In Re: Amendments to Rules Regulating The Florida Bar - Chapter 4

Supreme Court of Florida
____________

No. SC2024-0032
____________

IN RE: AMENDMENTS TO RULES REGULATING THE FLORIDA
BAR – CHAPTER 4.

August 29, 2024

PER CURIAM.

The Florida Bar has filed a petition proposing amendments to

the following portions of Chapter 4 of the Rules Regulating The

Florida Bar (rules): Preamble: A Lawyer’s Responsibilities; rule 4-1.1

(Competence); rule 4-1.3 (Diligence); rule 4-1.6 (Confidentiality of

Information); rule 4-5.1 (Responsibilities of Partners, Managers, and

Supervisory Lawyers); rule 4-5.3 (Responsibilities Regarding

Nonlawyer Assistants); rule 4-7.13 (Deceptive and Inherently

Misleading Advertisements); rule 4-7.15 (Unduly Manipulative or

Intrusive Advertisements); and rule 4-8.6 (Authorized Business

Entities). 1 The Florida Bar’s Board of Governors approved the

1. We have jurisdiction. See art. V, § 15, Fla. Const.; see also
R. Regulating Fla. Bar 1-12.1.
proposed amendments, and the Bar published the proposed

amendments for comment in The Florida Bar News. No comments

were received.

Having considered the Bar’s petition, we adopt the

amendments to the Rules Regulating The Florida Bar proposed by

the Bar, except for its proposal to delete references to “zeal” and

“zealous” in the Preamble to Chapter 4 and in the comment to rule

4-1.3. We also decline to adopt the proposed amendments to rule

4-8.6 to require individuals who are subject to an emergency

suspension or indefinite suspension over 91 days to sever

employment with or financial interests in authorized business

entities.

As to the amendments proposed to the Preamble and rule

4-1.3, the Bar proposes deleting the terms because “the

contemporary, plain language use of and reference to zeal are often

associated with negative extremist behavior and character,” and

because the terms have been used by lawyers to justify

unprofessional conduct. But the public meaning of the terms has

changed little since we first adopted the Preamble and rule 4-1.3,

and we have made it abundantly clear that zealous advocacy on

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behalf of a client is not an excuse for any type of misconduct under

the rules. See, e.g., Fla. Bar v. Schwartz, 382 So. 3d 600, 611 (Fla.

2024) (stating that “the requirement of providing zealous

representation is not a sword to wield as an excuse to otherwise

engage in misconduct”); Fla. Bar v. Norkin, 132 So. 3d 77, 90 (Fla.

2013) (“Effective and zealous representation does not require

antagonistic or acrimonious behavior.” (quoting the Guidelines for

Professional Conduct)).

As to the amendments proposed to rule 4-8.6(e), the Bar

proposes requiring an individual subject to an emergency or other

indefinite suspension lasting 91 days or longer to sever employment

with and financial interests in an authorized business entity. The

rule currently applies to individuals with suspensions lasting 91

days or longer who have been found guilty of committing

misconduct and are suspended as part of the discipline for those

findings. With emergency or indefinite suspensions, there is no

such finding of guilt and the suspension is not related to a finding

of guilt. Individuals suspended under these provisions may not yet

have had the opportunity to defend themselves against pending

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discipline allegations. Because of this distinction, we decline to

adopt the Bar’s proposed amendments to rule 4-8.6(e).

In addition to various grammatical changes, we amend the

Comments to rules 4-1.1, 4-1.6, 4-5.1, and 4-5.3, adding a warning

about the necessity to take care in using generative artificial

intelligence. We also amend rules 4-7.13 and 4-7.15 to allow for

testimonials of a celebrity who is a current or former client, so long

as the testimonial otherwise complies with the rules.

Accordingly, we amend the Rules Regulating The Florida Bar

as reflected in the appendix to this opinion. New language is

indicated by underscoring; deletions are indicated by struck-

through type. The amendments shall become effective October 28,

2024.

It is so ordered.

MUÑIZ, C.J., and CANADY, LABARGA, COURIEL, GROSSHANS,
FRANCIS, and SASSO, JJ., concur.

THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER
THE EFFECTIVE DATE OF THESE AMENDMENTS.

Original Proceeding – Florida Rules Regulating The Florida Bar

Roland Sanchez-Medina, Jr., President, Rosalyn Sia Baker-Barnes,
President-elect, Joshua E. Doyle, Executive Director, and Elizabeth

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Clark Tarbert, Division Director, Lawyer Regulation, The Florida
Bar, Tallahassee, Florida,

for Petitioner

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APPENDIX

RULE 4-1.1. COMPETENCE

[No Change]

Comment
Legal knowledge and skill

[No Change]

Thoroughness and preparation

[No Change]

Maintaining competence

To maintain the requisite knowledge and skill, a lawyer should
keep abreast of changes in the law and its practice, engage in
continuing study and education, including an understanding of the
benefits and risks associated with the use of technology, including
generative artificial intelligence, and comply with all continuing
legal education requirements to which the lawyer is subject.

RULE 4-1.6. CONFIDENTIALITY OF INFORMATION

(a) – (f) [No Change]

Comment

The lawyer is part of a judicial system charged with upholding
the law. One of the lawyer’s functions is to advise clients so that
they avoid any violation of the law in the proper exercise of their
rights.

This rule governs the disclosure by a lawyer of information
relating to the representation of a client during the lawyer’s
representation of the client. See rule 4-1.18 for the lawyer’s duties

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with respect to information provided to the lawyer by a prospective
client, rule 4-1.9(c) for the lawyer’s duty not to reveal information
relating to the lawyer’s prior representation of a former client, and
rules 4-1.8(b) and 4-1.9(b) for the lawyer’s duties with respect to the
use of confidential information to the disadvantage of clients and
former clients.

A fundamental principle in the client-lawyer relationship is
that, in the absence of the client’s informed consent, the lawyer
must not reveal information relating to the representation. See
terminology for the definition of informed consent. This contributes
to the trust that is the hallmark of the client-lawyer relationship.
The client is thereby encouraged to seek legal assistance and to
communicate fully and frankly with the lawyer even as to
embarrassing or legally damaging subject matter. The lawyer needs
this information to represent the client effectively and, if necessary,
to advise the client to refrain from wrongful conduct. Almost
without exception, clients come to lawyers in order to determine
their rights and what is, in the complex of laws and regulations,
deemed to be legal and correct. Based on experience, lawyers know
that almost all clients follow the advice given, and the law is upheld.

The principle of confidentiality is given effect in 2 related
bodies of law, the attorney-client privilege (which includes the work
product doctrine) in the law of evidence and the rule of
confidentiality established in professional ethics. The attorney-client
privilege applies in judicial and other proceedings in which a lawyer
may be called as a witness or otherwise required to produce
evidence concerning a client. The rule of client-lawyer
confidentiality applies in situations other than those where evidence
is sought from the lawyer through compulsion of law. The
confidentiality rule applies not merely to matters communicated in
confidence by the client but also to all information relating to the
representation, whatever its source. A lawyer may not disclose
confidential information except as authorized or required by the
Rules Regulating The Florida Bar or by law. However, none of the
foregoing limits the requirement of disclosure in subdivision (b).
This disclosure is required to prevent a lawyer from becoming an

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unwitting accomplice in the fraudulent acts of a client. See also
Scope.

The requirement of maintaining confidentiality of information
relating to representation applies to government lawyers who may
disagree with the policy goals that their representation is designed
to advance.

Authorized disclosure

[No Change]

Disclosure adverse to client

[No Change]

Withdrawal

[No Change]

Dispute concerning lawyer’s conduct

[No Change]

Disclosures otherwise required or authorized

[No Change]

Detection of Conflicts of Interest
[No Change]

Acting Competently to Preserve Confidentiality
Paragraph (e) requires a lawyer to act competently to
safeguard information relating to the representation of a client
against unauthorized access by third parties and against
inadvertent or unauthorized disclosure by the lawyer or other
persons who are participating in the representation of the client or
who are subject to the lawyer’s supervision. See rules 4-1.1, 4-5.1
and 4-5.3. For example, a lawyer should be aware that generative
artificial intelligence may create risks to the lawyer’s duty of
confidentiality. The unauthorized access to, or the inadvertent or
unauthorized disclosure of, information relating to the

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representation of a client does not constitute a violation of
paragraph (e) if the lawyer has made reasonable efforts to prevent
the access or disclosure. Factors to be considered in determining
the reasonableness of the lawyer’s efforts include, but are not
limited to, the sensitivity of the information, the likelihood of
disclosure if additional safeguards are not employed, the cost of
employing additional safeguards, the difficulty of implementing the
safeguards, and the extent to which the safeguards adversely affect
the lawyer’s ability to represent clients (e.g., by making a device or
important piece of software excessively difficult to use). A client may
require the lawyer to implement special security measures not
required by this rule or may give informed consent to forgo security
measures that would otherwise be required by this rule. Whether a
lawyer may be required to take additional steps to safeguard a
client’s information in order to comply with other law, for example
state and federal laws that govern data privacy or that impose
notification requirements on the loss of, or unauthorized access to,
electronic information, is beyond the scope of these rules. For a
lawyer’s duties when sharing information with nonlawyers outside
the lawyer’s own firm, see the comment to rule 4-5.3.

When transmitting a communication that includes information
relating to the representation of a client, the lawyer must take
reasonable precautions to prevent the information from coming into
the hands of unintended recipients. This duty, however, does not
require that the lawyer use special security measures if the method
of communication affords a reasonable expectation of privacy.
Special circumstances, however, may warrant special precautions.
Factors to be considered in determining the reasonableness of the
lawyer’s expectation of confidentiality include the sensitivity of the
information and the extent to which the privacy of the
communication is protected by law or by a confidentiality
agreement. A client may require the lawyer to implement special
security measures not required by this rule or may give informed
consent to the use of a means of communication that would
otherwise be prohibited by this rule. Whether a lawyer may be
required to take additional steps in order to comply with other law,
for example state and federal laws that govern data privacy, is
beyond the scope of these rules.

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Former client

[No Change]

RULE 4-5.1. RESPONSIBILITIES OF PARTNERS, MANAGERS,
AND SUPERVISORY LAWYERS

(a) Duties Concerning Adherence to Rules of Professional
Conduct. A partner in a law firm, and a lawyer who individually or
together with other lawyers possesses comparable managerial
authority in a law firm, shallmust make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance
that all lawyers therein conform to the Rules of Professional
Conduct.

(b) Supervisory Lawyer’s Duties. Any lawyer having direct
supervisory authority over another lawyer shallmust make
reasonable efforts to ensure that the other lawyer conforms to the
Rules of Professional Conduct.

(c) Responsibility for Rules Violations. A lawyer shall beis
responsible for another lawyer’s violation of the Rules of
Professional Conduct if:

(1) – (2) [No Change]

Comment

Subdivision (a) applies to lawyers who have managerial
authority over the professional work of a firm. See terminology. This
includes members of a partnership, the shareholders in a law firm
organized as a professional corporation, and members of other
associations authorized to practice law; lawyers having comparable
managerial authority in a legal services organization or a law
department of an enterprise or government agency, and lawyers
who have intermediate managerial responsibilities in a firm.
Subdivision (b) applies to lawyers who have supervisory authority
over the work of other lawyers in a firm.

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Subdivision (a) requires lawyers with managerial authority
within a firm to make reasonable efforts to establish internal
policies and procedures designed to provide reasonable assurance
that all lawyers in the firm will conform to the Rules of Professional
Conduct. Such policies and procedures include those designed to
detect and resolve conflicts of interest, identify dates by which
actions must be taken in pending matters, account for client funds
and property, consider safeguards for the firm’s use of technologies
such as generative artificial intelligence, and ensure that
inexperienced lawyers are properly supervised.

Other measures that may be required to fulfill the
responsibility prescribed in subdivision (a) can depend on the firm’s
structure and the nature of its practice. In a small firm of
experienced lawyers, informal supervision and periodic review of
compliance with the required systems ordinarily will suffice. In a
large firm, or in practice situations in which difficult ethical
problems frequently arise, more elaborate measures may be
necessary. Some firms, for example, have a procedure whereby
junior lawyers can make confidential referral of ethical problems
directly to a designated supervising lawyer or special committee.
See rule 4-5.2. Firms, whether large or small, may also rely on
continuing legal education in professional ethics. In any event the
ethical atmosphere of a firm can influence the conduct of all its
members and the partners may not assume that all lawyers
associated with the firm will inevitably conform to the rules.

Subdivision (c) expresses a general principle of personal
responsibility for acts of another. See also rule 4-8.4(a).

Subdivision (c)(2) defines the duty of a partner or other lawyer
having comparable managerial authority in a law firm, as well as a
lawyer having supervisory authority over performance of specific
legal work by another lawyer. Whether a lawyer has such
supervisory authority in particular circumstances is a question of
fact. Partners and lawyers with comparable authority have at least
indirect responsibility for all work being done by the firm, while a
partner or manager in charge of a particular matter ordinarily also
has supervisory responsibility for the work of other firm lawyers
engaged in the matter. Appropriate remedial action by a partner or

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managing lawyer would depend on the immediacy of that lawyer’s
involvement and the seriousness of the misconduct. A supervisor is
required to intervene to prevent avoidable consequences of
misconduct if the supervisor knows that the misconduct occurred.
Thus, if a supervising lawyer knows that a subordinate
misrepresented a matter to an opposing party in negotiation, the
supervisor as well as the subordinate has a duty to correct the
resulting misapprehension.

Professional misconduct by a lawyer under supervision could
reveal a violation of subdivision (b) on the part of the supervisory
lawyer even though it does not entail a violation of subdivision (c)
because there was no direction, ratification, or knowledge of the
violation.

Apart from this rule and rule 4-8.4(a), a lawyer does not have
disciplinary liability for the conduct of a partner, shareholder,
member of a limited liability company, officer, director, manager,
associate, or subordinate. Whether a lawyer may be liable civilly or
criminally for another lawyer’s conduct is a question of law beyond
the scope of these rules.

The duties imposed by this rule on managing and supervising
lawyers do not alter the personal duty of each lawyer in a firm to
abide by the Rules of Professional Conduct. See rule 4-5.2(a).

RULE 4-5.3. RESPONSIBILITIES REGARDING NONLAWYER
ASSISTANTS

(a) – (c) [No Change]

Comment

Lawyers generally employ assistants in their practice,
including secretaries, investigators, law student interns, and
paraprofessionals such as paralegals and legal assistants. Such
assistants, whether employees or independent contractors, act for
the lawyer in rendition of the lawyer’s professional services. A
lawyer must give such assistants appropriate instruction and

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supervision concerning the ethical aspects of their employment,
particularly regarding the obligation not to disclose information
relating to representation of the client. A lawyer should also
consider safeguards when assistants use technologies such as
generative artificial intelligence. The measures employed in
supervising nonlawyers should take account of the level of their
legal training and the fact that they are not subject to professional
discipline. If an activity requires the independent judgment and
participation of the lawyer, it cannot be properly delegated to a
nonlawyer employee.

Subdivision (b)(1) requires lawyers with managerial authority
within a law firm to make reasonable efforts to ensure that the firm
has in effect measures giving reasonable assurance that nonlawyers
in the firm and nonlawyers outside the firm who work on firm
matters act in a way compatible with the professional obligations of
the lawyer. See comment to rule 4-1.1 (retaining lawyers outside the
firm) and comment to rule 4-5.1(responsibilities with respect to
lawyers within a firm). Subdivision (b)(2) applies to lawyers who
have supervisory authority over nonlawyers within or outside the
firm. Subdivision (b)(3) specifies the circumstances in which a
lawyer is responsible for conduct of nonlawyers within or outside
the firm that would be a violation of the Rules of Professional
Conduct if engaged in by a lawyer.

Nothing provided in this rule should be interpreted to mean
that a nonlawyer may have any ownership or partnership interest in
a law firm, which is prohibited by rule 4-5.4. Additionally, this rule
does not permit a lawyer to accept employment by a nonlawyer or
group of nonlawyers, the purpose of which is to provide the
supervision required under this rule. This conduct is prohibited by
rules 4-5.4 and 4-5.5.

Nonlawyers Outside the Firm

A lawyer may use nonlawyers outside the firm to assist the
lawyer in rendering legal services to the client. Examples include
the retention of an investigative or paraprofessional service, hiring a
document management company to create and maintain a database
for complex litigation, sending client documents to a third party for

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printing or scanning, using generative artificial intelligence, and
using an Internet-based service to store client information. When
using these services outside the firm, a lawyer must make
reasonable efforts to ensure that the services are provided in a
manner that is compatible with the lawyer’s professional
obligations. The extent of this obligation will depend on the
circumstances, including the education, experience and reputation
of the nonlawyer; the nature of the services involved; the terms of
any arrangements concerning the protection of client information;
and the legal and ethical environments of the jurisdictions in which
the services will be performed, particularly with regard to
confidentiality. See also rules 4-1.1 (competence), 4-1.2 (allocation
of authority), 4-1.4 (communication with client), 4-1.6
(confidentiality), 4-5.4 (professional independence of the lawyer),
and 4-5.5 (unauthorized practice of law). When retaining or
directing a nonlawyer outside the firm, a lawyer should
communicate directions appropriate under the circumstances to
give reasonable assurance that the nonlawyer’s conduct is
compatible with the professional obligations of the lawyer.

Where the client directs the selection of a particular nonlawyer
service provider outside the firm, the lawyer ordinarily should agree
with the client concerning the allocation of responsibility for
monitoring as between the client and the lawyer. See Rule 1.2.
When making this allocation in a matter pending before a tribunal,
lawyers and parties may have additional obligations that are a
matter of law beyond the scope of these rules.

RULE 4-7.13. DECEPTIVE AND INHERENTLY MISLEADING
ADVERTISEMENTS

A lawyer may not engage in deceptive or inherently misleading
advertising.

(a) – (b) [No Change]

Comment

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Material omissions

[No Change]

Implied existence of nonexistent fact

[No Change]

Predictions of success

[No Change]

Past results

[No Change]

Comparisons

[No Change]

Characterization of skills, experience, reputation, or record

[No Change]

Areas of practice

[No Change]

Dramatizations

[No Change]

Implying lawyer will violate rules of conduct or law

[No Change]

Testimonials

A testimonial is a personal statement, affirmation, or
endorsement by any person other than the advertising lawyer or a
member of the advertising lawyer’s firm regarding the quality of the
lawyer’s services or the results obtained through the representation.
Clients as consumers are well-qualified to opine on matters such as
courtesy, promptness, efficiency, and professional demeanor.

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Testimonials by clients on these matters, as long as they are
truthful and are based on the actual experience of the person giving
the testimonial, are beneficial to prospective clients and are
permissible. A current or former client who is a celebrity may offer a
truthful testimonial if the testimonial complies with the
requirements of this rule.

Florida bar approval of ad or lawyer

[No Change]

Judicial, executive, and legislative titles

[No Change]

Implication of association or affiliation with another lawyer or
law firm

[No Change]

RULE 4-7.15. UNDULY MANIPULATIVE OR INTRUSIVE
ADVERTISEMENTS

A lawyer may not engage in unduly manipulative or intrusive
advertisements. An advertisement is unduly manipulative if it:

(a) –(b) [No Change]

(c) contains the voice or image of a celebrity, except that a
lawyer may use the:

(1) voice or image of a local announcer, disc jockey or
radio personality who regularly records advertisements so long as
the person recording the announcement does not endorse or offer a
testimonial on behalf of the advertising lawyer or law firm, or

(2) testimonial of a celebrity who is a current or former
client if the testimonial complies with the requirements of this
subchapter; or

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(d) [No change]

Comment
Unduly Mmanipulative Ssounds and Iimages

[No Change]

Use of Ccelebrities

A lawyer or law firm advertisement may not contain the voice
or image of a celebrity with limited exceptions. A celebrity is an
individual who is known to the target audience and whose voice or
image is recognizable to the intended audience. A person can be a
celebrity on a regional or local level, not just a national level. Local
announcers or disc jockeys and radio personalities are regularly
used to record advertisements. Use of a local announcer or disc
jockey or a radio personality to record an advertisement is
permissible under this rule as long as the person recording the
announcement does not endorse or offer a testimonial on behalf of
the advertising lawyer or law firm. Additionally, an advertisement
may include the testimonial of a celebrity who is a current or former
client of the advertising lawyer or law firm if the testimonial
complies with all other applicable requirements of this subchapter.

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