Family Law Section proposes access options

first_img October 1, 2001 Gary Blankenship Senior Editor Regular News Family Law Section proposes access options Senior EditorA proposed Bar rule amendment clarifying that attorneys should not take mortgages on clients’ property to guarantee their fees has been opposed by the Family Law Section. The section executive council, meeting September 6 at the Bar’s General Meeting, said that change would limit citizens’ access to lawyers and the courts. And after passing a motion to express that to the Bar Board of Governors, the council also passed motions supporting efforts for “unbundled” legal services and to allow lawyers to receive a percentage of property divided between a couple in a dissolution action. Both, council members said, would improve access to justice. Those actions came as part of a busy meeting where the section also created a new contest for law students, prepared for next year’s legislative session, and worked on plans for upcoming section retreats. The section had been asked to comment on a proposed change to Rule 4-1.8(i), which is pending before the Bar’s Disciplinary Procedure Committee. The committee is seeking to clarify the rule which prohibits attorneys taking a financial interest in their clients’ cause of action, and is proposing to add language that taking a mortgage constitutes taking an interest. (DPC meets again October 18 and has invited the section to present its views.) The section had asked its Ethics and Attorneys Fees Committee to study the DPC proposal and the committee in turn prepared a report recommending against the change. “It really speaks to the heart of what public policy is in Florida, which is public access to the court,” said Beverly Vesel, chair of the fee committee. “We believe their rule change would limit access to the courts and limit access to counsel, particularly for the impecunious spouse who could not come up with money during litigation.” In addition, she said, “We very strongly believe that this rule is problematic because it interferes with clients’ rights to control their own property.” But council member Alan Rubenstein said he was concerned that lawyers might have conflicts if they desired some client’s property – such as a diamond ring – in which they had acquired a lien or interest. “I don’t know why I should become a hock shop,” he said. And circuit Judge Linda Vitale said she’s seen cases where one party quits working to force attorneys’ fees to be paid from the assets and attorneys who have taken interests in corporations and residences to secure fees. “You’re taking assets away from the courts that should be divided between the spouses,” she said. Section Chair Norman Levine disagreed. “The rules already provide a remedy for lawyers who charge unreasonable fees or take unreasonable actions with reference to fees,” he said. “The conduct that you’re talking about is conduct that has always existed. This is delineating conduct that in the past has been acceptable.” The council eventually rejected submitting the fee committee’s report, but authorized Levine by a 12-3 vote to write a letter to the DPC expressing the section’s opposition to the rule change and using information from the committee’s report. Levine then asked the council to consider two other access related issues. One was to reiterate the section’s strong support for unbundled legal services, or allowing an attorney to handle only part of a case while the client does the remainder. The second was to allow attorneys to charge percentage or contingency fees in a dissolution case based on the amount of the distributed assets. “They are throwing us an issue to restrict access [with the proposed change to Rule 4-1.8], and we are saying to this we are opposed to this rule and in fact we think a rule should be developed to expand access,” Levin said of his proposals. The council discussed problems associated with unbundling and then overwhelmingly approved Levine’s proposal. On the fee issue, council members said that could present many challenges, including a public relations problem because it could be seen as lawyers trying to grab higher fees rather than as a way to improve access. Judge Renee Goldenberg said it might be better to seek a statutory change from the legislature rather than a rule change. Rubinstein agreed and noted it would be similar to the fee that estate attorneys and personal representatives get for their work. Vitale warned that the issue could be perceived as “family lawyers want to take X percentage away from the family’s assets and the children and their college funds.. . . This is probably one of your worst public relations issues that you have faced in a long time. This is going to be poorly received by the public.” The council voted to refer the matter to the Ethics and Attorneys Fees Committee to draft a specific proposal and recommend whether it should be pursued statutorily or through a rule change. (Research by Bar staff shows that current Bar Rule 4-1.5(f)(3) prohibits contingency fees in domestic relations cases. Also, caselaw has been against such fees as bad public policy. The grounds for both has been that lawyers getting a percentage of the assets would have a conflict if the parties wanted to reconcile.) On other matters, the council set up the Family Law Practice Competition open to all students at Florida law schools. As approved the competition will have two levels, one intra-school among all interested students and then a final contest among the winners at each law school. The competition will cover such areas as litigation, appeals, mediation, counseling, and courtroom skills including cross examination. The first finals will tentatively be held at the January 2003 Midyear Meeting. “We have a virtual nonpresence in the law schools and hopefully this will give us a presence,” Levine said. The section’s next retreat is scheduled for December 12-15 and will focus on families and raising children. That will be followed by a May 15-18 retreat where courses in law office management will be offered, including free training from Atticus, a management consulting company, for attendees. Both retreats, Levine said, will feature many family related activities. Legislatively, the section discussed a recent meeting of the House Judicial Oversight Committee that dealt with child support guidelines. Section members noted there is interest in overhauling the guidelines, but the committee appeared reluctant to budget the $200,000 or more it would take to do the thorough study needed. Family Law Section proposes access optionslast_img

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