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December 1, 2013
Diversion to Disbarment, the Florida lawyer discipline system

By Brian D. Burgoon
Disciplinary Review Committee Chair

The summary of disciplinary actions is often the first section many attorneys turn to when they receive the latest edition of The Florida Bar News. For some, it is like a driver rubbernecking past an accident scene to see what happened and if someone they know was involved. For others, it is to learn from their peers’ mistakes in order to help them remain ethical and professional in their own practices. While many may be interested in the disciplinary cases, few realize the complexity of the lawyer regulation system and how the cases work their way through the system.

The Players
The ultimate authority to discipline lawyers in Florida rests with the Florida Supreme Court. The Florida Bar, as an arm of the Florida Supreme Court, serves in a number of capacities, including intake, screening, and investigation of inquiries and complaints, ultimately prosecuting appropriate cases and arguing appeals of cases before the Florida Supreme Court.

Brian D. Burgoon Lawyers and public members make up the local grievance committees, which investigate cases that have made it past the preliminary screening and investigation stages. Grievance committees conduct further investigation, and serve in a grand jury-type role in determining whether probable cause of a disciplinary violation exists.

A case in which probable cause is found is then filed with the Florida Supreme Court. The court appoints a county judge, circuit judge, or senior judge to serve as the referee to conduct the trial of the case, which is prosecuted by Florida Bar counsel. Upon conclusion of the trial, the referee issues a report containing findings of fact, conclusions of law, recommendations regarding guilt for each violation charged, and recommendations on sanctions.

The Florida Bar Board of Governors serves in an oversight role at all stages of the disciplinary review process. Each elected board member serves as the “designated reviewer” of the cases that come before grievance committees in their circuit. In addition, many board members serve on the board’s largest committee — the Disciplinary Review Committee, which oversees the prosecution and appeals of disciplinary cases. The Disciplinary Review Committee makes recommendations to the full Board of Governors as to whether the Bar should — among other things — overturn grievance committee actions or appeal the decisions of the referees, including findings regarding guilt and the recommended sanctions.

The Florida Supreme Court reviews the reports of the referee and any arguments in the event of an appeal or request for briefing, makes the final determination of whether the respondent is guilty, and issues the appropriate sanction.

The Expense of The Florida Bar Disciplinary System
The Florida Bar fields thousands of inquiries and complaints against Florida lawyers each year. Of those, following preliminary screening, an annual average of nearly 7,600 discipline cases are opened. It is extremely costly to investigate all the complaints that are filed and to prosecute those that make it past the investigative stages. In addition to other professional staff that assist in all aspects of the lawyer regulation system, The Florida Bar employs 32 attorneys who serve as Bar counsel located in five branch offices across Florida.

The legal profession is self-regulated, and no public funds are spent on lawyer discipline. Costs of prosecution of each case are typically taxed against an attorney found guilty of misconduct. While the Bar is projecting that recoupment of those costs will yield just over $730,000 in revenue this year, the bulk of the costs for attorney discipline is borne by lawyers funded by annual membership fees. The projected cost attributable to attorney discipline in the 2013-14 fiscal year is in excess of $14 million, comprising approximately 35 percent of the expenses in the Bar’s budget.

Possible Sanctions
There are a number of different potential disciplinary sanctions that a lawyer faces after being found guilty of a disciplinary violation.

(1) Disbarment. Disbarment is the most severe sanction. If not otherwise specified, a disbarred lawyer can seek readmission after five years by applying through the Florida Board of Bar Examiners (which would require retaking the bar exam and undergoing a new character and fitness review). Some disbarments specify a longer period of time before a disbarred attorney can seek readmission, and the court can order permanent disbarment. Disbarments are common in situations involving attorneys who have lied, cheated, stolen, had serious trust account violations, or been convicted of a felony.

(2) Disbarment on Consent / Disciplinary Revocation. Sometimes attorneys decide not to contest the charges that have been filed and choose to surrender their Bar license in lieu of defending against disciplinary proceedings. That process has taken on several different names over the years, including disbarment on consent and disciplinary revocation, and is considered “tantamount to disbarment.” Florida Bar v. Hale, 762 So. 2d 515, 517 (Fla. 2000).” R. Regulating Fla. Bar 3-7.12, comment. As with disbarments, unless a longer time is specified, the minimum time between a disciplinary revocation/disbarment on consent and eligibility to apply for readmission to the Bar is five years.

(3) Suspension. Suspensions can range from one day to three years. Every suspension requires a lawyer to wind down his or her practice within 30 days before the effective date of the suspension. During the 30-day wind-down period, a suspended lawyer is prohibited from taking on new cases, and must certify to the Bar that he or she has mailed a copy of the suspension order to all clients, opposing counsel, and judges before whom he or she has cases. There are two types of suspensions: rehabilitative and non-rehabilitative suspensions.

(a) Non-Rehabilitative Suspension (90 days or less). A lawyer suspended for 90 days or less is automatically reinstated upon the completion of the suspension, and can then immediately begin practicing law without any further action.

(b) Rehabilitative Suspension (91 days to 3 years). A suspension for 91 days or more is a “rehabilitative suspension,” which requires the lawyer to prove rehabilitation before he or she is eligible for reinstatement. For example, a lawyer suspended for 180 days is not automatically eligible to practice law on the 181st day. Instead, that suspended lawyer must establish that he or she has been rehabilitated before being eligible to practice again. The reinstatement process can take several months, as Bar counsel must investigate the petition for reinstatement, and the matter goes back to the original referee for a hearing.

Suspended lawyers who practice law while suspended are treated as being in contempt of court, and could subject themselves to a lengthier suspension or possibly disbarment.

(4) Felony Suspension or Emergency Suspension. There are two additional types of interim suspensions that are entered on an emergency basis while an underlying disciplinary case is being prosecuted. The Bar typically requests an immediate suspension when a lawyer is convicted of a felony. Also, when there is evidence that a lawyer has stolen money, for the protection of the public, the Bar will often petition the Florida Supreme Court to enter an immediate emergency suspension until resolution of the underlying disciplinary case. Finally, a suspension or disbarment of a lawyer in another jurisdiction is also grounds for an emergency suspension. R. Regulating Fla. Bar 3-7.2(l)(2).

(5) Public Reprimand. Another potential sanction is a public reprimand. Public reprimands are reported with other Florida Supreme Court decisions in the Southern Reporter, and published in the News and on the Bar’s website. Some public reprimands are administered before the Board of Governors; others are administered by letter.

(6) Probation. There are a number of probationary measures that can be ordered in connection with discipline, either as the sole discipline or in addition to other disciplinary measures. Probation can include mandatory meetings with and audits by an accountant, meetings with a mental health professional, drug and alcohol testing, reporting requirements, or other conditions.

(7) Admonishment. An admonishment for minor misconduct is the lowest form of discipline. An admonishment can be contained in a Supreme Court order, or may be issued by a grievance committee or the Board of Governors. Alternatively, a grievance committee may refer a lawyer alleged to be guilty of minor misconduct to diversion (see below) in lieu of a disciplinary sanction.

(8) Other Measures. Other measures also can be ordered in addition to the sanctions described above, such as a requirement that the respondent pay restitution, arbitrate a fee dispute, disgorge attorneys’ fees or ill-gotten gains, or retake the ethics portion of the bar exam. The respondent also could be ordered to complete a practice and professional enhancement program, such as:

* Ethics school,

* Stress management workshop,

* Trust and accounting workshop,

* Advertising workshop,

* Referral to Florida Lawyers Assistance, Inc. (FLA, Inc.) and possible requirement to enter into a rehabilitative contract,

* Referral to Law Office Management Assistance Service (LOMAS) for practice management assistance,

* Requirement to complete additional CLE hours in a particular area.

Alternatives to Discipline - Diversion
For relatively minor transgressions, an accused attorney’s grievance matter may be diverted or removed from the discipline process, with one or more conditions, such as the completion of a practice and professionalism enhancement program. Diversion is not considered “discipline” that would remain on an attorney’s permanent record.

The Numbers
An average of nearly 7,600 discipline cases were opened each year over the past five years. Approximately 25 percent of those cases are forwarded to the branch offices for further investigation. In the most recent year for which the Bar has statistics, grievance committees voted on more than 320 cases, which resulted in a probable cause finding on at least one rule violation in about 30 percent of the cases, and a finding of no probable cause in slightly more than half of the cases.

The five-year average of disciplinary sanctions imposed annually includes 80 disbarments, 142 suspensions, 40 public reprimands, 41 admonishments, and 40 probation orders. In addition, an average of 21 lawyers were felony suspended on an emergency basis. A number of alternatives to discipline were also imposed, including an annual average of 112 orders of diversion.

This 10,000-foot overview of the Florida attorney disciplinary system provides only a glimpse into the Bar’s system of self-regulation of its lawyers. This system is designed to rehabilitate wayward lawyers, punish them when appropriate, and, in the most severe cases, remove the worst offenders from the profession in order to prevent them from harming clients in the future. Equally important, this system is in place in order to protect the public and ensure confidence in the legal profession.

Special thanks to Ken Marvin, director of Lawyer Regulation, and Arne Vanstrum, associate director of Lawyer Regulation, for their contributions to this article.

Brian D. Burgoon has served as an out-of-state member of The Florida Bar Board of Governors since 2000, is current chair of The Florida Bar Disciplinary Review Committee, and serves on The Florida Bar Executive Committee. He also served as a member of the statewide Hawkins Commission on Review of the Discipline System. He practices business litigation, civil litigation, and personal injury with The Burgoon Law Firm in Atlanta. He can be reached at 404-260-5147 or burgoon@burgoonlaw.com.

[Revised: 09-17-2014]