November 1, 2004 Notices NoticesCourt amends jury instructions The Florida Supreme Court approved amendments to civil jury instruction 1.3, regarding when a judge reads stipulated testimony, stipulations, or admissions to a jury. The changes were proposed by the court’s Committee on Standard Jury Instructions in Civil Cases (in supplemental report No. 04-01), were advertised in the Bar News, but received no comments. In its October 14 order in case no. SC04-580, the court wrote in its per curiam opinion: “Upon consideration of the committee’s report, we hereby authorize the publication and use of the revised instruction as set forth in the appendix attached to this opinion. In doing so, we express no opinion on the correctness of the instruction and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of this instruction. “We further caution all interested parties that the notes and comments associated with the instruction reflect only the opinion of the committee, and are not necessarily indicative of the view of this court as to their correctness or applicability.”Court rejects new traffic rule The Florida Supreme Court declined to adopt a newly proposed traffic court rule 6.292 that would clarify the effect of a withheld adjudication in the criminal offense context. The court declined the proposed rule from The Florida Bar Traffic Court Rules Committee, because it is in conflict with the court’s decision in Raulerson v. State, 763 So. 2d 285 (Fla. 2000). The court did adopt the remaining amendments in case no. SC04-101 that make minor technical changes to rules 6.100 (Traffic Violations Bureau), 6.190 (Procedure on Failure to Appear; Warrant; Notice), 6.200 (Pleas and Affidavits of Defense); 6.500 (Pronouncement and Entry of Penalty; Penalizing Official); and 6.580 (Completion of Driver School; Conditions.) The rules committee’s proposals were unanimously approved by the Bar’s Board of Governors and were published for comment in the Bar News. The one comment received alleges that the entire body of Traffic Court Rules do not comply with the Americans with Disabilities Act. “As this comment is beyond the scope of the current proposed amendments, we direct the Clerk of Court to refer this comment to the rules committee for its consideration, pursuant to Florida Rule of Judicial Administration 2.130(b)(2),” the per curiam October 7 opinion said. < p>Bankruptcy judge needed in Tampa The U.S. Court of Appeals for the 11th Circuit seeks applications from all highly qualified persons for a 14-year appointment as U.S. bankruptcy judge for the Middle District of Florida at Tampa. The salary is $145,452 annually. Further information and an application are available on the court’s Web site at www.ca11.uscourts.gov/humanresources, or may be obtained from the Office of the Circuit Executive at 56 Forsyth Street, NW, Atlanta, GA 30303, phone (404) 335-6535, and from the clerk of the U.S. Court of Appeals for the 11th Circuit and the clerks of the district and bankruptcy courts for the Middle District of Florida. Applications for the position must be submitted personally by potential nominees and must be received no later than November 10. Weitzman seeks reinstatement Pursuant to Rule 3-7.10, Jack L. Weitzman, has petitioned the Florida Supreme Court for Bar reinstatement. On April 12, 2001, Weitzman was suspended for three years effective nunc pro tunc November 14, 2000, due to a felony conviction. On April 8, 2004, Weitzman also received a six month suspension effective nunc pro tunc March 31, 2002, for contempt violations. Any persons having knowledge bearing upon Weitzman’s fitness or qualifications to resume the practice of law should contact William Mulligan, Bar Counsel, The Florida Bar, Suite M-100, 444 Brickell Avenue, Miami 33131, telephone (305) 377-4445. Court amends how e-documents are filed Supreme Court of Florida November 1, 2004 Notices No. AOSCO4-84 IN RE: MANDATORY SUBMISSION OF ELECTRONIC COPIES OF DOCUMENTS ADMINISTRATIVE ORDER Pursuant to this Court’s Administrative Orders dated February 5, 1999, and March 13, 2002, parties in the Florida Supreme Court are required, in addition to the paper copy that is filed, to send an electronic copy of the following to the Court:• all briefs on the merits• all briefs on jurisdiction• all pleadings filed in death warrant cases• all pleadings filed in Judicial Qualifications Commission cases• all referee reports in Florida Bar disciplinary cases• all hearing transcripts in death penalty cases• all petitions requesting rule amendments (including the proposed rules) — this includes Rules Reg. the Florida Bar, Bar Admission Rules, Code of Judicial Conduct, Jury Instructions, and all Rules of Procedure.• all petitions requesting procedural rule form amendments (including the proposed forms)• all comments in rules cases• all petitions and responses thereto in which the Court determines it will hold oral argument, and• any other pleadings which the Court may designate. Any case may be so designated because there is significant media or public interest in obtaining briefs, pleadings, petitions, or other documents generated by the case, and parties and counsel in the case shall be notified of this by letter from the Clerk.Currently the electronic copy is provided by sending the Court a diskette which contains the electronic version of the document. The Court has determined it would be more efficient for the Court and the public to require the electronic version of these pleadings be sent to the Court via e-mail.Effective October 1, 2004, in addition to filing paper copies all briefs on the merits, all briefs on jurisdiction, all pleadings filed in Judicial Qualifications Commission cases, all referee reports in Florida Bar disciplinary cases, all transcripts in death penalty cases, all petitions requesting rule amendments (including the proposed rules), all petitions requesting procedural rule form amendments (including the proposed forms), all comments in rules cases, all petitions and responses thereto in which the Court determines it will hold oral argument, and any other pleadings which the Court may designate, shall be submitted electronically either via e-mail, as explained below, or by diskette but not both. If by diskette, it must be in accordance with In Re: Mandatory Submission of Electronic Copies of Documents on Computer Diskette dated November 13, 2002. Effective April 1, 2005, all submissions must be via e-mail. Diskettes will no longer be accepted after April 1, 2005.Electronic submissions via e-mail shall be attached to an e-mail sent to the following e-mail address: [email protected] This e-mail address is for this purpose oniy. The Clerk’s Office will not respond to e-mails sent to this address. Pleadings sent to this address will not be considered a filing. The subject line of the e-mail shall contain the Supreme Court case number, if one has been assigned, or the style of the case, if a case number has not been assigned, in substantially the following format: “Filing in SCOO-0” or “Filing in Doe v. Roe.” The document must be e-mailed the same day the original paper copy of the document is filed or served. Effective October 1, 2004, electronic submissions may be submitted in either Microsoft Word format or WordPerfect. Effective January 1, 2005, all electronic submissions in rules cases must be in Microsoft Word. For all other cases, effective April 1, 2005, submissions must be in Microsoft Word.Litigants and counsel should be aware that electronic versions submitted in WordPerfect will be converted by the Court to Microsoft Word and there is no guarantee that the document will be converted without error.All electronic submissions in death warrant cases shall be sent to a separate e-mail address which will be provided to counsel by the Clerks office when a death warrant is signed.The official recorded filing date for these pleadings shall remain the date the paper copies are received by the Clerks Office.Any documents required by the order to be submitted in electronic form may be rejected for filing by the Clerk of Court if the electronic version does not conform to the requirements of this order, the rules of court or match the paper copy version.The Clerk of the Court is directed to send copies of this order to The Florida Bar News for publication in at least two issues of The Florida Bar News.DONE AND ORDERED at Tallahassee, Florida, on September 13, 2004. Legislative Action Under Rule 2-9.3 (b) – (e), Rules Regulating The Florida Bar, active members of the Bar may file a specific objection to any legislative position adopted by the Board of Governors.Objections properly filed within 45 days of this News issue will be considered for a refund of that portion of mandatory membership fees applicable to the contested legislative position, within an additional 45 days. The Bar’s governing board has the option to grant the appropriate refund to an objector or to refer the matter to arbitration.The arbitration process will determine solely whether the legislative position is within those acceptable activities for which compulsory membership fees may be used under applicable constitutional law. The objecting member’s fees allocable to the contested legislative position will be escrowed promptly upon receipt of the objection, and any refund will bear legal interest.Any active member may provide written notice to the executive director of The Florida Bar, setting forth an objection to a particular legislative position. Failure to object within 45 days of this News issue will constitute a waiver of any right to object to a particular legislative position within this notice.The policy requires the Bar to notice such legislative positions in the next available News issue following their adoption.Pursuant to Standing Board Policy 9.20, on October 15 the Board of Governors approved the following position of The Florida Bar:1. Opposes the proposed “Medical Liability Claimant’s Compensation Amendment” to the Florida Constitution because it restricts the right of access to courts and impairs the obligation of contract. Proposed guidelines for taxation of costs The Florida Bar Civil Procedure Rules Committee has filed with the Florida Supreme Court a report proposing new Statewide Uniform Guidelines for Taxation of Costs in Civil Actions to replace the existing guidelines. The report was filed in response to the court’s request that the committee gather input and information on improving the guidelines and file a comprehensive report of its findings and conclusions, together with any proposed guidelines. See Amendments to Uniform Guidelines for Taxation of Costs, 794 So. 2d 1247 (Fla. 2001). The court invites all interested persons to comment on the proposed guidelines, which are reproduced in full below, as well as online at www.flcourts.org/sct/sctdocs/proposed.html. The committee’s full report is also published online. An original and nine copies of all comments must be filed with the court on or before December 1, with a certificate of service verifying that a copy has been served on the committee chair, Robert N. Clarke, Jr., Ausley & McMullen, P.A., P.O. Box 391, Tallahassee 32302-0391, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument which may be scheduled in this case. Comments must be filed in paper format and an electronic copy must be provided in accordance with AO04-84. See Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, dated September 13, 2004. IN THE SUPREME COURT OF FLORIDA AMENDMENTS TO UNIFORM GUIDELINES FOR TAXATION OF COSTS, CASE NO. SC96726. STATEWIDE UNIFORM GUIDELINES FOR TAXATION OF COSTS IN CIVIL ACTIONS I. Litigation Costs Which Shall Be Taxed. A. Depositions 1. The original and one copy of the deposition and court reporter’s per diem for all depositions, unless the objecting party shows it was not reasonably necessary. 2. The original and/or one copy of the video deposition and the cost of the services of a technician for video depositions used at trial, unless the objecting party shows it was not reasonably necessary. 3. Telephone toll and video conferencing charges for the conduct of telephone and video depositions unless the objecting party demonstrates that the depositions were not reasonably necessary. B. Documents and Exhibits 1. The costs of copies of documents admitted (in lieu of “actually cited”) with the court, which assist the court in reaching a conclusion. 2. The costs of copies obtained in discovery, even if the copies were not used at trial, unless an objecting party demonstrates that the copies were not reasonably necessary. C. Expert Witnesses 1. A reasonable fee for deposition and/or trial testimony, and the costs of preparation of any court ordered report. D. Witnesses 1. Costs of subpoena, witness fee, and service of witnesses for deposition and/or trial. E. Court Reporting Costs Other than for Depositions 1. Reasonable court reporter’s per diem for the reporting of evidentiary hearings, trial and post-trial hearings. F. Reasonable Charges Incurred for Requiring Special Masters, Guardians Ad Litem, and Attorneys Ad Litem II. Litigation Costs That May Be Taxed as Costs. A. Mediation Fees and Expenses. 1. Costs and fees of Mediator. B. Reasonable Travel Expenses. 1. Reasonable travel expenses of attorney. 2. Reasonable travel expenses of expert. 3. Reasonable travel expenses of witnesses. III. Litigation Costs That Should Not Be Taxed as Costs. A. The Cost of Long Distance Telephone Calls with Witnesses, both Expert and Non-Expert (including conferences concerning scheduling of depositions or requesting witnesses to attend trial). B. Any Expenses Relating to Consulting But Non-Testifying Experts. C. Cost Incurred in Connection with Any Matter Which Was Not Reasonably Calculated to Lead to the Discovery of Admissible Evidence. D. Travel Time. 1. Travel time of attorney(s). 2. Travel time of expert(s). Proposed ethics advisory opinion The Professional Ethics Committee has issued Proposed Advisory Opinion 00-2 (Reconsideration) reprinted below. Pursuant to Rule 4(c) and (d) of The Florida Bar Procedures for Ruling on Questions of Ethics, comments from Florida Bar members are solicited on the proposed opinion. The committee will consider any comments received at a meeting to be held at 2 p.m. on Friday, January 21, 2005 at the Hyatt Regency in Miami. Comments must contain the proposed advisory opinion number and clearly state the issues for the committee to consider. A written argument may be included explaining why the Florida Bar member believes the committee’s opinion is either correct or incorrect and may contain citations to relevant authorities. Comments should be submitted to Elizabeth Clark Tarbert, Ethics Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee 32399-2300, and must be postmarked no later than 30 days from the date of this publication. PROFESSIONAL ETHICS OF THE FLORIDA BAR PROPOSED ADVISORY OPINION 00-2 (Reconsideration) (October 1, 2004) The Committee has reconsidered Opinion 00-2 which discourages lawyers from being involved in settlement agreements in which an insurance company places funds directly into an account in a client’s name instead of sending the lawyer a check which is then deposited into the lawyer’s trust account. Opinion 00-2 concludes that this type of arrangement, sometimes known as a “Safe Haven Account” or “FUNDaccount,” prevents a lawyer from fulfilling his or her ethical obligations to third parties. See Rule 5-1.1 and Rule 5-1.2, Comment, Rules Regulating The Florida Bar. Additionally, the Committee was concerned about “reducing available funds that otherwise would be used to assist in the administration of justice through participation in the Supreme Court approved IOTA program.” The Committee is concerned that Opinion 00-2 might be interpreted as mandating limitations on the client’s ability to direct payments of the client’s share of settlement funds into specific financial accounts or to designated third party recipients without having those funds placed first in a lawyer’s trust account. The client has wide discretion in directing the manner in which the monies owed to the client are distributed provided, however, that the client may not direct payment of funds in a manner intended to avoid the client’s legal obligation to pay the client’s lawyers or to pay debts owed to third parties. The Committee believes that the concerns expressed in Opinion 00-2 can be avoided in a settlement where the only funds going directly from the insurance company into a client’s financial account or to another recipient designated by the client are monies owed to the client and the insurance company issues a separate check to the attorney for the remaining balance, including attorney’s fees, any applicable costs, and amounts owed to third parties. The attorney would then deposit these funds into his or her attorney trust account and distribute the funds in accordance with the attorney’s ethical obligations. This agreement gives a lawyer control over that portion of settlement proceeds covering fees, costs, and amounts to which third parties may have valid legal claims. This permits the lawyer to fulfill his or her ethical duties under Rule 5-1.1 and Rule 5-1.2, Comment, Rules Regulating The Florida Bar. It also allows for the collection of interest on these funds, through placement in an IOTA account when required by Rule 5-1.1(e). In conclusion, a lawyer may participate in an arrangement where an insurance company pays only that portion of the settlement proceeds owed directly to the client into a client’s financial account or to another recipient designated by the client. As stated in Opinion 00-2, however, a lawyer should not participate in a settlement if the funds deposited into the client’s account include the attorney’s fees, costs and funds to which a third party may have a claim. Bar rules proposals to be filed The Board of Governors of The Florida Bar published a notice in the October 15 News of filing with the Supreme Court of Florida, on or about November 15, a petition to amend the Rules Regulating The Florida Bar. The amendments reflect changes favorably recommended by the Board of Governors of The Florida Bar after reviewing changes made to the ABA Model Rules in 2002 at the recommendation of the ABA Ethics Commission 2000. The following two items were inadvertently omitted from that notice: RULE 4-1.8 CONFLICT OF INTEREST; PROHIBITED AND OTHER TRANSACTIONS *** (k) While lawyers are associated in a firm, a prohibition in the foregoing subdivisions (a) through (i) that applies to any one of them shall apply to all of them. *** RULE 5-1.1 TRUST ACCOUNTS *** Comment *** The obligations of a lawyer under this chapter are independent of those arising from activity other than rendering legal services. For example, a lawyer who serves only as an escrow agent is governed by the applicable law relating to fiduciaries even though the lawyer does not render legal services in the transaction and is not governed by this rule. *** Additionally, a few minor editorial corrections not affecting the substance of the rules were made after publication of the October 15, 2004 notice. An errata sheet and the full corrected text of the entire rules changes in legislative format can be found on The Florida Bar website at www.flabar.org under Organization, Committees, Special, Special Committee to Review the ABA Model Rules 2002. A copy of the consolidated submission of the entire rules package may be requested by contacting the Ethics Department, The Florida Bar, 651 East Jefferson Street, Tallahassee, 32399-2300 or calling (850) 561-5600, Ext. 5780. Members who desire to comment on any of these proposed amendments may do so within 30 days of the filing of the Bar’s petition. The petition will be filed on or about December 1, in order to accommodate this correction notice. Comments should be filed directly with the clerk of the Supreme Court of Florida, and a copy must be served on the executive director of The Florida Bar. Rule 1-21.1, Rules Regulating The Florida Bar, governs these proceedings. Supreme Court acts on motions to disqualify < p> Emphasizing the need for an immediate ruling when a motion to disqualify a trial judge is made during a hearing or trial, the Florida Supreme Court adopted amendments proposed by the Rules of Judicial Administration Committee. Florida Rule of Judicial Administration 2.160, Disqualification of Trial Judges, was amended by the court on October 7 in case no. SC03-2169. The court had requested proposed amendments to make rule 2.160(f) consistent with its holding in Tableau Fine Art Group, Inc. v. Jacoboni, 853 So. 2d 299, 303 (Fla. 2003), that a motion for judicial disqualification “must be ruled on within 30 days following its presentation to the court.” Besides technical changes for making the rule more readable, the following substantive changes were made: • The movant is required to serve, rather than merely send, a copy of the motion to the judge in question. • The trial judge “shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). • If the judge does not rule within 30 days, “the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.” The amendments become effective January 1, 2005, at 12:01 a.m.