November 15, 2002 Gary Blankenship Senior Editor Regular News Board presented with a revised ‘sex with clients’ rule Board presented with a revised ‘sex with clients’ rule Senior EditorA revised rule on attorneys having sex with clients and another amendment that attempts to define how lawyer costs should be billed to clients have been presented to the Board of Governors.Those and other suggested rule changes were presented to the board on first reading in October, and will be back for final approval at the board’s January meeting. The board also took final action on several other proposed rules, including setting standards on disciplining lawyers who violate advertising rules.Board member Bob Brush, chair of the Disciplinary Procedure Committee, said the committee considered several versions of the sexual conduct rule before adopting the final proposal, which provides more definitions on prohibited behavior.“It deals with a problem area and it sets more standards,” he told the board. “Basically, if a client is taken advantage of, it’s unethical.”Rule 4.84(i) currently prohibits attorneys from engaging in sexual conduct with a client that exploits the attorney-client relationship. The proposed changes include a representative of the client in the prohibition and that the conduct may not affect the interests of the client or representative.Specific examples cited include: “1) requiring or demanding sexual relations with a client or a representative of a client incident to or as a condition of a legal representation, 2) employing coercion, intimidation, or undue influence in entering into sexual relations with a client or a representative of a client, or 3) continuing to represent a client if the lawyer’s sexual relations with the client, or a representative of the client, cause the lawyer to render incompetent representation.”On the costs issue, the DPC proposed an amendment to Rule 4-1.5(a) and (b). Brush said it generally would provide that if costs are reasonably explained in writing, then the costs would be presumed reasonable. If the costs are not explained in writing, then the changes set out standards for determining reasonable costs. It also provides a safe harbor when costs are set out in writing.Bar Counsel Tony Boggs said the change, which went through considerable debate and revising, came at the request of grievance committees, which were seeking guidance on how to determine if costs were reasonable.Another change would specify that a fee splitting arrangement between lawyers not in the same firm would not have to be filed with the Bar unless it was rejected by the judge who reviews it.Board member Brian Burgoon said he was concerned about the cost issue, noting he works at a large firm and nonlawyer staff determine costs and send the bills to clients, not lawyers.The board does not take votes during first readings.The board did give final approval on second reading to the Standards for Imposing Lawyer Sanctions in Advertising and Solicitation Rule Violations. Those had their first reading at the board in August. (See story in the September 15 Bar News. )Those standards will guide Bar counsel, grievance committees, the board, referees, and the Supreme Court in setting sanctions in cases brought by the statewide grievance committee that handles advertising rule violations.Rules amendments, which still must go to the Supreme Court, approved by the board include:• Adding to delinquency rules Bar members who fail to pay restitution as part of a grievance or a diversion case, the same as for failure to pay Bar annual fees. • Changing the minimum $750 cost for investigating a grievance case to a sliding scale between $1,000 and $5,000, depending on how far a case proceeds through the system. • Merging the grievance mediation and fee arbitration programs. • An informal policy that the Bar will defer to Florida Lawyers Assistance, Inc., the task of monitoring probation in rehabilitative suspension cases where the sole condition of probation is in compliance with requirements of an FLA contract.Other items on first reading, which will come back to the board in December or January, include:• Clarifying rules that lawyer referral services must provide a list of lawyer members to the Bar, with those lawyers being held responsible if the service violates Bar rules. • Specifying that lawyers can keep a small amount of extra money in their trust accounts to cover bank charges and fees. Brush noted that Bar auditors recommend that practice to lawyers and the amendment would codify within Bar rules that the practice is acceptable.