmost impossibleforthese individualstoacquire director's liability insurance because of theprohibitiveclause; thus,itmakesitmore difficultfor theprivatesectorof thenon-profit sidetofind people willingtoserve.Mr. DeVault advised that this legislation would provideblanket immunityif theindividualwasactingingood faith;

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addingthat this kindofoverall denialofaccessto thecourtsforliability wouldbefrightening.A motionwasmadeandsecondedtoamendtheLegislationCommittee's recommendationtoincludearequesttoinstructthelegislative representativestowork towardanimprovedimmunity act,butwith better safeguardsforthosewhomightbeaffectedby thelegislation.After consideration, the motion failed by a 14-21 vote.Upon further motion,theBoard adoptedtheposition,asrecommended by the Legislation Committee, to oppose theFlorida Volunteer Immunity Act.K. Business Law Section Legislative Request --The Legislation Committee recommended approval for theBusinessLawSectiontosupportatechnical amendmentto theReplevinStatutes.After consideration, theBoard approvedtheBusinessLawSection'slegislative request.L. FloridaBarLegislative Advisor ContractsforRichard

McFarlainandRick Sisser The Legislation Committee requested approval of the outsidelobbyistcontractsfor the1991-92 fiscalyearfor Mr.Sisserand for1992-93for the lawfirmofRichardMcFarlain.Afterconsideration, the Board approved the contracts aspresentedby theLegislation Committee.M. Judicial Nominating Commission Reform --JohnDeVaultreported on a proposed amendment to FloridaStatute Chapter43.29(1),regarding Judicial NominatingCommissions. The amendment would insert a clause in43.29(3)which would read as follows:

...duringa term of good behavior unless removed forcause...Mr.DeVault indicated this amendment would provideameansforremoval of a member of a judicial nominating commissionthat is not properly performing in accordance with thestatutes,infulfillingatermofgood behavior.TheLegislation Committee movedtoinsertthewords duringa term of good behavior unless removed for good cause aftertheword years and before the word and .

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Afterconsideration, theamendmentwasapproved.Mr.DeVault also reported that the Legislation Committeerecommended opposition to pending legislation that wouldmakepublicthedeliberationsof ajudicial nominatingcommission. Hefurther advised thatallportionsof thecommissionarepublic exceptfor thefinaldeliberationsandvoting.Amotionwasmade,secondedandapprovedtoopposelegislationtomake publicthedeliberative processof thejudicial nominating commissions.

6_ Unlicensed Practiceof LawCommittee ReportUPLstaffcounsel Mary Ellen Bateman reported thatshe wasdirected by theBoard several yearsago toamendtheUnlicensedPracticeof LawRulestoconform themto thegrievance rules, particularly with regardtoconfidentialityandthe gagrule. Therule amendments were approvedby theStanding Committee on UPL in June, 1990 for BoardactioninJuly,1990. Sheadvised thattheBoard deferred reviewofthe rule amendments because the Program Evaluation Committeewouldbeevaluatingtheprogramtodetermineitscontinuation.AfterPEC's evaluationof theprogram concluded thisyear,itwasrecommended thatthe UPLprogramcontinuewithprosecutions being sentto theStateAttorney'sofficeforaction. Ms. Bateman advised that LoriHolcomb,assistantUPLstaffcounsel, would report on the specific UPL ruleamendments.Lori Holcomb reported that many of the changes made to theseruleswere organizational, with a definitional section added(Rule10-2). Shereportedthefollowing proposed ruleamendments:A. Thenumberofpublic membersonlocalcircuitcommitteeshasbeen changed fromone toone-third (Rule10-4).B. Allcomplaints mustbe inwritingandsigned underpenaltyofperjury (Rule10-8).C. Eliminationof the gagrule (Rule10-8).D. The existence of a UPLcomplaintbecomespublicand therecordmay bereleased after certain actionistaken(Rule10-3).E. TheStanding Committeeon UPL mayissue informaladvisoryopinionsfindingthattheconduct doesnotconstitutetheunlicensed practiceof lawwithoutthe

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requirement offilingthe opinion with the Court (Rule10-9).Ms.Holcomb advised thattherule amendmenton theformaladvisory opinion has beenincludedto change the requirementthat anentire opinion mustbepublished.She added that The Florida Bar News and Journal department,because of cost factors, requested that this requirement bereplaced, and only require a notice of opinion and summary,withacopyof theopinion available upon request.Ms. Holcomb stated that there were some objections to thisrule amendment which includedthemembershipandpublicbeing less informed about the contents of the opinion andhow it may affect them, and insufficient time to respond tothe opinion.President Hill stated, with Ms. Holcomb concurring, that theCourt routinely gives extensions.Ms.Holcomb further advised thattheUPLdepartment,byadopting a Standing Committee policy, could publish thenotice and summary, and then file the opinion two weekslater which would address some of the concerns raised.After consideration and upon motion, the Board approved theamendmentstoChapter10 asrecommendedby theStandingCommittee on UPL. A copy of the amendments will bepublishedin theDecember1issueof TheFloridaBarNews.

7. Members Benefits Committee ReportStaffliaison Michael Tartaglia reported on therecommendations of the Members Benefits Committee. It wasrecommendedby thecommitteetochange health insurancecarriersfromCIGNA to North American Life AssuranceCompany. He advised that the insurance company agreed totake the current book of business as it exists.HefurtherreportedNorthAmerican Life AssuranceCompanypresented an exclusive offering which included$1,000deductible; co-insurance payment up to $25,000 dollars; a$5,000,000maximum benefit; and a twenty-two (22) to forty(40)percent lowerpremium,guaranteed for one year. Headdedthat the ancillary program offers term life, long-termdisability, hospital indemnity, and accidental death anddismemberment at a lower premium.Mr. Tartaglia advised that the company is rated by AMF StatePlus, and is the 28th largest, privately held company inCanada. He added that by revenue, its assets are 6.2billionwithaconsolidated premiumof 926millionin1990,andan income of $48.2 million. He further stated the

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8.


company doesnotinvestinjunkbonds,and its netinvestment grade bond holdingsare 4.1percent.Mr.Tartagliaalso advised that approximately a hundredpeople currently participate in the insurance program, withsome having seriousandexpensiveproblems. Hefurtherindicated thatfewinsurance companies will pickupcurrentmembers when changing insurance programs, and that severalcommittee members felt the Bar should drop the healthinsurance program.Some board membersexpressedconcern abouttheneedforhealth insurance by solepractitioners,and the restrictionsoftransferring membersfromone insurance entity toanother.Mr. Tartaglia stated that any member whose premium iscurrent with the present insurance carrier will not beprohibited by North American Life from transferring to theirinsurance program.President Hill suggestedanoticebepostedin the BarNewsoutlining the newinsurance program.After consideration andupon motion,theBoard approvedtochangethehealth insurancecarriertoNorth American Life.

Budget Committee ReportChair AustinPeelereported on the following budgetamendments which received Board approval:FromtheGeneral Fund:

General Counsel - Employee Travel

Committee on the Elderly(postage for Elder Law Section)

Committeeon theElderly(travelreimbursements)

Special CommitteeonGenderEqualityin theProfession(telephone distribution)

-0-expense (fundingfromD.D.Comm.travelbudget)$2,000expense(fundedfromthe operatingreserve)$3,026 expense(fundedfromthe operatingreserve)$644expense(fundedfromthe operatingreserve)

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Legal Specialization&EducationPool (combine2part-time positionsinto 1 full-time position)

Finance&Accounting(Education Registration)

Public Interest - Legal Forms(developandsimplifiedlegalforms)Public Information - Legal FormsDistribution (distributionofsimplifiedlegalforms)

LOMAS(reductions of fees byYLDfor video program from$99 to$75)Committees - Standing Committeeon Professionalism (temporaryloan for printing of booklet;will be funded by sections)Cost Allocation Amendments-Data Processing Operations-Word Processing

From the Building Reserve:Repay funds to Building Corporationexpendedforpaving parkinglot

FromtheClients'Security Fund:CSF Committee (meeting expense)

$7,700 expense(fundedfromrevenueinCLER,Designation&Certification and staff&officedistribution)$1,750expense (fundedfromthe operatingreserve)$1,500netexpense(fundedfromtheoperating reserve)$22,135 total expense(fundedfromsalesand staff&officedistribution)$1,288 expense(reductionofbudgetedsurplus of fundbalance)$1000 expense (fundedfrom operating reserve)

(notice only - noimpact on general fund)$7,838expense$46,163 expense

$45,000 expense

$175expenseChairPeele reportedthetotalnetimpactof$10,708to thegeneral fund.Additional budget amendments approved by the Board includedthe Professional Stress Committee's requesttotransfer$1,400of$1,500budgetedforMidyear MeetingtoJudicialAwareness;and theBoardofLegal SpecializationandEducation's request to waive certification examination feesfor the first 50 government attorneys and a reduction offees overatwo-year period, allowing government attorneysthe opportunitytoapplyforcertification.

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Regular Minutes - Page 16November7-8,1991

TheBudget Committee also tentatively approvedacontractwith FloridaLawyersAssistance,Inc.forservicesrenderedtothe Bar.ChairPeeleadvised that as a result of the action the Boardhastakenonprevious budget amendments (pertheBudgetCommittee'srecommendation),thegeneral fundreservehasdecreased from $350,000to$187,000. Additionally,the newprogram reservehasgone approximately $37,000overbudgetfromitsprevious balanceof$100,000.Staff member Allen Martinreportedthat94% of thebudgetfrom member dues was collected by the end of September, withapproximately 3,000members still delinquent.Mr. Martin reported the CLE revenue is approximately down by2,500 inadvanceregistrations,withon-siteregistrationsunchanged.He further advised that Lawyer Regulation will be contactingallattorneys about their delinquent dues which willincreasethecurrent budget, withMr.Peele addingthat theBar historically has recovered most of the delinquentdues.Lastly, Chair Peele reported that the Budget Committeeapprovedbudgetof theCommitteeonEqual OpportunitiesintheProfession,includingthecommittee'sBusinessDevelopment Conference. Mr. Peele advised that the BudgetCommitteehadapprovedtheconference'sbudgeton theassumption that it includednonminoritywomen.

9. Investment Committee ReportChair GregPresnellreportedon theinvestmentstatusof theBar as of the end of September which included $18 million inassets, $1 million in cash, approximately $4 million incommercialpaperswhichisusedforshort-term investments,$9million with investment managers for long-terminvestments,and $2millioninbuildingcorporationstock.Mr. Presnell advised that the managers produced a compositereturnoffive percent (5%)for thethirdquarterof1991,whichwouldannualizetoapproximately twenty percent(20%).Mr. Presnell reported the committee has been looking at thebuildingcorporation as a pro forma to determine thefinancial statusof thebuildingas aninvestment. Duringthecurrent fiscal year, it has generated $533,000 inrevenue withanexpenditureof$455,000,resultingin apositivecash flow of$78,000. However, a pro forma on thebuilding over the next several years shows a deficit of$20,000to$40,000,withthepossibilityofbreaking evenwith renting and otherchanges.

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JackHarknessreported that the Department of Transportation(DOT)hasleasedthesecond, thirdandfourth floorsof theBar's annex exceptforapproximately 1,700sq. ft.o thesecond floor, whichDOT isconsidering. The Bar hashalfofthefirst floor,FLMIC hasapproximatelyaquarter,and theremainingisbeing consideredforstorage.10. LegalTechnicians Study Committee Report

ChairGreg Presnell reported on the activities of the LegalTechniciansStudy Committee. Mr. Presnellreportedthecommittee held its second meeting with approximately thirty(30)attendees,which includedparalegals, lawyersandeducators, and indicated that it was a very informativedialogueinwhichthecommittee learnedagreat deal.Mr.Presnell informedtheBoard thattheissueoflegaltechnicians,whichthecommittee definesas anonlawyerwhoisproviding servicesof alegal natureto thepublicforcompensationwithoutthe supervision of alawyer,is aclassicconflict between the natural forces of themarketplaceand theneedforprotection. Themarketplaceisdictatingademandforlegalservices,and it isbeingrendered becauseof thehighcostoflegal services.Mr. Presnell also pointed out that there are legaltechniciansrendering serviceswithnotraining,noeducationand noregulation.Mr. Presnell presentedathirty (30) minute advertisementmarketing a how-to manual that teaches how to get richpracticing law without being a lawyer. He advised that thecommercialhasbeen airingonFlorida cable television,adding thatthereis no effectiveunlicensedpracticeof lawenforcement to deal with this issue.Mr. Presnell stated the issue the committee has undertakeninvolvesthe Florida SupremeCourt'sefforts to includeaccess to the legal system by simplified forms, and the needforlowcost legal services, whichheaddedhasdrivena newentrepenurialspirittoprovide legal serviceswithoutbeingalawyer,orsupervisedbyone.Itwasalso stated thattheissuemay be aresultof thelegalprofession pricing itselfout of themarketplacebecauseof thehigh costoflegal services.Mr.Presnellfurther stated thattheCaliforniaBar haddevised watered down legislation, whichwasdefeatedbytheBoardofGovernors,tolicenseandregulate legaltechniciansinlandlord/tenant law, adding that another billhasbeen enacted by the California legislature to authorizelegaltechnicians under some form of regulation by theexecutive branch.

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There wereanumberofconcernsandsuggestions raisedbytheBoard which includedaneedtoclarify what areain thepractice of law is protected by the statute; exercising alegaljudgment without formal education; the need forfulldisclosureof qualifications inadvertisements;aneedforprosecutorialprocedures;and theissueofsolicitationbylegal technicians.Mr.Presnellreported that the committee hopes to be on theagendaof the All BarConferenceandadded thatonJanuary 9, following the All BarConference,a full daypublic hearing willbeheldinOrlandoinwhich publictestimony will be taken from legal technicians, paralegals,educators, consumergroups, Barsections,etc.Mr. Presnell advised that the committee will convene inTampa priorto theBoard'sMarch meeting,andwithafinalmeeting inApriltoprepareareportto bepresentedto theBoard for consideration at its May meeting.

11. Public Relations Committee ReportChair Sandy Karlan reported on the various projects of thePublicRelations Committee which included a press conferencethatwasheldtosupporttheGuardianAdLitemprogram. Shereported that approximately two hundred calls have beenreceived from television stations abouttheprogram sincethe press conference, adding that the Guardian Ad Litempublicservice announcement has not been played at anytelevisionstations. Ms.Karlan alsopresented abriefvideoon the various news coverage the press conference hasreceived.Stuart Grossman recommended that each Board member becomeaguardianad litem, inadditiontolobbyingtheFloridaLegislature for funding. A motion was made and seconded toresolve thatall of theBoardofGovernors'namesbesubmitted to the Guardian Ad Litem program within theirrespective circuits.RobertSondak andseveral Board members raised concernsaboutthemandatory undertonesof theresolution; othermembersfelttheBoard shouldset anexampleto themembership.Amotion was made to amend the resolution to state the Boardbyacclamation will submit their namestoserveas aguardianadlitem. Theamendmentfailedfor alackof asecond.The motion to submit the names of the Board of Governors totheGuardianAdLitem programwas withdrawn. Accordingly,amajority of the Board voluntarily agreed to become aguardianadlitemintheir respective circuits.

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Ms. Karlanreported thatthecommitteeisdevelopingaprojecttoeducatethepublicon theworkingsof thejusticesystem,theU.S. Constitutionand theBillof Rights. Thecommitteehopestohaveitreadyforreviewby theBoardinJanuary.She finally reported thatthespokespersontraining programscheduled forNovember20 wascancelled,andasked whetheritshould be continued.President Hill advised that the program could be scheduledinconjunction withtheJanuary Board meeting.

12. Program Evaluation Committee ReportChairPat Casey reported on the activities of the ProgramEvaluationCommittee. HeadvisedtheBoard thatPECbeganreviewingtheClients' Security Fund program. Hestatedthatthecommitteeis insupportofcontinuingtheprogram,and it was the feeling of the committee not to establishfinancialstipulationsforplaintiffs,butleavethefundsavailable for victims of defalcatingattorneys.Mr. Casey reported that the committee discussed imposingconditionstofilingacomplaint which included filingacriminalcomplaint,andrequiringagrievance matterbefiledprior to filing a complaint with theClients'SecurityFund Committee, unless the attorney is disbarred, deceased,or has resigned. The committee opposed the requirement offiling civilclaimsby theplaintiff. Hestatedthecommittee willbediscussing issues relativeto theClients'Security Fund in January.Mr.Casey informedtheBoard aboutthecommittee'spreliminary discussion on the Out-of-StatePractitioners'proposal for division status. He stated that the committeeisconsidering various organizational structures whichincludeenhancing its committee status, or giving it sectionstatus. He added that the committee has also considered aduesstructureto support the program.Lastly,Mr.Casey reportedon thecommittee's decisiontodirecttheCommitteeonEqual Opportunitiesin theProfessiontoincludenonminoritywomenin itsBusinessDevelopment Conference.

13. Reportof theSpecial Committeeon the All BarConferenceChairMichaelMcNerneypresentedonbehalfof theSpecialCommitteeon the All BarConference their proposedconference format and agenda topics for inclusion on theformalagendaof the All BarConference.

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Regular Minutes - Page 20November7-8,1991Mr.McNerneyreported thecommitteehasbeen successful,withthehelpofBoard memberKyKoch,inobtaining fundstounderwrite the expenses of the conference, and furtherindicatedthatthestructureof theconference would includeone or twoitemsto bedoneinbreakout groups. Thisis inresponsetocomments received from previousall barconferences thattheformatdid notlend itselftoparticipationby all of theattorneys present. Thecommittee hasplannedtoeliminate designated speakerstoallowthedelegates toparticipatein thedebatesand therollcall vote.Thecommittee recommendedthefollowing topicsasagendaitemsfor the All BarConference:a) Clients' Security Fund Issuesb) Legal Techniciansc) Gender Biasd) Reporting Professional MisconductItwas moved and seconded to approve theClients' SecurityFund,Legal TechniciansandGender Bias topicsfor the AllBarConference.EdwardMulockstated thatthegender bias ruleisstillbeingworkedon, and isnear completion. Hestated thatitwouldbeunfairtoconsidertherulenowbecause additionalinformation needsto be puttogether tohelp educate peopleon thetopic.Asubstitute motion was made and seconded to approveClients' Security Fund, Legal Technicians and ReportingProfessionalMisconductastopicsfor the All BarConference.ThomasErvinstated thatthelegal technicians topic mightbetoocomplex for theconference,but Mr. McNerney advisedthatthe Legal Technicians Committee requested that theseissuesbe discussed.After consideration, themotionwasapproved.Thefollowing Board members have been appointed as delegatesoftheBoardofGovernorsto the All BarConference:1) Gregory A.Presnell2) DonaldA.Gifford3) JohnE.Fisher4) WilliamF.Blews5) PatriciaA.Seitz

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14. RulesofJudicial Administration Committee ReportA. ChairTonyMustoreportedon theRulesofJudicialAdministration Committee's proposed four-year cycle ruleamendments, stating that mostof therule amendmentsinvolvededitorial changes made pursuant to Florida Supreme

Court request.Chair Musto further advised that some rule amendmentsrecommended by thecommittee involve substantivechangeswhich needed review by the Board:Rule2.040,District Courts of Appeal--Therule amendment reflect changesin theFloridaConstitution regarding Supreme Court jurisdictionandchangesto theFlorida RulesofAppellateProcedure,and arenot intended to have a major substantive effect. Afterconsideration, the Board, by a 42-0 vote, concurred in theamendments as proposed by the Rules of JudicialAdministration Committee.Rule2.085,Time Standards For Trial and Appellate Courts --The amendments reflect changes in the statutes and theFlorida Probate Rules. After consideration,theBoard,by a42-0vote, concurredin theamendmentsasproposedby theRules ofJudicial Administration Committee.Rule 2.071, Use of Communication Equipment--ChairMusto statedthechangeinthis ruleis torequirethat in cases other than criminal, appellate and juveniledelinquency proceedings, where a motion is set for fifteen(15)minutes or less, and a party wants to participate inthat motion hearingbytelephone,thecourtisrequiredtoallowitunless there exists good causetodeny sucharequest.MichaelMcNerneyraisedthequestion that both partiesshouldbeaudible duringthemotion hearing.Mr.Musto stated that subsection (c),AudibilityRequirement, addresses this concern.Donald Gifford inquired as to whether the refusal of a judgetoinstallatelephonein thehearing room would justifygood cause under this rule.Mr.Musto advised that there mustbe areasonable basistodeny the request, not just the judge's opposition totelephone hearings.

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SkipCampbell stated his concern with subsection (d),BurdenofExpense, possibly inferring that costs would includeallcostsof thehearingsratherthanthecostoflongdistancecharges, etc.Scott Baena made a motion to amend Rule2.071(d),Burden ofExpense, to read as follows: All telephonechargesoccasioned by the participation or testimony by telephoneshallbe borne by the party or witness requesting the sameunless otherwise directedby thecourt.Mr.Baena'smotionwasseconded.Afterconsideration and upon motion, Mr.Baena'samendmentto2.071(d)was approved.Frederick Bosch questioned whether the committee consideredtheinherit prejudiceif one of theparties participatesbytelephone,andanother partyispermittedto bepresentinthehearing.Mr. Mustoresponded thatthecommittee considered thisanditsfeeling was this only occurs when the party requests toparticipate bytelephone. Heindicated thatno one isforced toparticipatein atelephone hearing,andtheydo soknowing that prejudicemay bethere.Mr.Bosch further questionedwhethertherule could includea requirement stating that during telephonic hearings allpartiesbeheardbytelephone,and not inperson.Mr. Musto stated the committee discussed this issue, with ageneral consensus that the right of a party to be presentoutweighedtherightof theparty unableto bepresent. Hefurther statedthepartyrequesting thetelephonichearinghadtheoptionto bethere,orassumetheinherit prejudiceofthis rule.EdithOsman stated her concern that the rule may imply thata party, unable to appear at a motion hearing, may berequired to participate by a telephonic hearing, thoughthereisoppositiondue toinheritprejudice,if onepartyrequests such a hearing.Mr.Musto responded thatMs.Osman's concernis notuniquetothis ruleinthatapartynotabletoappearat amotionhearingmust attempttochangethehearing time, whichisequallyapplicable to telephonic hearings. He furtherstated that the intent of the rule is not to forceanyonetoattend ahearingbytelephone.MichaelFogartymovedtoinsertthewords butmay notrequire after the word permit and before the word partyinsubsection(a) ofRule 2.071.

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Mr.Fogarty'smotionwasseconded.JosephSerotastated his opposition to the amendment. Heindicated thatthecourt systemis not asprovincialas itonce was, and the whole purpose of telephonic hearings is tofacilitateaccess by eliminating unnecessary time beingspentbyattorneysintraveling,inadditiontochargingclients for hours that could be spent productively. Hefurther stated that judges and attorneys should takeadvantageof thetechnological changes.Mr. Campbell moved to amend Mr.Fogarty'smotion be deletinguponthecourt'sownmotionor andafter permit insertbutnot require.Mr.Serotastatedhisoppositionto Mr. Campbell'smotioninthat the court should be allowed to compel a telephonichearing thus requiring each party to attend by telephone.

Mr. Campbell responded that this rule is here to allow apartytorequestatelephonic hearing.Mr.Campbell's motion failedforlackof asecond.Mr.Baenamovedasubstituteamendmenttodeletethewordsupon the court's own motion or and insert after permitthewords the requesting insubsection (a) ofRule 2.071,whichwas seconded.After consideration, Mr. Baena's substitute amendment wasapproved.Mr.Bosch moved to insert as the last sentence in subsection(a), If acourt uponits ownmotion schedulesatelephonichearing, then all parties shall participate by telephone.Mr.Bosch'smotionwasseconded.Mr.Fogartystated his opposition to the amendment becauseofsubstantive changes.After consideration, the amendment failed.Another motion was made to strike or witness in subsection(d)of Rule2.071,and was seconded.After consideration, the amendment to strike or witnesswasapproved.There being no further discussion or amendments toRule2.071 and upon motion, the rule as amended was approvedby a 36-1 vote.Rule2.130,ProcedureforAmending Rules--

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Mr. Musto reported that the rule amendment allows the rulescommittees to submit their proposed rule changes to theBoard of Governors no later than October 1 rather thanSeptember 1 or such other date as the board of governors mayset. Thereasonfor thechangeisthatthemembershipoftherules committees changes on July 1 of each year, often anew chair takes over on that date, and the committeesgenerally do not hold their first meeting of the Bar yearuntilSeptember.Mr. Musto advised that most of the committee felt thereneededto besome date established that could alsobechanged.Robert Sondak expressed the importance of this rule inadopting a staggered system of rule changes. He stated theludicrousy in trying to consider seven (7) sets of rulechanges at onetime.Mr.Campbell inquiredas towhethertheBoardofGovernorscouldunilaterally make proposals and substantive changes inrules that have not been considered by the rules committeesthemselves.JackHarkness responded that the court will not consider anyrule amendment without gettingtheadviceof theappropriaterules committees.President Hill, along with Mr. Sondak, expressed concernabout whetheritshouldbe theOctober1date.Mr. Harkness stated that he saw no problem with theOctober1date,andthatthecourt prefersto dorulechanges at one time, with all the rule changes beingeffectiveon the same date.Afterconsideration and upon motion, the Board concurred inthe amendments to Rule 2.130 by a 46-0 vote.Rule 2.160 Disqualification of Trial Judges --Mr. Musto stated that this is a new rule which attempts toembody the law that is set forth in the Florida SupremeCourt decision in Brownv.St.GeorgeIsland. The SupremeCourt determinedinthis case thatthegroundsfordisqualification of a trial judge are substantive innature,governedby thestatuteand not by therules. Hefurtheradvisedthat the court ruled that Florida Statute sections38.2 and 38.10 outlines the requirements fordisqualification.Mr.Musto stated that these statutes conflict with thecurrentcivilruleon disqualification. Heexplained thatthe statutes dictate that whenamotionismadeto

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disqualifya judge because of prejudice, those allegationspresentedto the first judge must be accepted as true, andthatjudge must ruleon thelegal sufficiencyof theallegation. Whenthecase goesto asuccessorjudgeandsimilarallegationsaremade,theallegationsdo nothavetobeacceptedastrueand thejudgecandeterminethetruthoftheallegations.Mr.Mustofurther explained thatthecivilrulesondisqualificationprohibitanyjudge from passingon thetruth, which the Supreme Court stated could possibly resultinrepeated motions of a similar nature being filed oncelegalsufficiency was determined.Mr. Musto further stated that this rule basicallyencompasses the requirements of the statute. He added thattherule does not affect the motions fordisqualificationthatdeal with specific statutory grounds, i.e., beingrelated to aparty.President Hill opened the floor for discussion.George Moss stated that the Civil Procedure Rules Committeeconsideredanamendmenttoaddressthe use ofdisqualification as a trial tactic. He further stated thatproposed Rule 2.160 was considered by the Civil ProcedureRulesCommittee, but by a 45-2 vote the rule was notapproved. Heindicated thathe was one of the two infavoroftheproposedrule.Mr.Serotaquestioned whether the first judge could rulethatan allegation was or was not legally sufficient,regardlessof thevalidityof theallegation.Mr. Musto responded that this rule does not change what thefirst judgedoesnow.MichaelMcNerney questioned whether the JudicialAdministration's rule could possibly contradict the CivilProcedure Rule on disqualification.EdwardBlumbergandSkip Campbell indicated thattheCivilProcedure Rules Committee will not be considering judicialdisqualifications intheir proposed rule amendments.Mr. Mossfurtheradded thattheCivilProcedureRulesCommittee voted down the concept of the proposed rule.Mr.Musto added that this rule does conflict with thecurrentcivilruleondisqualification. Hefurther statedthattheintentof theproposedruleis tomakeitapplicable to all judicial procedures.

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Afterconsideration, the Board concurred in the proposedrule by a 43-3 vote.Rule2.170, Standards of Conduct and Technology GoverningElectronic MediaandStill Photography CoverageofJudicialProceedings --Mr. Musto stated that the committee was approached by theFlorida SupremeCourt'sCommittee on Standards of ConductGoverningJudgestoadopt this rule outliningtherequirement for electronic media coverage of trials. TheSupreme Court felt it should be in the committee's ruleswhereitwillbemore accessibletoattorneys.SkipCampbell stated that because most practitioners do notread theRulesofJudicial AdministrationbutrathertheRulesofCivil Procedure,theBoard needstoconsiderwhether this rule should be placed elsewhere.Mr. Musto stated that this rule applies to what thestandards are for the media. He added that this rule wouldbesoughtbyattorneys undertheRulesofJudicialAdministration rather than the Standards of ConductGoverning Judges.Afterconsideration, the Board concurred in the proposedamendment toinclude Rule 2.170 undertheRulesofJudicialAdministration by a 46-0 vote.

B. Rule 2.055, SizeofPaper Mr. Musto stated that the proposed amendment to Rule2.055hadbeen beforetheBoardin May but wasopposedby a14-245vote. He further reported that this proposal is before theBoardforreconsideration.WilliamSizemoremoved to reconsider, which was seconded andapproved.Mr.Musto stated there have been variousconcerns expressedonthe recycling issue ranging from the quality of recycledpaper, to the enforcement of the rule. He added the mainissue in theBoard'sprevious consideration was themandatoryrequirement.Mr.Musto further stated that the recycling requirement hasbeenimposedby theFlorida Legislature, citizensandbusinesspeopleof theStateofFlorida,and the Barmembership should accept the same requirement as aprofession.PresidentHill introduced JohnCopelan,appearingonbehalfoftheBrowardCounty Commission, to request reconsiderationoftheBoard's positionon therecycling issue. Hestated

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thattheStateofFlorida,inChapter 403, FloridaStatutes,has mandated that local governments reduce the amount ofsolid waste deposited in solid waste disposal facilitiesby30% by the end of1994. Mr.Copelanfurther statedTheFlorida Bar has a good opportunity to be an environmentalleader in the business and professional community byeducatingthelegal professioninenvironmentalconcernsandchampioning the use of recycle paper in court pleadings. Headded hefeltthe Bar should take a leadership role in therecycling effort.Stuart Grossman distributed samples of recycled andnon-recycledoffice products while askingtheBoardmembersto discern the difference in quality.Mr.Grossman advised thereislittle difference,andstatedthe recycled productsareusually less expensive. Headdedthat this rule is subject to modification so why nottakeastep toward helpingthelegal professionandeveryoneelseinthestate.John Fisher stated thatit was acommendable goalbut notthe goal of the integrated Bar. He further stated that theintegrated Bar was not about personal, social or politicalagendas, regardlessof howproperorcorrectthoseagendasare. He added that this rule does notfallwithin the scopeofthe Rules Regulating The Florida Bar.Other concerns raisedbyvarious board members addressedtheenforceabilityofsucharule.After consideration and upon motion, the Board dissented inproposed Rule 2.055 by a 13-32 vote.Upon completion of the vote, it was moved, seconded andapprovedtopublishin TheFloridaBarNews informationaboutprice,quality and availability of recycled paper toencourage the Bar membership to recycle.

15. Juvenile Court Rules Committee ReportCommittee member Art Johnson reported on the four-year cycleamendmentstoFlorida RulesofJuvenile Procedure.Mr. Johnston stated that most of the rules changeswerenoncontroversial,andhavebeen amended to reflect genderneutral language.

Rule8.035,PetitionsforDelinquency --Therule amendment allows amendments outsidethe45-dayfilingrequirement inF.S.39.048(6)andRule8.035.Mr.Johnston advisedtheBoard that this rulewascontroversial amongthecommittee. Mr.Johnston stated that

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this change is proposed in response to M.F.v.State, 16 FLWS483(Fla.1991). TheFlorida Supreme Court opinion statedthatthestatemayamendatimely filed juveniledelinquencypetition after the forty-five (45) day filing period haselapsed if theamendment,which is made prior to thejuvenile court hearing,isintendedtomerelycorrectagoodfaithclerical error, and not to change the substantiveallegationsorreasons. Undernocircumstancesmay thestate amendthepetitionif theamendment prejudicesthejuvenile's right tofairdefense and receive afulland fairjuvenile court hearing.Several Board members raised concerns abouttheamendmentbeing too broad and lacking legal rights of notice.RobertSondakexpressed his concerns with respect to thesubstantivechanges made to Rule 8.255, GeneralProvisionsforHearings.Mr. Johnston stated that the rule amendments basicallychangethe requirements for in-camera testimony by childrenindependency cases.Because more information was needed regarding the split voteon some of the rule amendments, it was moved to deferconsiderationof therules amendments untilJanuary,and toappoint a special committee, consisting of John Thornton,Horace Smith, Ed Blumberg and Robert Sondak, to review therule amendmentsasproposedby theJuvenileCourtRulesCommittee. After consideration,themotionwasapprovedunanimously.

16. Young Lawyers Division ReportPresident Robert Palmerreportedon theactivitiesof theYoung Lawyers Division. Mr.Palmer reported that formerPresident RayFerrero,on behalf of the FloridaLawyersAssistance, Inc., requested$18,000toassistthesubstantanceabuse program.Mr.Palmer reported 1,300 registrants attendedthedivision's October Bridge-the-Gap program. Headded thatJusticeBarkettspoke on ethics in several locations, andagreed to speak again during the Spring program.Mr. Palmer reported thatYLDwill be establishing a trustfundfor the daughter of YLD board member LauraSchaeffer,who was recently killed in an automobile accident, andwelcomed any contributions for the fund.Mr.Palmer further reported on theYLD'sfirstProfessionalism ConvocationheldatStetsonLawSchool. Twohundred students attended the three (3) hour ethics and

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professionalism program,andYLDis planning to hold it atallofFlorida'slawschools.Healso stated thatYLDwillbeconveningonDecember12 toaddress the issue of post graduateinternships.Finally,Mr.Palmer reported thatthe YLD isdoing wellfinancially,andbecauseit hasexceededits$175,000reserve cap, the division will be contributing$14,165plusanadditional$10,000to theBar'sgeneral fund.President Hill and fellow board members thanked the YoungLawyers Divisionfortheircontribution.

17. ReportofSpecial CommitteeonEvaluationof DisciplinaryEnforcementChairThomas Ervinreported thattheSpecial CommitteeonEvaluation of Disciplinary Enforcement completed its initialreport, and is submitting it to the Board for review andapproval. Mr. Ervin stated the charge of the committee wasto reviewandcommenton theA.B.A. CommissiononEvaluationofDisciplinary Enforcement( McKayCommission ) Report.Mr.Ervin reported thatthecommittee will begin reviewingthe concept of an ethics school and other possiblediversionary programs.Mr.Ervin statedtheMcKay Commission Reportcontainstwenty-two (22) specific recommendations for disciplinaryenforcement,but that he would only be presenting for Boarddiscussionthefollowing recommendationsof thereport:1) Recommendation #3.2 Recommendsacentralintakeofficefor the receipt of all complaints aboutlawyers.The committee endorsed a central intake function, but onlyona regional basis.2) Recommendation#3.1(a)-3.1(g)--Recommends that theCourtestablishasystemofregulationof thelegalprofession that consists of component agencies, includingbutnotlimitedtolawyer discipline;aclient protectionfund;mandatory arbitration of fee disputes; voluntaryarbitration of lawyer malpractice claims and other disputes;mediation; lawyer practice assistance; and lawyer substanceabuse counseling.Ofthese component agencies, the committee did not endorsemandatory feearbitration, voluntary arbitrationoflawyermalpractice claims,ormediation.Mr. Ervin stated that the committee felt a client could notbemandatedtoparticipatein a feearbitration program,and

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Regular Minutes - Page 30November 7-8, 1991a voluntary arbitration system for legal malpractice claimscouldbe created under Florida law. Additionally, theseprograms would create more expenseand bureaucracy.3) Recommendation 9.6 Recommendedall jurisdictionsshould afford a right of review to complainants whosecomplaints are dismissed prior to afullhearing on themerits, consistent with the ABA MRLDE 11B(3) and 31.The committee felt that this recommendation would possiblycreate an intermediary appellate body, and that the Bar'ssystemofgrievance committees,referees,andboardreviewwaspreferable.4) Recommendation 10--Recommended procedures inlieuofdiscipline formattersinwhichalawyer's actionsconstitute minor misconduct, minor incompetence, or minorneglect.Thecommitteeendorsed,inconcept,thecreationof aprocedure to divert minor misconduct cases from the formaldisciplinary machinery. The committee felt with theincrease in complaints of minor misconduct by attorneys, adiversionary system should be established to handle suchcases.5) Recommendation 6--Recommended that the Court aloneshould appoint and for cause remove disciplinary counsel andshould provide sufficient authority forprosecutorialindependence and discretion.The committee endorsed an amendment to this recommendationwhich would allowtheCourttoappointadesignee (TheFlorida Bar)toexercise powers provided in6.1(a)-(f).6) Recommendation#7 Afully public disciplineprocessThe committee did not endorse this recommendation in thattheBar hasjust implementeda newdisciplinary system thatpermits acknowledgement of an initial investigation, butprohibits publicaccesstorecordsuntiltheinvestigationhas been completed. The committee felt that theBar'ssystem needs more time to determine its feasibility.7) Recommendation 5--Independenceof disciplinaryofficialsThe committee did not endorse sections5.1-5.3as written,andfelt that disciplinary andstaffcounsel should continueto have authority to bring to the board for review actionsofthe grievancecommittees. However, it did endorse theauthority ofstaff counseltoappealadecisionof areferee, evenif theBoard disagreed.

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8) Recommendation #17--Recommended random audit of trustaccounts.Thecommitteedid notendorse thisrecommendation, andfeltthat a random system would not locate the violators.Additionally,thecommittee feltarandomsystemwould findsome technical violations but at a great expense, and thatthemoney couldbebetter utilizedineducatingtheprofession on how to properly operateaccounts.9) Recommendation#18--Recommended thattheburdenofproofin feedisputesbe on theattorneyifthereis nowritten fee agreement.The committeefeltthat this recommendation was primarily acivilburdenofproof,andthus,did notendorseit.Mr. Ervin moved, which was seconded, the adoption of thereportof theSpecial CommitteeonEvaluationofDisciplinary Enforcementas anofficialresponseto theMcKay Commission recommendations for submission to theAmericanBarAssociation.Itwas requested that recommendation #6, Authority toAppeal, and Recommendation #5.3, Independence ofDisciplinary officials,beremovedfromthemotionfordiscussion.Afterconsideration, the proposed report, excludingrecommendations#6 and#5.3,were approved.John DeVault stated his opposition to recommendation#6.1(d)inallowing a disciplinary counsel to take an appeal of thereferee'srecommendation when thereis anopposingpositionby the Board. He stated that this would create a situationwhere bar counsel and the Board taking adverse positions.StaffCounsel John Berry responded that this recommendationwould allow more judicial control, and would give the Courtmore responsibility over discipline enforcement, which theMcKay Commissionfavors. Mr.Berry further stated thatitwould balance the judicial and legislative functions inthesematters.Theprimary concernofsome board memberswasthattherecommendation authorizing an appeal may potentiallyposition the Board adversely to Bar counsel. Afterconsiderationandupon motion, recommendation #6.1(d)and#5.3as endorsed by the committee, failed.Frederick Bosch stated his opposition to not endorsingrecommendation #6.2 which prohibits certain expartecommunication. He stated that ex parte communication would

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allow more politically based decisions on disciplinarymatters.Mr. Berry stated that the committee did not endorse thisrecommendation because discipline counsel are counsel to theboard and grievance committees and notprosecutors.EdwardBlumberginquired as to whyrespondent'scounsel isnotpermittedto sit in ondeliberationsofcommitteesandthe board but bar counsel is. Mr. Ervin advised that theBoardis notadjudicativebutprosecutorialinfunction.Mr. Blumberg suggested a study be conducted on implementinga procedure wherein a respondent orrespondent'scounselcouldprovide a response to bar counsel's summary of thegrievancecase. Alternatively, Mr.Blumbergsuggestedthepossibility of allowing the respondent orrespondent'scounselto be present during the Disciplinary ReviewCommittee meeting.Mr.Bosch madeamotion, whichwasseconded,todisapprovethespecialcommittee'srecommendationandendorserecommendation #6.2of theMcKay Commissionreport.AlanDimondstatedthat the Bar is simply an arm of theprosecutor,and dueprocess comes beforetheFlorida SupremeCourtofFlorida.Afterconsideration,themotiontodisapprovethecommittee's recommendation on #6.2, failed.PresidentHillstated that Mr. Blumberg's suggestion toimplementa procedure to expand the participation of arespondent'scounsel in the disciplinarymeetings willbereferred to the Disciplinary Procedure Committee for furtherconsideration.The amended report of the Bar's Special Committee will beforwarded to the McKay Commission and the ABA for theirconsideration.

18. ReconsiderationofBoard's ResolutiononRule 46-l(d)(l)ofU.S. CourtofAppeals,llthCircuitThe Board, at its September meeting, approvedreconsiderationof itsresolutioninoppositiontoRule46-l(d)(l) of theU.S. CourtofAppeals,llthCircuit whichwas passed at its July meeting.GeorgeTragos,President of the Florida Association ofCriminalDefenseLawyers,and a member of the Federal CourtPractice CommitteeandCriminalLawSection, appearedonbehalf of those respective entities to present theiropposition toRule46-l(d)(l) requiring trial counsel to

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disclose payments madetoretain such counsel priortobeingallowed towithdrawand the defendant toproceedon appealinforma pauperis. Headded thathispresencewas not inany wayendorsingtheBoard'spositioninreconsideringitsoriginal resolution.Mr.Tragos advised that this issueis aconcernof allFloridacriminal defenselawyers,and that this rule bringsintoquestiontheroleof thecourtas an arm of theprosecution. He further added that the rule could encourageaguilty pleatoavoid being forcedtohandletheappeal.TomMacDonald, memberof the llthCircuitLawyers'AdvisoryCommittee, advised that llthCircuit Chief Judge GeraldTjoflatwould convene a circuit-wide hearing on this issueat therequestof theBoard,andindicated thataforumtoaddress Rule 46-l(d)(l) would be the proper way to go toamend it.Mr.MacDonald further advised thatastudyisbeingconducted on how many attorneys have been compelled againsttheir willtohandleanappeal.JohnThornton advised thata newresolutionhadbeen draftedwhich includes the concerns of theBoard,directs thoseconcernsto theU.S.CourtofAppealsfor theEleventhCircuit, rather thanthedistrict courts,andrequestsapublichearing be convened to address these issues.After consideration, the Board unanimously approved theresolution requestingapublic hearingonRule46-1(d)(l).Acopyof theresolutionisattached heretoandmadeapartoftheseminutes.Several Board members expressed a need for the Board toadoptaresolutioninoppositiontorule.AmotionwasmadeandsecondedtoreadopttheoriginalresolutioninoppositiontoRule46-1(d)(l).Mr. MacDonald advised thattheresolution shouldbedirectedto theEleventh CircuitofAppealsand not thedistrictcourts.Accordingly,amotionwasmadeand seconded toamendthefirst andfifth paragraphsof theresolutionasfollows:

FirstParagraphWhereas,the UnitedStatesCourtof Appeals for theEleventhCircuitisconsideringanamendmenttotheirlocalrulesFifthParagraph

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RegularMinutes-Page34November7-8, 1991

NOWTHEREFOREBE ITRESOLVED thatTheFloridaBarBoardofGovernors recommends to the UnitedStates CourtofAppeals for theEleventh CircuitAfterconsideration,the resolution inoppositionto Rule46-l(d)(l)asamendedwasapproved.Acopyof theresolutionisattached heretoandmadeapartofthese minutes.

19. Workers'CompensationRulesCommittee ReportJudge Douglas Brown introduced committee member NancyCaveywhoreportedon therule amendmentsasproposedby theWorkers' Compensation Rules Committee.Ms.Cavey reported that rule amendments 4.300 - 4.305 weredrafted inresponsetoFlorida Statute445whichhasintroducedMediation to workers' compensation. Ms.Caveyaddedthat mediationhasbecomeavery important partofhandlingtheworkers'compensation practicebecauseof itsvolume.Ms. Cavey advised that a drafting subcommittee wasappointedinJune 1991todraft these rules,and inOctober,theruleswere presentedandapprovedby thecommittee.Ms.Cavey reported that these rules were modeled aftertheRules of Civil Procedure and theBankruptcyRules ofMediation, andadded that theyarebasicallynoncontroversial.Afterconsiderationandupon motion,theBoardby a31-0vote, concurredin therule amendmentsasproposedby theWorkers'Compensation Rules Committee.

20. Judicial Nominating Procedures Committee ReportBoardLiaison Michael Easley presented,onbehalfof theJudicial NominatingProceduresCommittee,areportonproposed judicial nominating commission reforms.Mr. Easley reported thattheLegislation Committeedid notapprove the committee'srequesttosupporttheproposedamendmentthat would only allowtheGovernortoappointanattorney to a judicial nominating commission with ten(10)ormore yearsofexperience,orthatisBoard certified,butapprovedthecommittee'samendmenttoChapter43,FloridaStatutes, that would providefor theremovalof anerrantcommissioner. Theamendment would provideameansforremoval of a member of a judicial nominating commission thatisnotproperly performinginaccordance withthestatutes,in fulfillingatermofgood behavior. Inconjunction withthis amendment, Paul Hill will be drafting uniform rules

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consistent with the ethics law that will allow for theestablishmentof acommittee which will receive complaintsabouterrantcommissionersandmakerecommendationsregarding discipline and/or removal to the Governor'soffice. The JNPC committee recommended Board approval ofthisposition.TheBoard's votetooppose public deliberationof ajudicialnominating commission and its approval to amend Chapter 43,FloridaStatutes, is reported herein under the LegislationReport, item 5.M.Dale Sanders inquired as to what guidelines were used toconstitute goodor badbehavior.Mr.Easley advised that a Florida ethics statute promulgatesethicsingovernment,andsetsup avehicletoreceivecomplaints about other individualsingovernment. Thisstatute will assist in the drafting of thisamendment'suniform rule.The committeewillbediscussingwhether therecan be alesser discipline than removal; however,J.HardinPeterson,theGovernor'scounsel, supports the committee and wouldrecommend a purview that would allow reprimands as well asremoval.Afterconsideration and upon motion, the Board approved theChapter 43 amendment as proposed by the Judicial NominatingProcedures Committee.

21. Traffic Court Rules Committee ReportJudge KarlGrube,on behalf of Chair Dominic Baccarella,reported on the Traffic Court Rules Committee's proposedfour-year cycle rule amendments, stating that most of thechangeswerenoncontroversialandinvolvededitorial changesmade pursuant to Florida Supreme Court request.Judge Grube advised that several rule amendments recommendedbythecommittee needed reviewby theBoard:Rule6.156,Review Committee--Therule amendment changesthecomposition,termandresponsibilitiesof theTraffic Court Review Committeetoallow for greater participation.Judge Grube reported that this rule, if approved by theBoard, will be submitted to the Florida Supreme Court on anemergency petition, per theCourt'srequest.Rule6.325, Speedy Trial-InfractionsOnly

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This new rule establishes a speedy trial rule for trafficinfractions and provides for automatic dismissal upon motionafter the expiration of 180days.Donald Gifford expressed concerned about the close vote(10-6)by therulescommittee, andwantedtoknowwhatthecommittee'sconcerns were on this rule.JudgeGruberesponded that the civil traffic infractions arenotgovernedby aspeedytrial ruleand forthatreasontheymaylinger on foryears,without a definitive action beingtaken. It was the opinion of the rules committee that civilinfractions be governed by a speedy trial rule. He addedthat this would allowthealleged defendertheopportunitytoinvoketherightto bebroughttotrial within180daysofthedatethealleged infraction occurred.Afterconsideration and open motion, the Board, by a 33-0vote,concurredin theamendmentsasproposedby theTrafficCourt Rules Committee.

CivilProcedure Rules Committee ReportChairCliffSomers reportedon the CivilProcedure RulesCommittee'sproposed four-year cycle rule amendments,statingthat mostof therule amendments involved editorialchanges made pursuant to Florida Supreme Court request.Chair SomersandSkip Campbell, chairof theBoard'sscreening committee, further advised that several ruleamendments recommended by the committee involved substantivechanges which needed review by the Board:Rule1.070(j),ServiceByMail--The rule amendment established a service by mail provisionsimilar to the Federal Rule. The rule provides for servicebymail and a return of an acknowledgement as the effectivedateofservice. Ajudgmentofdefaultcan betakenasprovidedin Rule1.902(c).SkipCampbell stated the screening committee felt the ruledidnot clearly address the time frame in which to returntheacknowledgementafterthesummonswasreceived.Another concern raised was that the rule could be used as adelay tactic with possible abuse by the defendant; however,itwasalso indicatedtherulewas notmandatory.Mr.Campbell further added the committee did not have amajor opposition to this rule, with President Hill addingthattherulewas anattempttomakethecourtsmoreaccessible on a less expensive basis.

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Itwasmovedandsecondedto addafterthefirst sentenceof(j)thefollowing amendment:Service shall be deemed perfected on the date theacknowledgementofservice,asherein prescribed,ismailedby the party serviced, which date shall be the date ofacknowledgement indicatedon theform.After consideration, it was approved to include thisamendmenttoRule1.070(j).WayneHelsbyinquiredas towhether governmental agencieswouldbeexempt from thisrule,withMr.Campbelland Mr.Somersresponding that this rule doesnotexemptanyone.GregoryPresnelladded that the rule did not addressgovernmentalagencies.After consideration and upon motion, Rule1.070(j)asamended was approved by a31-3vote.Rule1.080(b),Service of Pleadings and Papers --This rule amendment allows service to be made by facsimile.When service is made by facsimile or fax, a second copymustbeservedbyanother method permittedbythis ruletoensure that a legible copy is received.Mr. Campbell stated several concerns of the committee withrespect to subdivision (b) of the rule which included thepermissibility of facsimile as a method of service, and thetime period in which thehardcopyis to be sent.Mr. Somers indicated that Rule1.080(b)defines service andRule1.080(b)(5)allowsforanothermethodofservice. Healso added that the date in which the facsimile istransmitted is the date of service, and the rule alsoaddresses the issue of when the hardcopy of the facsimile isrequired to be sent. Mr. Somers further stated that theproposed change addresses the use of facsimiles.ScottBaenastated his concern that the rule should indicatewhen a facsimile is completed.Amotion was made which was seconded and approved, to insertin1.080(b)(5)after the word delivery , thewords or,inthe case of a facsimile, upon completion oftransmission .Otherconcernsraised by board members included the abuse ofusing facsimiles; receiving errant facsimiles; and definingdelivery by when the facsimile is received and nottransmitted.

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Amotionwasmade whichwassecondedandapproved,todeletefromRule 1.080(b)(5) transmittingit byfacsimile andinsertthewords, receiptbytransmissionoffacsimile.SomeBoard members expressed their supportforthis ruleinthat itspeedsuplitigationandverifies facsimiletransmission.Skip Campbell stated language should also be included thatrequireshardcopiesoffacsimilesbesenton thesame day.Amotion, which was seconded and approved, was made toinsertin Rule 1.080(b)(5)after the word served thewords on thesame day .Afterconsiderationanduponmotion,Rule 1.080asamendedby theBoardwasapprovedby a25-9 vote.Rule1.200(c),NoticeThis rule amendment removesthemandatory languageandmakesthenotice requirement for a case management conference thesameasthatfor ahearingon amotion.Mr.Campbell stated the committee's concern with theamendment was theinclusionof theterm reasonable notice,which could possibly create ambiguity.Mr.Somersstatedthecommittee wantedtoleave somediscretion for theCourt,aswellasaddress varyingrequirements among circuits. He also stated that the termreasonable isclearly definedincase law.VictorHalbachobjectedto therule changeinthat thereisnoclear definitionofreasonable notice,and it isdeterminedon acasebycase basis. Healso stated thattheruleshouldbeconsistent with Rule1.070(j),ServicebyMail,and1.080, ServiceofPleadingsandPapers, whichcontain timerestrictions.Mr.Campbell recommended amendingtheproposed ruleas itwas orginallystated which requiredatwenty(20)daynoticeforcase management conferences.After consideration andupon motiontheBoarddissentedinproposed Rule1.200(c)by a6-26 vote.Rule1.310(b)(7),Depositions Upon Oral Examination --Mr.Campbell indicated thattheCivil Procedure RulesCommitteedid notsuggestanyrule changesforsubdivision(7) ofRule 1.310(b); however,it wasrecommendedby thescreening committeetoallow telephone depositionsto betaken without requestofCourt,but if apartysodesires.

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Itwasdetermined thattheBoard doesnothavetheauthoritytosubstantivelyamendanyrules thattherules committeeshave not alreadypre-approved,as outlined in 2.130 of theRules ofJudicial Administration. Accordingly, PresidentHillruledtheamendmentout oforder.Rule1.420(f),EffectonLis Pendens Therule amendment providesforautomatic dissolutionoflispendens on claims that are settled even though the entireaction may not have been dismissed.WilliamSpencer statedthecommitteehadsome questionsasto whena lispendens became dismissedofrecord,andwhathappens during pendencyof anappeal when thereis not astate ofsupersidiousand rights of third party withoutnotice.Amotionwasmadeby Mr.Dimondandsecondedtoinsert aftertheword dissolved thewords when that dismissal becomesfinalunless such dismissalisstayed pending appeal .Afterconsideration,Mr. Dimond'samendmenttoRule1.420(f)failed. Therulewaslater approvedaspartof theconsentcalendar.Rule1.490(0),Reference The rule amendment requires that consent for reference be inwriting.Skip Campbell stated that some concern was raisedwithrespect to the term writtenconsent . Mr.Somersaddedthattheintentionofthis amendmentis toallowtheavailabilityof this proceeding through a written consentonly.Therebeingnoobjection fromtheBoard, President Hillstated thatthevoteforthis rule wouldbeincluded withthe other noncontroversial consent calendar amendments oftheCivil RulesofProcedures.Rule1.510(c),Motion and Proceedings Thereon --Therule amendmentrequirestimely serviceofopposingaffidavits,whetherbymailor bydelivery, priorto the dayofthehearingon amotionforsummary judgment.Skip Campbell stated several concerns raised by thecommittee which included whether serviceofaffidavitscanbeexecutedbyfacsimile,and if so,whether this wouldcreateadiscrepancyoftime periodsinthis rule with Rule1.080. Mr. Campbell also stated that the committeesuggested changing the time period to serve the affidavit

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fromtwenty(20) daystotwenty-five (25) days priorto thehearing, andserviceforopposing affidavitsfrom five(5)daysto ten(10)days.Mr.Somersadvised that the term delivery includes the useoffacsimiles,asdefinedinRule1.080(b)(5).There was also a discussion of adding business before theword days, but no amendment was approved.MichaelFogarty stated that this ruleisconsistent withwhat the courts are requiring, and that the Board should notbeproposing substantive changes without considerationofthe CivilProcedureRules Committee.After considerable discussionandupon motion,theBoard,bya22-13 vote, concurredin theamendmentsasproposedby theCivilProcedureRules Committee.Rule1.540(b),Mistakes; Inadvertence; ExcusableNeglect;Newly Discovered Evidence; Fraud, etc. --Therule amendment removedthe oneyear limitationfor amotion basedonfraud.Mr.Campbell advised thattheFamilyLawSection would liketohavetherule changedsothatajudgmentcan be setasideforfraudat anytime; howeverhefelt that there shouldbesome finality.Mr.Somers stated that before this rulewaschanged,theonlyway onecouldget ajudgmentwas inequityforextrinsic fraud after it became final. He furtherstatedtherule change allowed a motion to be made one year afterthejudgmentforextrinsicorintrinsic fraud. Healsostated this rule amendment will grant the courts power torevisitafinal judgmentforextrinsicorintrinsic fraudmorethan one year later.Mr.Somers then posed the question as to what was moreimportant, finality or revisitation of a judgment based onfraud. HeadvisedtheBoard that this issueisaddressedinSinclairvs.Joe Hanon, a 1984 Florida Supreme Court case.Thiscase decided thattheoverwhelmingandmost importantconsiderationisfinality.There beingnoobjection,thevoteforthis rule amendmentwasincluded withtheother noncontroversial consentcalendar amendmentsof theCivilRulesof Procedure.Rules1.700-1.830, MediationandArbitration --The proposed rule amendment deletes and transfers Rules1.700 through Rule1.830,pertaining to mediation and

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arbitration,to the Florida Rules of JudicialAdministration.Mr.Campbell statedthescreening committee felt thatbecause most practitionersdo notreadtheRulesofJudicialAdministration, the rules on mediation and arbitrationshould remainin theRulesofCivil Procedure. Hefurtherstated that the Rules of Judicial Administration Committeeisalso opposed to transferring these rules.Mr.Somersresponded that many rules relating to mediationcouldpossibly apply to any area of law; thus, the rulesshouldnotjustbeincludedin theRulesofCivil Procedure.Headded thatbyplacing themin theRulesofJudicialAdministration, it will apply across the board.The Board voted 2-30 to dissent in this recommendedtransfer.Rule1.611, MaritalandFamilyLaw Dale Sanders stated the rule amendment requires anindividualto submit a financial affidavit along with theinitialpetition that one files when seeking relief. Headvisedthat submissionof theaffidavitwas notrequiredprior to this amendment until an application had been madefora hearing. He further added that because mostindividuals are notpreparedtosubmitafinancial affidavitat thetimeof theinitial petition, this amendment wouldresultinpeople complying withtherulebysubmittinganinsufficientaffidavit which would havenomeaningfulbenefit.Mr.Somers responded that the Family Law Subcommittee of theCivilProcedure Rules Committee proposedandstronglyendorsedtheamendment.Amotion was made and seconded to amend the proposed newlanguageinRule1.611(a)byadding aftertheword servedinthesecond sentenceof the newlanguagethefollowing:The financial affidavit shall be filed at the timeapplicationismadeforhearingon thefinancial issuesrequested, not at the time when petition for dissolutionsareinvolved.After consideration, the amendment toRule1.611 wasapprovedby a23-8vote.Rule1.902(c),FormForServicebyMail Mr. Campbell stated the screening committee was concernedwith whether the acknowledgement of a summons should be inEnglish, SpanishandCreole,as is the summons.

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RULERULERULERULERULERULERULE

1111111

.070,.200,.310,

.400,.420,.431,.491,

Amotion was made, which was seconded and approved, totranslate the acknowledgementforminto Creole and Spanish,andadd it toRule1.902(c).After consideration and upon motion, the Board,bya 26-8vote, approved Rule1.902(c)asamended.The Board suggested a typographical correction in question25of theStandardInterrogatoriesForm3,MedicalMalpractice - Interrogatories to Plaintiff (page 214) -change car to care .Upon motion, the Board, by a 35-0 vote, concurred in allother substantive amendments, not voted onherebefore,asproposedby theCivil Procedure RulesCommittee:

PROCESSPRETRIALPROCEDUREDEPOSITIONS UPON ORAL EXAMINATIONPUBLICATION OF DEPOSITION (Deleted)DISMISSALOFACTIONSTRIALJURYCHILD SUPPORT ENFORCEMENT PURSUANTTOTITLEIV-DOFTHESOCIAL SECURITYACT(42USC 651ET SEQ.)MASTERSSUMMARYJUDGMENTMOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTSOFJUDGMENTRELIEF FROMJUDGMENT,DECREES,ORORDERSEXTRAORDINARY REMEDIESSUMMONSGARNISHMENTJURISDICTIONAL STATEMENT - LAW; ACTIONS FORDAMAGES (Deleted)RULE1.960,BOND GENERAL FORM

23. Florida Probate Rules Committee ReportCochair Larry Cooper reported on the Florida Probate RulesCommittee's proposed four-year cycle amendments, statingthattherule amendments largely involved editorial changesmade pursuant to Florida Supreme Court request.Mr.Cooper advised that several rule amendmentsrecommendedby the committee needed review by the Board:Rule5.240,NoticeofAdministrationThe rule amendment emphasizes the need for personalrepresentatives todetermineallknownorreasonablyascertainablecreditors.

RULERULERULERULERULERULERULERULE

1.1.1.1.1.1.1.1.

490,510,530,540,630,902,907,931,

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Mr.Cooper stated that Rule 5.240, previously eliminated,was reinstated to notify personal representatives and theirattorneys of their responsibility to notify creditors thatthey must file a claim.Rule5.346, FiduciaryAccounting--Therule amendment requires compliance with the UniformFiduciary Accounting principles and Model Formats foraccountingof alltransactions occurringon orafterJanuary 1, 1994.Rule5.496, FormandMannerofObjectingto Claim--The new rule represents an implementation of the procedurefounds in section 733.705, Florida Statutes, and adds arequirementtofurnish noticeof thetime limitationinwhich an independent action or declaratory action must befiled afterobjectionto aclaim.Rule5.636, Settlement of Minors'ClaimsThe new rule sets forth a procedure in handling thesettlementof minors'claims. Therule states thatthetotal settlement ofminors'claims is not limited to theamounts received onlyby theminor,butincludesallsettlement payments or proceeds by all parties to the claimoraction.Edward Blumberg questioned whetheraprobate rulecan beappropriately utilized in a general jurisdiction division ofthe case.President Hill added that the general jurisdiction judgewould have jurisdiction overthesubjectand not theprobatejudge. President Hill further stated that if this rule goesforward it would apply to settlements of minors,whetherornot it is aprobate case.JackHarknessrecommended, with President Hill concurring,addressingtheFlorida Supreme Courtincomment form aboutthis issue.Mr. Cooper advised that the Real Property, Probate and TrustLaw Section had not reviewed the proposed rule amendments,andrequested Board approval subject to review by thesection'sExecutive Council.President Hill stated that any changes made by the ExecutiveCouncil would have to be considered by the Board beforesubmission to the Florida Supreme Court.

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Afterconsideration and upon motion, the Board by a 29-0vote, concurredin theamendmentsasproposedby theFloridaProbate Rules Committee.24. ReportofSpecial CommitteeonPresidential Election

ProceduresChair RayFerreropresentedtherecommendationsforamendments to Rules Regulating The Florida Bar, 2-4.4,QualificationsforOffice,and2-4.5, NominationsforPresident-elect, and Standing Board Policy(SBP)1.25,Election ofPresident-elect. The primary concern of thecommittee when drafting the amendments was reducing the costofcampaigning bothindollaramountsandindirectpersonnelcosts.Chair Ferrero reported thatSBP1.25 defines policiesandstandards of conduct for campaigns for election to theoffice ofpresident-elect.Afterconsideration,theBoard approvedthedefinitionaltermsasoutlinedin SBP1.25.SBP1.25(a),Election Committee, and SBP1.25(b),Restrictions on Campaign Conduct--SBP1.25(a)creates the Elections Committee to observe theconductofcandidatesforelectionto theofficeofpresident-elect,and SBP1.25(b)placesspecificlimitationsoncampaign conduct.Afterconsideration, the rule amendments as recommended wereapproved.SBP1.25(c),Mailing LabelsandListsofMembers--Chair Ferrero advised that the present rules allowthreemailinglists, with three (3) bar-wide mailings costing$17,000 to $25,000 per mailing. With the committee'srecommended changes, onlyonemailing list wouldbeavailablefor candidates.Mr. Ferrero further advised that the intent of the committeeonthis policy was that a candidate, afterqualification,would be restricted to only one mailing list, and would alsoprohibitanyone else from purchasingthelabelsfor thecandidate.Concerns were raised abouttherestrictionsonwhenthemailinglabelscan bepurchasedinthatitwould impedeanindividualfromgettingtherequired votesfor anomination.

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Frederick Bosch made a motion, which was seconded andapproved by a17-12 vote,todeletetheword nominationorfromSBP1.25(c)(1).AlanDimond advised the Board that this amendment wouldgreatly increase the cost of a campaign.After a motion was made and seconded toreconsider,Mr.Bosch's amendment failed.After considerationandupon motion,SBP1.25(c)wasapproved as recommended by the committee.SBP1.25(d),Bar Aid to Candidates--Therule amendment would offer aid to all candidates in theform of advertisements in the BarNews,inserts withballots, and local bar and section campaign assistance.

PatriciaSeitzstated thatthemost effective meansofcampaign advertising is direct mail or personalappearances.Sheadded thattoincrease member participationincampaigns, paid postage should be included in thereturnballot. Ms.Seitz madeamotion, whichwasseconded,toinclude a prepaid envelope for return of the ballot.Concerns wereraised with respecttobudgetary impacts withthis proposed amendment. Accordingly,the motion failed bya17-19 vote.SBP1.25(e),Campaign Contributions--Therule amendment does not limit campaign

bog minutes nov 7-8, 1991

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